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An Analysis: Constitutional Protection Against Ex-Post Facto Laws

Fundamental Rights are those that are necessary or fundamental for a person's welfare. The Part III of the Indian Constitution's Fundamental Rights guarantees civil rights so that all Indians can enjoy peaceful and harmonious lives as Indian citizens. The rights to constitutional remedies for the protection of civil rights through the use of writs like habeas corpus are among them.

These include individual rights that are shared by the majority of liberal democracies, such as equality before the law, freedom of speech and expression, the right to peaceful assembly and association, and the freedom to practise one's religion. Punishments for violating these rights are outlined in the Indian Penal Code and are up to the judge's discretion. Every Indian citizen has the right to enjoy some fundamental human rights for the healthy and harmonious development of their personality. All citizens are entitled to these rights, regardless of their race, location of birth, religion, caste, creed, colour, or gender.

They are subject to limitations and are enforceable by the courts. The Bill of Rights in England, the Bill of Rights in the United States, and the Declaration of Human Rights in France are just a few of the many sources that the Rights have their roots in. According to the history of the incorporation of ex post facto laws, the Jawaharlal Nehru committee, which was appointed by the All-Party Conference, included a provision in its 1928 report that was included in a draught that was proposed by Dr. B.R. Ambedkar and the constitutional adviser Sri B.N. Rao.

This indicates that when our constitution's framers were drafting Article 20 and enumerating certain rights, one of the rights recommended was protection from punishment under ex post facto law. The right to life and personal liberty is a promise of protection from criminal conviction.

No one may receive a sentence that exceeds what the applicable local legislation at the time specifies, as stated in Article 20. This legal axiom is founded on the idea that no criminal legislation can be implemented retroactively; hence, for an act to qualify as an offence, it must have been unlawful at the time it was committed.

What Is An Ex Post Facto Law

Article 20 of Indian Constitution Article 20 of Indian Constitution confers three rights on a person who is accused of an offence. In other words, it lays down certain safeguards to the person accused of crimes as:
  1. Ex post facto law (Art. 20(1)).
  2. Double Jeopardy (Art. 20(2); and
  3. Self-incrimination (Art. 20(3).

Protection from Ex post facto law (Art. 20(1) Article 20(1):
No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

According to Article 20 (1), no person shall be found guilty of an offence unless they violated a law that was in effect when the Act in question was committed, nor shall they face a penalty that is greater than what would have been allowed under the law that was in effect at the time the offence was committed. Ex-Post facto law refers to this.

This means that lawmakers cannot enact laws that punish people for crimes they committed before the law went into effect. This indicates that an old act cannot be punished by a new legislation. If a specific action was lawful under the applicable laws in effect at the time it was taken, then the person who cannot be found guilty under a legislation that, retroactively, makes that behaviour an offence. Even the punishment for committing an offence cannot be raised retroactively.

Objective In article 20 of the constitution, India accepted the doctrine of Nullum crimen Sine Lege and Nullum Poena Sine Lege, which states that the essential premise of criminology is that the legislation prohibiting an act must come before the commission of the offence and the trial.

On the day of judgement, any ex post facto mercy made available by the legislature must be granted. With the help of this clause, the Criminal Jurisprudence is now on par with the norms of criminal justice around the world. The stipulations of the international covenant differ from those of the Indian constitution, which does not guarantee a shield against the milder sentence granted by later law.

Under the two international covenants, namely the significant covenant on civil and political rights and the international declaration of human rights, the right against ex-post-facto law has been acknowledged at the international level. In India, a legislature often has the power to pass both prospective and retroactive legislation, but the constitution forbids it from doing so with regard to crimes and the associated penalties.

Except for breaking a law that was in effect on the day the act was committed, people cannot be penalised for any other offence, according to clause 1 of article 20 of the constitution. The maximum penalty that may be imposed on a person is the one that was listed in the statute book on the day the misdemeanour or felony occurred.

Similar Provisions In Other Jurisdictions

  1. U.S. Constitution:
    Article I, section 9 of the U.S. Constitution forbids the federal government from enacting ex post facto laws, while clause 1 of section 10 forbids the states from doing the same. This is one of the few limitations on the federal and state governments' authority that the US Constitution imposed before modification. The United States Supreme Court has frequently used its decision in the Calder v. Bull case of 1798, in which Justice Chase outlined four categories of illegal ex post facto statutes, while making ex post facto decisions over the years. Due to the fact that it involved a Connecticut state law, the case involved Article I, section 10.
  2. Irish Constitution:
    Article 15.5.1� of the Republic of Ireland's constitution forbids the introduction of retroactive criminal sanctions. The Irish Supreme Court determined that a right to damages before the courts is a property right that is constitutionally protected, hence retroactive amendments to the civil law that would have eliminated that right have also been declared to be unconstitutional.
  3. Japan constitution:
    The retroactive application of laws is forbidden by Article 39 of the Japanese Constitution. According to Article 6 of the Japanese Criminal Code, the lesser penalty shall be applied if a new law is passed after the act was committed.
  4. UK constitution:
    Ex post facto laws are strongly discouraged in the United Kingdom; however, they are allowed under the parliamentary sovereignty doctrine. Since their date of effect was the first day of the session in which they were passed, all acts of Parliament passed before 1793 were ex post facto laws. The Acts of Parliament (Commencement) Act 1793 made this position right. Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory, forbids ex post facto criminal statutes, but legislative authority, in theory, still has precedence over this.
  5. Universal Declaration of Human Rights and related treaties:
    No one may be convicted of a crime under a law that did not exist at the time of the offence or face a punishment that is greater than it was at the time of the offence, according to Article 11 of the Universal Declaration of Human Rights. However, it does allow for the application of both local and foreign law.

Ex Post Facto Law In India


Essentials of Article 20(1) The following are the essentials of clause (1) of Article 20:
  1. Shall be convicted Only in cases where there is an ex-post facto conviction or sentence, and the trial is not forbidden will clause (1) of Art. 20 apply. Therefore, a trial conducted under a procedure different from what was in place at the time the crime was committed or by a court other than the one that had jurisdiction at that time cannot be automatically deemed to be unconstitutional.

    Except in cases when a constitutional objection based on discrimination or a violation of another fundamental right may be present, a person accused of committing an offence has no fundamental right to a trial by a particular court or by a particular method. Simply put, the limitation imposed by this provision does not apply to only procedural legislation, and a procedural law would not be in violation of Art. 20 (1) simply because it is granted retrospective effect.
  2. Offence Unless there is an "offence," none of Article 20's terms are applicable. According to section 3 (37) of the General Clauses Act, an offence is defined as any act or omission that is prohibited by law and is subject to a fine, incarceration, or death. But no question of "punishment" arises until there is a law that forbids doing or failing to do something. This section forbids the formation of a new offence with backward application. It does not forbid the formulation of a fresh standard of proof or the assumption of an ongoing "offence."
  3. Law in-force:
    This phrase refers to the law that was really in effect at the time the offence was committed and has nothing to do with a law that was "deemed to be in force" as a result of a later statute's retroactive application. In the case of State of Maharashtra v. K.K.S. Ramaswamy (1977), the accused, an Inspector at the Regional Transport Office in Kolhapur, was discovered to be in possession of money or other assets that were out of proportion to the sources of income for which he could account.

    However, until December 18, 1964, when clause (e) to section 5's sub-section (1) of the Prevention of Corruption act, 1937 was added, the possession of such property was not itself a crime. He was found guilty of the offences listed in Section 5(1) Clauses (a), (b), (d), and by the special judge (e) of the Act together with Indian Penal Code Sections 161 and 165.

    State's special permission to appeal against the High Court's ruling of acquittal on all courts was specifically restricted to the legality of section 5(1)(e) of the Act's acquittal of the offence. When upholding the High Court's judgement to acquit the respondent, the Supreme Court said because he couldn't be found guilty of a crime that didn't exist on the relevant day.

    However, it is argued that the outcome of the appeal might have been different if it had not been specifically limited to the offence under Section 5(1)(e) of the Act, given that Subsection (3) of Section 5 was still in effect on the relevant day despite being repealed by the same amending Act.
  4. Penalty Greater than that which Might have been Inflicted The clause includes a second prohibition, which is this one. Only those punishments that were outlined in the legislation that was in effect when the offence for which the punishment is sought was committed may be imposed upon a person. Any law passed after the crime was committed that imposes a different or greater punishment will not apply to him in relation to the specific offence in question. The expression "greater penalty" includes harsher penalty than that which could have been imposed had the law been not subjected to ex-post facto legislation.
  5. Penalty The term "penalty" refers to the punishment for the offence and excludes any other corrective measures that may be used to address the problem, such as summary eviction of a landlord who violated a rent control law, the civil obligation to pay an increased water rate in the event of unauthorised water use, or forfeiture of property to recoup embezzled funds.

    For the purposes of this article, however, the following are considered "penalties": forfeiture of property under Section 53 of the Indian Penal Code; an order by a court adjudicating an offence; a compensatory fine under Section 9(1) of the West Bengal Civil Law Amendment (Special Courts) Act; a liability for compensation under Section 25FFF of the Industrial Disputes Act; and, finally, the imposition of special rates under Section 31 of the Northern India canal drainage act, 1873.

In Indian constitution, no absolute right is given to its citizens therefore Art 20(1) subject to certain restrictions.
  1. Preventive Detention:
    Preventive detention involves locking up criminals in order to preserve peace and prevent additional criminal activity in society. Article 20(1) makes it clear that preventative detention is not covered by the article by using the words "convicted" and "offence." It places restrictions on offences that could result in conviction, penalty, etc. but not incarceration. Individuals accused of breaking the law are protected by the constitution under Article 20(1).
  2. Change in Procedure of the Law:
    The laws which are changing the procedure of the trial of an offence are allowed. Article 20(1) won't be applied in the situation.
  3. Civil Liability not Barred:
    Article 20(1) applies only to criminal offences and not to civil offences. So, the civil liability can be enforced retrospectively too.. A tax law process with a civil sanction and a revenue nature is not contemplated under Art. 20. A penalty under a tax law imposed by departmental authorities for breaking a law is excluded from the definition of "penalty" in clause 20(1) since it solely carries civil liability even though it is criminal in nature.

    A law was passed in June 1957 requiring employers who were terminating their employment agreements to provide compensation to their workers beginning on November 28, 1957, or face incarceration. Since such obligation was determined by the Supreme Court to be a civil liability imposed by the law and not an offence, article 20(1) could not be applied to the liability from 28th November 1956 to June 1957.
  4. Tada Act:
    The express provisions contained in article 20(1) is not a bar for restoring to the corresponding sub sections of the TADA act , 1987.

Rule Of Beneficial Construction

When there are two or more possible ways of interpreting any statute's section or word, the meaning which gives relief and protection to accused should be chosen. Rattan Lal v. State of Punjab (1965) is the case where the court established the advantageous construction rule, which states that an ex-post facto statute may only be implemented to lessen the punishment.

For instance, if A cheats on a board exam, the legislation that governs that crime stipulates a penalty of 6 months in jail, but a change in the law reduces that penalty to a fine of Rs. 2,000. As required by Article 20, A will therefore face a fine of Rs. 2,000 instead of a 6-month prison sentence (1). A person who has been charged with the act on which the new law's retroactive application is made is entitled to pursue any and all applicable legal remedies.

Ex post facto law refers to actions that were not unlawful at the time they were committed. According to Article 20 (1), such actions cannot be made unlawful later on by enacting new legislation with retroactive effect, nor can they be subject to punishments that are more severe than those specified in the law that was already in place at the time the action was committed.

Therefore, Article 20 (1) forbids the retrospective or retroactive law that violates an individual's fundamental rights by increasing the penalty or making any legal act illegal after the passage of a new law. This protects an individual's interests and rights by keeping in mind equity, justice, and good conscience.

The Supreme Court ruled in R.S. Joshi v. Ajit Mills Ltd. (1977) that Article 20(1) refers to the constitutional protection provided to people who are accused of a crime that is illegal before a criminal court. This immunity provided by the Constitution only applies to punishments governed by the Criminal Procedure Code for crimes that are covered by ex post facto laws. It cannot be used to defend against preventive detention or the requirement that any press organisation provide security under a press law for actions taken prior to the passage of the new law. No citizen is given a right to use any procedure that the court has designated as a fundamental right, according to Art. 20(1).

Therefore, as determined in the case of Union of India v. Sukumar, Article 20(1) is not violated if a legislation retroactively changes the location of the trial of an offence from any particular court, for example, a criminal court, to any tribunal like an administrative tribunal (1966). A rule of evidence that can be used in the trial of an earlier crime is not protected by Article 20(1) since it has nothing to do with the person's conviction and instead has to do with the trial and the method used by the court when the trial has already started.

The court explained in the case of Sujjan Singh v. State of Punjab (1964), that any statute cannot be stated as a retrospective law because a particular part of that statute is existing from a time preceding to the enactment of the new law and hence the court allowed the conviction of the person who claimed protection under Article 20(1) contending that a new enactment cannot make him liable to be punished, but the court clarified that the substance of the new law had been brought under the new statute which was present at the time of the omission of the act.

Similar success was achieved in the case of Chief Inspector of Mines v. Karam Chand Thapra (1961), in which the court stated that certain rules were established in the statute that was passed in 1923. In 1952, a new statute took the place of the Act of 1923, but many of the previous regulations were also codified in the new act. An offence committed in 1955 may still be punished under the new enactment because those laws and norms were already in effect on the date of the commission of the offence, therefore it did not constitute retrospective legislation.

In the international community, the right to protection against retroactive criminal law is widely acknowledged. However, there are numerous instances of retroactive criminal laws being implemented in societies that assert this right to be essential. We are fortunately shielded from ex post facto laws by the Indian constitution. We are all wonderfully blessed by Article 20(1).

The state cannot bring charges against an innocent person for a past act that is now illegal since doing so would go against the natural justice principle because the person could not have known, either logically or by some other means, that the act would become illegal in the future. Thus, criminal laws with retrospective effect are totally absurd, unfair and unjust.

Ex-post facto legislation were once thought to be one of the advantages afforded to legislators, but due to advancements, study, and analysis in the legal area, it is now harder for them to abuse or use it for their own convenience. The safeguarding of the concept from such potential abuse has been made possible in large part thanks to the contribution of the Indian Supreme Court. It is also true to argue that, at this point, it is not enough to believe that we are safe from such abuse; rather, it is prudent to consider the potential dangers that could result from recent developments in the legal sector.

  1. Ex Post Facto Law - Wikipedia (Ex post facto law - Wikipedia, January 1, 2021)
  2. Nishant Vimal, "Ex Post Facto Laws in India under Article 20(2) of the Indian Constitution" (iPleaders, May 22, 2019).
  3. Nikita Vaidya legal Service India, "Protection against Ex-Post Facto Laws" (Protection against Ex-Post Facto Laws)
  4. Medha Varshney, "Protection against Ex-Post Facto Law in India : Its Pros & Cons - iPleaders" (iPleaders, January 24, 2021) . 5. "EX POST FACTO LAW" (IILS Blog, May 8, 2017)
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