EX-POST FACTO LAWS

Title – Ex-Post Fecto Laws

INTRODUCTION
Ex- post facto laws are often referred to as a violation of the rule of law as it applies in a free
and democratic society. Most common law jurisdiction do not permit retrospective
legislation, though some have suggested that judge-made law is retrospective as a new
precedent applies to events that occurred prior to the judicial decision. In some nations that
follow the Westminster system of government, such as the United Kingdom, ex post facto
laws are technically possible as the doctrine of parliamentary supremacy allows parliament to
pass any law it wishes. However, in a nation with an entrenched bill of rights or a written
constitution, ex post facto legislation may be prohibited. For example, when a law repeals a
previous law, the repealed legislation no longer applies to the situations it once did, even if
such situations arose before the law was repealed. The principle of prohibiting the continued
application of these kinds of laws is also known as Nullum crimen, nulla poena sine praevia
lege poenali.

Article 20 of Indian constitution provides for certain rights to protect in respect of conviction
of offences. These rights are as follows:

(1) No person shall be convicted of any offence except for violation of 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 under the
law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against
himself.

The first one in a broad sense is known as ex-post facto laws; they are the laws which punish
for what was lawful when done. That is, an act that was lawful when done cannot be declared
or made an offence by a law made after the commission of the act. The law can make such
acts offence only for the future.

The right secured under clause (2) is grounded on the common law maxim “nemo debet bis
vexari”, which means that ‘a man should not be brought into danger for one and the same
offence more than once. If a person is charged again for the same offence in an English court,

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he can plead, as a complete defence, his former acquittal or as it is technically expressed, take
the plea of autrefois acquit or autrefois convict.

Clause (3) embodies the principle of protection against compulsion of self – incrimination
which is one of the fundamental canons of the British system of criminal jurisprudence and
which has been adopted by the U.S. Constitution. The fifth amendment of the U.S.
Constitution provides that no person shall be compelled to be a witness against himself. It has
also, to a substantial extent, been recognised in the criminal administration of justice in this
country by incorporation into various statutory provisions.

Thus, the prohibition imposed by article 20 are directly relevant to the criminal process, while
clause (1) is concerned with the substantive law of criminal liability and penalty, clause (2)
and clause (3) are concerned mainly with the stage of procedure. This is the scope of this
article.

WHAT ARE EX-POST FACTO LAWS?

The right secured by clause (1) corresponds to the provisions against ex-post facto laws of the
American Constitution which declares that no ex- post laws shall be passed. Jagannathdas , a
judge, said, “there can be no doubt as to the paramount importance of the principle that such
ex- post facto laws which retrospectively create offences and punish them are bad as being
highly inequitable and unjust.”1 Clause (1) lays down that no person shall be convicted of any
offence except for violation of law in force at the time of the commission of offence. This
means that a person can only be convicted of an offence which at the time of commission is
an offence, he can’t be prosecuted for an offence, which when he committed was not
penalised or prohibited. Thus, in other words, if act is not an offence at the date of
commission, no future law can make it an offence 2. In case of “Rao Shiv Bahadur Singh v
State of V.P”.3, the accused had been tried for certain offences alleged to have been
committed in February, March and April 1949, under provisions of the V.P.Ordinance No 48
of 1949, which was enacted on September 11, 1949. However it was provided in section 2 of
the ordinance that it should be deemed to have been in force in Vindhya Pradesh from August
9, 1948. Court held that section (2) violated article 20 (1). The phrase law in force must be
1
Rao Shiv Bahadur Singh v. State Of V.P, AIR 1953 SC 394,398
2
Chief Inspector Of Mines v. K.C.Thapar, AIR 1961 SC 838
3
AIR 1953 SC 394

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understood in its natural sense as being the law in existence and in operation at the time of the
commission of offence as distinct from the law deemed to have become operative by virtue of
the power of the legislature to pass retrospective laws. Thus, the Provisions of ex-post-facto
laws were considered as one of the privilege available to individuals. It is only retrospective
criminal legislation that is prohibited and not the civil liability i.e. this right prohibits criminal
liabilities and does not prohibit any civil liabilities 4. Thus, this article gets attracted only to
criminal liabilities and not to civil liabilities.

In case of “Hathising Manufacturing Co. v. Union of India” 5, an act passed in June 1957,
imposed on the employers, the liability to pay compensation to their employees since
November 28, 1956. If any person fails to discharge his liability then he will be imprisoned
under the statute. The issue was whether the act violates article 20 (1). Court held that since
the liability is civil in nature, hence article 20 (1) will not be attracted in this case. Same way
a penalty under tax law imposed retrospectively does not violate article 20 (1) because the
penalty is only a civil liability to be enforced by tax authorities6.

INDIAN CONSTITUTION AND THE POSITION OF EX-POST FACTO

LAWS

Article 20(1) of the Indian constitution provides necessary protection against ex post facto
law. Art. 20(1) has two parts. Under the first part, no person is to be convicted of an offence
except for violating ‘a law in force’ at the time of the commission of the act charged as an
offence. A person is to be convicted for violating a law in force when the act charged is
committed. A law enacted later, making an act done earlier as an offence, will not make the
person liable for being convicted under it. The second part of Article 20(1) immunizes a
person from a penalty greater than what he might have incurred at the time of his committing
the offence. Thus, a person cannot be made to suffer more by an ex-post-facto law than what
he would be subjected to at the time he committed the offence. What is prohibited under
Article 20(1) is only conviction or sentence, but not trial, under an ex-post-facto law. The
objection does not apply to a change of procedure of court. A trial under a procedure different
from what obtained at the time of the commission of the offence or by a court different from

4
Hathising Mfg.co.ltd. v Union Of India, AIR 1960 SC 923
5
AIR 1960 SC 923
6
Shiv Dutt Rai Fateh Chand v. Union of India, AIR 1984 SC 1194

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that which had competence then time cannot ipso facto be held unconstitutional. A person
being accused of having committed an offence has no fundamental right of being tried by a
particular court or procedure, except in so far as any constitutional objection by way of
discrimination or violation of any other fundamental right may be involved

SCOPE OF ARTICLE 20(1)

The scope of Article 20(1) has been fully considered by a constitutional bench of the
Supreme Court in “Satwat Singh v. State of Punjab”7 according to section 420 of IPC, no
minimum sentence of fine has been provided and under it an unlimited fine can be imposed.
Later, in 1943, an ordinance laid down the minimum fine which a court must compulsorily
inflict on a person convicted under Section 420. The Supreme Court held that Article 20(1)
was not infringed by the trial under the ordinance because the minimum penalty prescribed
by it could not be said to be greater than what could be inflicted on section, under the law in
force at the time he committed the offence. Under Article 20, all that has to be considered is
whether the ex-post-facto law imposes a penalty greater than that which might be inflicted
under the law in force at the time of commission of the offence. The total sentence of fine –
‘ordinary’ and ‘compulsory’ – in the present case could not be said to be greater than what
might have been inflicted under Sec. 420, the law in force at the time of the commission of
the offence, because the fine which could have been imposed upon under Sec. 420, IPC, was
unlimited. A law providing for a minimum sentence of fine on conviction does not impose a
greater penalty than what might have been inflicted under the law at the time of the
commission of the offence when such a law authorized imposition of an unlimited fine for the
same offence.

A government servant embezzled government money before August 1944, when he was
suspended. An ordinance, dated August 23, 1944, provided that from the property of a person
convicted for embezzlement, the amount embezzled by him was to be forfeited. The
ordinance was held valid as it did not impose a penalty within Art. 20(1), but merely laid
down method of recovering money belonging to the government which had been embezzled.
The government could have filed a suit to recover the money but the provision in question
provided for a speedier remedy to recover the same. Imposing or increasing a penalty with
retrospective effect of violation of a taxing statute does not infringe Article 20(1). The reason
for this proposition has been explained by the Supreme Court in “Shiv Dutt Rai Fateh
7
AIR 1960 SC 266

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Chand v.Union of India”8. Article 20 contemplates proceedings in the nature of criminal

proceedings and it does not apply to proceedings under a sales tax law which has a civil
sanction and is of a revenue nature. The word ‘penalty’ in Art 20(1) does not include a
‘penalty’ under a tax law levied by departmental authorities for violation of statutory
provisions. A penalty imposed by such an authority “is only a civil liability, though penal in
character.” Art. 20(1) applies when a punishment is imposed for offences through criminal
prosecution (even under tax laws). An ex-post-facto law which only mollifies the rigors of a
criminal law is not within the prohibition of Article 20(1). Therefore, an accused should have
the benefit of a retrospective or illustrated by “Rattan Lal v. State of Punjab”9. In this case
Supreme Court observed that and ex-post-facto law which only mollifies the rigor of criminal
law does not fall within the said prohibition [i.e. of Art. 20(1)]. If a particular makes a
provision to that effect, though retrospective in operation, it will be valid.

Article 20(1) prohibits all convictions or subjections to criminal penalties after the
constitution, in respect of an ex-post facto law whether such a law was a post constitution or
pre constitution law.10However, where an act is repealed, and the repealing act is then
repealed by another, the repeal of the second act revived the first ab initio, and, therefore,
there can be no objection in law to the revival of the procedure which was in force at the time
when the offence was committed.11 The second part of article 20(1) guarantees that no person
shall be subjected to a penalty greater than that which could be inflicted under the law in
force at the time of the commission of the offence. In “Kedar Nath Bajoria v State of
W.B”.12, the accused committed an offence in 1947 under an act which prescribed a
punishment of imprisonment or fine or both. The act was later amended and the punishment
prescribed was enhanced by a further fine to be equivalent to the amount of money found to
have been procured by the offender through his offence. It was held that the enhanced
punishment prescribed by the amendment could not be applicable to the offence committed in
1947, because of the prohibition contained in the latter part of Article 20(1). The second part
of Article 20(1) applies only to retrospective increase of a penalty for an offence and not to
retrospective increase of civil liability. Thus, a retrospective increase of a charge for
unauthorized use of canal water does not fall within the prohibition because it does not
increase the penalty or punishment for an offence. Unauthorized use of water was not an
8
AIR 1984 SC 1194
9
AIR 1965 SC 444
10
Rao ShivBahadur Singh v. State of V.P.,AIR 1953 SC 394,398
11
G.P.Nayyar v. State(Delhi admn.),AIR 1971 AP 234.
12
AIR 1953 SC 404

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offence under the law. To attract the provision of clause of (2), it is necessary that the first
trial should have been before a court competent to hear and determine the case and to record
a verdict of conviction or acquittal. If the court is not competent, the whole trial is null and
void and it cannot be said that there has been prosecution and punishment for the same
offence.13Article 20(2) does not apply to continuing offence14.

INTERPRETATION OF EX-POST FACTO LAW ?

Supreme Court of India has played an important role in exploring as well in interpreting the
doctrine of ex-post-facto law. There are several cases in which apex court has dealt with the
questions regarding operation of such laws.

In “R.S.Joshi v. Ajit Mills Ltd”.15 Supreme Court said that Art. 20 relates to the constitutional
protection given to persons who are charged with a crime before a criminal court. The word
‘penalty’ in Art. 20(1) is used in the narrow sense as meaning a payment “which has to be
made or a deprivation of liberty which has to be suffered as a consequence of finding that the
person accused of a crime is guilty of the charge. The immunity extends only against
punishment by courts of a criminal offence under as ex-post-facto law, and cannot be claimed
against preventive detention, or demanding a security from a press under a press law, for acts
done before the relevant law is passed. Similarly, a tax can be imposed retrospectively 16.
Imposing retrospectively special rates for unauthorized use of canal water is not hit by Art.
20(1)17. A law which retrospectively changes the trial of an offence from a criminal court to
an administrative tribunal is not hit by Art. 20(1). 18 A change in court entitled to try an
offence is not hit by Art. 20(1)19.Similarly, a rule of evidence can be applied to cases of an
offence, for trial, that were committed earlier. In order to punish corrupt government officers,
parliament has enacted the preventive of Corruption Act which creates the offence of
criminal misconduct. Section 5(3) crates a presumption to the effect that if the government
servant for corruption has in his possession property or assets which were wholly

13
Brij Nath Prasad Tripathi v State of Bhopal, AIR 1967 SC 494
14
Saharanpur Municipality v. K.Ram , AIR 1965 ALL 160.
15
AIR 1977 SC 2279
16
Sunderaramier & co. v State of Andhra Pradesh, AIR 1958 SC 468
17
Jawala Ram v Pepsu, AIR 1962 SC 1246
18
Union of India v Sukumar , AIR 1966 SC 1206
19
Shiv Bahadur v Vindhya Prdaesh, AIR 1953 SC 394

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disproportionate to his known sources of income and if he cannot explain the same
satisfactorily, then he is guilty of criminal misconduct.

S. 5(3) was challenged before Supreme Court in “Sajjan Singh v. State of Punjab” 20. It was
argued that when S. 5(3) speaks of the accused being in possession of pecuniary resources, or
property disproportionate to his known sources of income, only the pecuniary resources or
property acquired after the date of the act is meant. To think otherwise would be to give the
Act retrospective operation and for this there is no justification. The Supreme Court rejected
the contention that to take into consideration the pecuniary resources or property in the
possession of the accused, or any other person on his behalf, which are acquired before the
date of the Act is in any way giving the Act a retrospective operation. The court explained the
position as follows: “the statute cannot be said to be retrospective because a part of the
requisites for its actions is drawn from a time antecedent to its passing”. The court also
rejected the contention that S. 5(3) crates a new offence in t he discharge of official duty.
According to the court S. 5(3) does not create a new offence. The court stated further: “it
merely prescribes a rule of evidence for the purpose of proving the offence of criminal
misconduct as defined in S. 5(1) for which an accused person is already under trial. When
there is such a trial which necessarily must be in respect of acts committed after the
prevention of corruption Act came into force, S.5 (3) places in the hands of the prosecution a
news mode of proving an offence with which an accused has already been charged. A person
can be convicted and punished under a ‘law in force’ which means a law ‘factually’ in
existence at the time the offence was committed. A law not factually in existence at the time,
enacted subsequently, but by a legislative declaration ‘deemed’ to have become operative
from an earlier date , cannot be considered to be a law ‘factually’ in force earlier than the date
of its enactment and the infirmity applying to an ex-post-facto law applies to it, the reason is
that if such a fiction were accepted, and a law passed later were to be treated as a law in
existence earlier, then the whole purpose of the protection against an ex-post-facto law would
be frustrated, for a legislature could then give a retrospective operation to any law. A law was
made in 1923, and certain rules were made there under. The Act of 1923 was replaced in
1952 by another Act, but the old rules were deemed to be the rules under the new Act as well.
As these rules had been operative all along and did not constitute retrospective legislation, an
offence committed in 1955 could be punishable under them as these were factually in

20
AIR 1964 SC 464

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existence at the date of the commission of the offence 21. The later Act will have no
application if the offence described therein is not same as in the earlier Act, i.e., if the
essential ingredients of the two offences are different. If the later Act creates new offences, or
enhances punishment for the same offence, no person can be convicted under such an ex-
post-facto law nor can the enhanced punishment prescribed in the later Act apply to a person
who had committed the offence before the enactment of the later law 22. Further, what Art.20
(1) prohibits is conviction and sentence under an ex-post-facto law for acts done prior thereto,
but not the enactment or validity of such a law. There is, thus, a difference between the Indian
and the American positions on this point, whereas in America, an ex-post-facto law is in itself
invalid, it is not so in India. The courts may also interpret a law in such a manner that any
objection against it of retrospective operation may be removed.23

When Art.20 (1) does not apply

No prohibition for change in procedural laws – A person does not have the
fundamental right to be tried by a particular procedure. Art. 20 (1) does not prohibit the ‘trial’
of offences under the ex-post facto laws. This is unlike the American law, where a trial under
the ex-post facto law is barred.

A law which retrospectively changes the venue of a trail or an amended law which provides
for setting up of a Special Tribunal to try summarily the offences under the Act in question
have been upheld by the court as not violating the Art. 20 (1) (“Transmission Corpn., A.P. v
Ch. Prabhakar”24).

Benefit of reduction in punishment – Art. 20 (1) does not bar the accused from
taking benefit of the reduction in punishment (i.e. modifications of the rigour of a criminal
law) the rule of beneficial construction required that an ex-post facto law could be applied to
reduce the punishment. If any subsequent legislation tones down punishment for an offence,
legislative benevolence can be extended to the accused who awaits judicial verdict regarding
sentence [ “Narcotic Control Bureau v. Parash Singh”25]

21
Chief Inspector of Mines v. Karam Chand Thapra,AIR 1961 SC 838
22
T.Baraj v Henry Ah Hoe, AIR 1983 SC 150
23
Sardar Gyan Singh v State of Bihar, AIR 1975 Pat.69
24
AIR 2004 SC 3368.
25
(2008) 13 SCC 499.

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Where a boy of 16 year of age was undergoing rigorous imprisonment for six months for
house trespass and outraging the modesty of a girl and meanwhile the Probation of Offenders
Act, 1958 was passed which provided that a person below the age of 21 years should not
ordinarily be sentenced to imprisonment it was held that the ex-post facto law which was
beneficial to the accused did not fail within the Prohibition of Offenders Act. 20 (1) (“Rattan
Lal v State of Punjab”26). It may be noted that the Prohibition of Offenders Act was not a
penal statue it was a social welfare legislation aiming to reform the offenders. It is the penal
laws which have a prospective operation. In that case the accused boy could not have the
benefit of the legislation

No application to civil laws – There is no limitation on retrospective operation of civil

laws including tax laws or disciplinary proceedings. The Government could lay down, under
an ex-post facto law, any manner for the recovery of its dues Art. 20 (1) also does not apply
to a law punishing continuing offence or a case of preventive detention.

Non-fulfillment of civil liability may entail penal damages or imprisonment. But that does not
make out a case under Art.20 (1). Thus where the non-payment compensation by the
employers closing their undertaking was made punishable (via imprisonment) retrospectively
by the Act, the Apex Court upholding the constitutionality of the impugned Act held that the
liability imposed was civil liability and since the failure to discharge a civil liability was not
an offence, Art. 20 would have no application (“Harhisingh Mfg. Co. v. UOI”27). Similarly
imposition of penal damages for unauthorized possession of village common land had been
held to be a civil liability.

CONCLUSION

26
AIR 1965 SC 444,
27
AIR 1960 SC 923,

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The Provisions of ex-post-facto laws were considered as one of the privilege available to
individuals. No one shall be convicted of any act or omission that did not constitute a
criminal offence under the applicable law, at the time when it was committed. A heavier
penalty shall not be imposed than the one that was applicable at the time the criminal offence
was committed. If subsequent to the commission of the offence the law provides for the
imposition of a lighter punishment, the guilty person shall benefit therefrom. It is only
retrospective criminal legislation that is prohibited and not the imposition of civil liability, i.e.
if the statute fixes criminal liability for contravention of a prohibition or command which is
made applicable to transactions which took place before the date of its enactment, the
provisions of Art. 20(1) are attracted. But they are not attracted if the statute fixes only civil
liability. Due to these developments in the field of law and with more research and analysis,
now it is not that much easy for law makers and individuals to abuse or use it according to
their own convenience. Our apex court has played a very vital role in ensuring the protection
against such abusive use of this principle. Now, though we are secure from misuse of this
right, but at this time, it is the prudent to ponder over the probable threats which may arise
with new advancements in the gigantic field of law.

BIBLIOGRAPHY

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Books Referreed :

1. D.D. Basu, “Commentary on The Constitution of India”, Volume 3, 8th Edition, 2008,
LexisNexis Butterworths Wadhwa, Nagpur
2. Mahendra Pal Singh, “V. N. Shukla’s Constitution of India”, 12th Edition, 2013,
Eastern Book Company, Lucknow
3. M.P.Jain, Constitution of India

Websites Cited:

1. www.maupatra.com
2. www.lexisnexis.com

Submitted By- Dharmesh Singh Chauhan (Roll No- 268)

Gouransh Bhurrak (Roll No- 271)

2nd Semester

Section A

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