EX-POST FACTO LAWS

A law which imposes penalties retroactively, i.e., upon acts already done, or which increases the
penalty for the past acts is called an ‘ex-post-facto law’, but literally the term ex-post-facto
means “arising from past facts”. Such laws are regarded as inequitable and abhorrent to the
notions of justice and, therefore, there are Constitutional safeguards against such laws.

The best known historical cases of the ex-post-facto laws can be found in the bills of attainder in
the United Kingdom from the 16th Century and in the United States in till the end of 18th
Century. After independence, the United States Constitution proscribed legislative bills of
attainder in federal law under Article I, Section 9, and in state law under Article I, Section 10.
The fact that they were banned even under state law reflects the importance that the framers
attached to this issue.

The makers of the Constitution of India, comprehending the above significance, borrowed the
principle from the US Constitution and prohibited ex-post-facto laws by including a protection
against it, in the form of a fundamental right, in Clause (1) of Article 20 of the Constitution.

Theoretical objections to ex post facto laws

Basically, there are four jurisprudential reasons objecting ex-post-facto laws according to the
Constitutional Theory of Law: -

1. Ex-post-facto law is not law

The idea of retrospective illegality makes any sense only if its legality is understood as a
provisional condition dependent on the future will of a legislative authority. But in this case, the
law’s primary function of providing guidance to conduct is severely weakened. Individuals who
cannot predict the legal consequences of their actions cannot coordinate their behavior in relation
to each other. Therefore, substantial restraint on the imposition of harm for past innocent acts is a
necessary condition of civilized social life.

It is quite clear that law conjures a general rule and not a person specific or condemning a single
past transaction. Blackstone has mentioned that “an act to confiscate the goods of Titius or to
attaint him of high treason does not enter into the idea of a municipal law: for the operation of
this act is spent upon Titius only and has no relation to the community in general: it is rather a
sentence than a law”1. This rationale has received wide judicial recognition, the locus classicus
being the US Supreme Court’s Opinion in Hurtado v. California.2

2. Nullum crimen, nulla poena sine lege

The maxim that there is no crime without a breach of the law is first a proposition of logic. If a
crime is understood to be an act that is prohibited by law at the pain of a penalty, an act which is
not so prohibited can never be a crime. The fact that Parliament visits the act with its retribution
cannot make it a crime. The act is simply an event with reference to which Parliament elects to
inflict pain on a person or group. However, the maxim nullum crimen sine lege is more than a
proposition of logic. It is a substantive moral claim to humane treatment.

The principle nulla poena sine lege which condemns the retrospective increase in penalties is
again a substantive claim of justice. It can also be seen as a logical extension of nullum crimen
sine lege. A retrospective increase in punishment is an infliction of new pain not prescribed by
law. It is not punishment of the offence as the punishment has already been suffered or is being
suffered.

3. Failure of due process

This objection relates to bills of attainder and of pains and penalties. Whereas Blackstone denied
these instruments the status of law, John Lilburne saw in them the vice of the legislative
imposition of punishment without trial. “To say that a freeman of England by Law may be tried
by a Bill of Attainder, is irrational and unjust; for such a proceeding is no tryal, but rather a
sentence, and is no act of jurisdiction, but an act of the legislative power, but no sentence can be
past against an offender, but by some foredeclared visible, known rule of law; of which the
supposed offender, either actually had, or might have had knowledge”.3 This objection was
articulated by the US Supreme Court in Selective Service System v Minnesota Public Interest
Research Group when it stated that a bill of attainder is “a law that legislatively determines guilt

1
Sir William Blackstone, 1 Commentaries on the Laws of England (London: T. Cadell & W. Davies, 14th ed, 1803)
44-45.
2
110 U.S. 516, 535-536 (1884).
3
Quoted from W.B. Gwyn, The Meaning of the Separation of Powers (1965: New Orleans: Tulane University Press,
1965) 39.
and inflicts punishment upon an identified individual without provision of the protections of a
judicial trial”.4

4. Ex-post-facto law offends the separation of powers doctrine

This objection is based on the claim that the enactment of certain forms of ex post facto law
involves the exercise of judicial power. In countries where legislative and judicial powers are
constitutionally reposed in separate organs, the legislative infliction of punishment or detriment
on specified persons is unconstitutional as a matter of positive law. In England, where the Crown
in Parliament had undivided power, the practice of enacting bills of attainder and of pains and
penalties was abandoned as a matter of constitutional principle. The Supreme Court of the US, in
United States v. Brown5, has treated the ban of retrospective laws as a part of the Constitution’s
implementation of the doctrine concerning the separation of powers.

Article 20 Clause (1)

“No person shall be convicted of any offence except for violation of a 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”

The first part of it means that a law enacted later, making an act done earlier (not an offence
when done) as an offence, will not make the person liable for being convicted under it.6 And,
the second part of the provision prohibits from increasing the punishment given by a
retrospective legislation. This in turn can be stated that the citizens of India are protected from
ex-post-facto laws. An immunity is thus provided to person from being tried for an act, under a
law enacted subsequently.7

Prohibited Class of Laws

4
468 US 841, 846-47 (1984) quoting Nixon v. Administrator of General Services 433 US 425, 468 (1977).
5
United States v Brown 381 US 437, 488 (1965)
6
Kanaiyalal v. Indumati, AIR 1958 SC 444
7
State of Maharashtra v. KK Subramaniam Ramaswamy, AIR 1977 SC 2091
The above immunity is only applicable against punishment by courts for a criminal offence
under any ex-post-facto laws and basically, cannot be claimed against civil liabilities. The word
‘offence’ is not defined in the Constitution. But S. 3(38) of the General Clauses Act defines
‘offence’ as any act or omission made punishable by any law for the time being in force.

Therefore, Article 20 relates to the Constitutional protection given to persons who are charged
with a crime before a criminal court. The word ‘penalty’ in it, is used in the narrow sense as
meaning a payment “which has to be made or a deprivation of liberty which has to be sffered as
a consequence of finding that the person accused of a crime is guilty of the charge”8.

“Law in force”
The phrase “law in force” must be the law which was factually in operation on the date of the
commission of the offence and not the law which by legal fiction is made operative by virtue of
the power of the legislature to pass retrospective laws. This principle was observed in the case of
Rao Shiva Bahadur Singh v. State of Vindhya Pradesh9. In the case, a person had been alleged of
committing an offence and was tried under an ordinance promulgated by the state of Vindhya
Pradesh on 11 Sept, 1949. which was, however, deemed to have come into force from 9th Aug,
1949. In other words, it was a retrospective criminal legislation and had the effect of making an
offence out of an act which was not an offence at the time it was committed.

Landmark Cases of Strict Adherence

Soni Devrajbhai Babubhai v. State of Gujrat10
Section 304B IPC, was enacted on 19-11-1986 making a dowry death punishable as an offence
under the Penal Code. A new offence has thus been inserted in the IPC with effect from 19-11-
1986. In the present case, a death with the characteristics of a dowry death occurred in 1984. The
SC held that due the Art. 20(1), S.304B cannot be applied to a dowry death which took place in
1984, i.e. prior to its enactment. S.304B is a substantive provision creating a new offence

8
RS Joshi v. Ajit Millls Ltd., AIR 1977 SC 2279
9
AIR 1955 SC 446
10
(1991) 4 SCC 298
subsequent to the commission of the offence attributed to the respondent in the instant case and
so he could not be tried u/s. 304B.

Sakshi v. Union of India11

In this case, the SC refused to give an enlarged meaning to the word “rape” in section 375 IPC
on the ground that such an interpretation may violate Art. 20(1). The petitioners wanted to
enlarge ‘rape’ from mere sexual intercourse consisting of penile/vaginal penetration to
penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and
object/vaginal penetration. But this position has, however, been changed by the Criminal
Amendment Act of 2013 which brings all these acts in the category of rape.

Rule of Beneficial Construction

It is and advantageous rule of interpretation for the members of the society which preserves them
from any kind of hardships being created through the law on the subject-matter they are fighting
for. In the present scenario, it means that Art. 20(1) does not prohibit reduction of penalty
retrospectively12.

In the case of Rattan Lal v. State of Punjab13, the accused, a boy of 16 years, was held guilty for
certain offences and was awarded rigorous imprisonment for six months with fine by the
magistrate. Later came the Probation of Offenders Act of 1958, which was a reformative
measure in the field of penology and provided that a person below 21 years of age should not
ordinarily be imprisoned. The question, whether an appellate court could apply the Act in respect
of an accused who was already convicted by the trial court before the Act had come into force,
before the Supreme Court was answered affirmatively and concluded that in considering such
petitions, the rule of beneficial construction required that even an ex-post-facto law of
punishment-mitigating nature can very well be applied, even in such decided case.

Matters out of the scope of Art. 20(1)

11
(2004) 5 SCC 518, p. 537
12
T. Barai v. Henry Ah Hoe, AIR 1983 SC 150
13
AIR 1953 SC 404
There is in fact no such exception to this rule in criminal field, other than Preventive
Detention14, or demanding a security from a press15 under a press law with respect to
retrospective laws.

Civil Liability and Punishment for violation

Art. 20(1) does not bar a civil liability being imposed retrospectively. In the case of Hathising
Mfg. Co. Ltd v. State of A.P16, an Act passed in June, 1957, imposed on the employers closing
their undertakings a liability to pay compensation to their employees since November 28, 1956.
This liability could be enforced by coercive process leading even to imprisonment in case of
failure to discharge it.

Tax Laws
Similar to civil liability, a tax can also be imposed retrospectively. In the case of Shiv Dutt Rai
Fateh Chand v. Union of India17, the SC observed that not only tax but a penalty under a tax
law imposed retrospectively does not violated Article 20(1) because the penalty is simply a civil
liability to be enforced by the tax authorities.

Judicial Interpretations
A judicial decision interpreting an existing law, which never came up for interpretation in respect
of a particular situation, does not create an offence for the first time and, therefore, does not
violate Art. 20(1).

According to Lily Thomas v. Union of India18, the judgement in Sarla Mudgal v. Union of
India19, upholding that a Hindu convert to Islam commits bigamy under Section 494 IPC, even if
he contracts the second marriage after such conversion while his first marriage subsists, applies
to similar bigamous marriages performed even before the Sarla decision.

Trial

14
Prahlad v. State of Bombay, AIR 1952 SC 329
15
Hathising Mfg. Co. Ltd v. State of A.P., AIR 1958 SC 468
16
ibid
17
AIR 1984 SC 1194
18
(2000) 6 SCC 224
19
AIR 1995 SC 1531
Only conviction or sentence is prohibited by Art. 20(1), and not trial or procedure. Trial for an
existing offence under a procedure different from what obtained at the time of the offence or by a
court different from that which had competence at that time cannot ipso facto be held to be
unconstitutional.20

Rules of Evidence
A new rule of evidence can also be made applicable to the trial of an offence committed earlier.
The case of Sajjan Singh v. State of Punjab21 is a notable one as its draws a thin line of
difference to determine the scope of Art. 20(1). To prevent corruption among government
servants in their official dealings, Parliament in 1947, passed the Prevention of Corruption Act,
which created the offence of criminal misconduct. Section 5(3) provided an additional mode of
proving the offence punishable under the Act, for which any accused person was being tried. The
additional mode was that by proving the extent of the pecuniary resources or property in the
possession of the accused or a person on his behalf, and thereafter showing that it was
disproportionate to his known sources of income and that the accused person could not
satisfactorily account for such possession, one could establish guilt, and on proof the court would
be obligated to presume that the accused person was guilty of criminal misconduct unless the
contrary was proved. This retrospectivity was challenged to be violative of Art.20(1). But the
Supreme Court rejected the plea of the accused and declared that the Act had no retrospective
operation by observing two main points: -
 “A statue 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 Act merely prescribes a rule of evidence for the purpose of proving the offence of
criminal misconduct as defined in the Act for which an accused person is already under
trial…”

Applicability of Ex-post-facto laws in other countries

In the US

20
UoI v. Sukumar Pyne, AIR 1966 SC 1206
21
AIR 1964, SC 464
Different to what is practiced in India, the position in the United State of America differs in the
way that an ex-post-facto law is in itself invalid, whereas it not so in India. In India, the courts
may also interpret a law in such a manner that any objection against it of retrospective operation
may be removed.22

While American jurisdictions generally prohibit ex post facto laws, European countries apply the
principle of lex mitior ("the milder law"). It provides that, if the law has changed after an offense
was committed, the version of the law that applies is the one that is more advantageous for the
accused. This means that ex post facto laws apply in European jurisdictions to the extent that
they are the milder law.23

22
Sardar Gyan Singh v. State of Bihar, AIR 1975 Pat 69
23
Westen, Peter (May 2015). "Lex Mitior: Converse of ex post facto and window into criminal desert". New
Criminal Law Review: An International and Interdisciplinary Journal. pp. 167–
213. doi:10.1525/nclr.2015.18.2.167.
CONCLUSION
Ex-post-facto laws are those which can be retrospectively applicable to offences which were
committed at a time when such acts were not offences or proscribed by the law of the land. For a
civilized society, these kind of laws cannot be made a part of the body of laws, as it creates a lot
of chaos and panic among the citizens. Protection from such laws are That is the main reason
why most of the forward looking countries like India, the US has banned such laws in their
Constitution itself.