Introduction:
The world we live in today is ever-changing and ever-evolving. We have come a long way from the laws that were there at the time of the framing of the Constitution. The laws that are in place today might change according to the circumstances that might be there in the future. A person who commits an offence in the present is aware of the legal consequences of his act with regard to the laws that are in place at the present. A person who commits an act cannot be made to undergo punishment for something which was not an offence at the time of committing it. Here, the ex-post facto laws come into the picture. The ex-post facto laws are the ones which have a retrospective operation and it changes the legal consequences of an act which was done in the past, prior to the enactment of a law. The ex post facto has been derived from the Latin, meaning having effect of something which happens later on.
The effect of such an act is such that it might result in the enhancement of the punishment for a certain offence and might take away a right which was earlier granted. It might also result in providing someone with an aggravated form of a certain punishment than the punishment which was prescribed at the time the person committed the offence. With regard to the evidence law, such changes may be introduced where the likelihood for the punishment may increase at the hands of the prosecutor. Thus, it acts not in favour but against the person in many cases.
It might in some cases also be of benefit, where the punishment is lowered for a certain offence (for example, the death penalty is reduced to life imprisonment) and in some cases, a certain crime may even be decriminalized (decriminalization of homosexuality under Section 377 of IPC), these laws are known as amnesty laws. The application of the ex post facto laws also takes place in those cases where they may not be ex post facto themselves, like the repealed legislation, which was earlier in the application, are not applied after they are repealed. The principle behind the prohibition of such type of non-application is Nullum crimen, nulla poena sine praevia lege poenali.
International Provisions with Regard to Ex-Post Facto Laws
In the United States, Article 1, Section 9 of the US Constitution prohibits the government at the federal level to pass ex post facto laws. The states of the United States of America are prohibited from passing such laws under clause 1 of section 10. The Calder v. Bull is the most important authority with regard to the ex post facto laws, passed by the Supreme Court of the US in 1798 and four types of unconstitutional laws were listed through this case[1].
In Ireland, the constitution itself prohibits the retrospective application of the punishments. The constitution of Ireland also prohibits the application of the retroactive effect on the civil laws as well and the Supreme Court of Ireland also recognizes this and has laid down that retrospective application of the civil law are violative of the Constitution and the rights granted by it, as it causes loss to the right to seek damages in cases related to property issues.
Similar to US and Ireland, the Japanese Constitution also prohibits the retrospective application of the laws and there are express provisions under the Criminal Code where it is stated that in case a new law is framed after the offence has been committed then the person must be provided with a moderate punishment is to be awarded.
The United Kingdom is a signatory to the European Convention on Human Rights and Article 7 of this very convention prohibits ex post facto application of criminal laws. Even otherwise the ex post facto laws are looked down upon by the Courts in the UK but the parliamentary sovereignty is given precedence in a practical sense.
The Universal Declaration of Human Rights expressly provides in its Article 11, paragraph 2 that no one is to be held guilty under any law which was not in place at the time when the offence was committed and nor the person be made to suffer an enhanced punishment than the one earlier provided.
Just like the UDHR, the International Covenant on Civil and Political Rights it prohibits the application of enhanced punishment for an offence which was committed before the framing of that penal provision. The Covenant also lays down that in case a lighter punishment is provided for an offence later on then the lighter punishment must be applied.
Indian Position with Regard to Protection Against Ex Post Facto Laws
The Indian Constitution has provided certain basic rights under Part III of the Constitution and these cannot be done away with under any situation except by the procedure established by law. In this regard, Article 20(1) is of utmost importance as it provides with a safeguard against the ex post facto laws[2]. For the ease of understanding, we divide Article 20(1) into two parts. The first part provides that a person is not to be convicted for an offence which was not an offence at the time when the offence was committed. A person cannot be made liable for committing an offence which was not an offence at the time of occurrence of that act.
The other part of Article 20(1) prohibits the application of the enhanced punishment than the one which was there at the place when the offence was committed by the offender. One important thing to note is that the changes with regard to trial are not prohibited with regard to ex post facto laws under Article 20(1) of the constitution. Until and unless it’s a matter of basic violation of some fundamental rights, a person cannot demand that he may not be tried under the procedure or court which was not prescribed at the time, the offence was committed.
The Supreme Court in the case of K. Satwant Singh vs. The State of Punjab[3] has discussed in detail the scope of Article 20(1) in a constitutional bench. The Supreme Court, in this case, has held that Article 20(1) was not infringed where the there under S. 420 of IPC no minimum fine was given and when a later ordinance passed in 1943 laid down the minimum punishment, it was held that the minimum penalty prescribed must not be greater than what could be imposed at the time when the offence was committed. It is important to note that a greater penalty must not be applied than the one in place, at the time when the offence was committed.
In another case, a person who was a public servant embezzled the government’s money and he was suspended according to the law in force at the time. Then, later on, an ordinance was passed that provided for a method to retrieve the money which was embezzled by the person from the property of the person, by forfeiting it. It was held that the ordinance was a valid one as there was no imposition by the new law but rather just a procedure was provided for the recovery of money belonging to the government. Thus, it was held that Article 20(1) was not violated.
The Rule of Beneficial Construction lays down that the person may only be convicted for an ex post facto law if the latter law is beneficial to the person. It was laid down in the case of Rattan Lal vs. State of Punjab[4] that the person is to get all the remedies under the new law, the retrospective effect of which has been applied on the act done by him.
The protection provided by way of Article 20(1) is of utmost importance at providing protection against the application of the retrospective effect of the ex post facto laws. Under the ex post facto laws, those provisions are made to take effect which was not even there at the time when the offence was committed. Thus, Article 20(1) provides the bedrock for the protection against the ex post facto laws.
Role of the Supreme Court in Providing Protection
The Supreme Court of India has been the major protector and benefactor against the application of the retrospective effect of the ex-post facto laws. The Indian judiciary as a whole has provided protection at various times wherever there was a need to protect the rights and freedoms of the individuals and has dealt with some difficult questions when it comes to the ex post facto laws.
The honourable Supreme Court in the case of R.S. Joshi vs. Ajit Mills Ltd.[5], has held that the Article 20(1) provides immunity to the individuals in the criminal cases that are covered under the criminal law and is tried under the code of criminal procedure as far as the ex post facto laws are concerned. Such type of immunity cannot be sought in cases related to preventive detention or press laws where a person has done an act before the law came into force.
In the case of Jawala Ram vs. Pepsu[6], the honourable Supreme Court has held that the Article 20(1) would not be applied where the retrospective effect is to be given to the imposition of special rates for use of canal water in an unofficial manner and the retrospective effect can be given. If an offence is in the nature of a continuous offence like where the violation of a taxing statute takes place then the immunity under Article 20(1) is not applicable and retrospective effect can be given to provisions of an enactment dealing with increased punishments.
In the case of Sujjan Singh vs. State of Punjab[7], the Supreme Court of India allowed the conviction of a person on the ground that the matter of the new law which is covered in the new statute was in place the offence was committed. Hence, the Court declined the protection which the person was seeking under the Article 20(1) and it was held that any particular enactment which is passed cannot be said to be giving retrospective effect because some part of the law was in existence before the new enactment came into place.
In the cases where the new enactment repeals the earlier statute and prescribes a different punishment for the offence earlier provided under the statute then this would be immunized from the effect of the retroactive action by the help of Article 20(1) and thus provides protection against the ex post facto laws. In case the new statute thereby created or repealed contains an offence fundamentally different from the one already committed in its essential ingredients then a person cannot be subjected to the revised penal consequences of such an ex post facto law.[8]
If the situation with regard to the application of protections from the ex post facto laws is concerned the Article 20(1) provides a much wider scope than the protection which the American Constitution provides against such laws. Article 20(1) provides protection in a form that a person may be saved from the effect of ex post facto laws and saves him from the application of the retroactive effect of an enactment. This article has been widely interpreted by the Supreme Court of India and thus the effect of the application of the ex post facto laws has been mitigated to a great extent.
Conclusion
The ex post facto laws provide a retrospective effect to the newly enforced enactments and if there is not a proper mechanism of protection against such application then the citizens of a country might have to suffer at the behest of this lacuna. The Constitution of India provides the most important safeguard against the effect of ex post facto laws and the Indian judiciary and especially the Apex Court has played a very active role in protecting the fundamental right which is enshrined in the constitution and is a recognized basic human right at the level of the UN as well.
References:
[1]http://www.commonlii.org/in/journals/INJlConLaw/2007/6.pdf
[2] https://www.iilsindia.com/blogs/ex-post-facto-law/
[3] AIR 1960 SC 266
[4] AIR 1964 SC 444
[5] AIR 1977 SC 2279
[6] AIR 1962 SC 1246
[7] AIR 1964 SC 464
[8] T. Barai v. Henry Ah Hoe
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