Ex Post Facto Guarantee

“The sentiments that Ex post facto laws are against natural rights is so strong that,few,if,any ,of the state constitutions have failed to proscribe them.The constitution indeed interdicts them in criminal cases only ;but they are equally unjust in civil as in criminal cases ,and the omission of the caution hich would have been right,does not justify the doing what is wrong.Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense,if by rules of construction it can be ever strained to what is just”-Thomas Jefferson

INTRODUCTION
An ex-post-facto law is a law which imposes penalties retroactively, that is, upon acts already done, or which increases the penalty for the past acts.
[1] An ex post facto law (from the Latin for "from something done afterward")or retrospective law is a law that retrospectively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-longimprisonment) retrospectively.

[2] A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law,The repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed.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.

[3] Generally speaking, ex post facto laws are seen 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.

Ex-post facto Laws
Latin for "after the fact," which refers to laws adopted after an act is committed making it illegal although it was legal when done, or increasing the penalty for a crime after it is committed. Such laws are specifically prohibited by the U.S. Constitution. Therefore, if a state legislature enacts new rules of proof or longer sentences, those new rules or sentences do not apply to crimes committed before the new law was adopted.

In the field of criminal law an ex post facto legislation, is prohibited. We have therefore to find out the scope of such legislation and how far the present Ordinance is a retroactive law. In the matter of ex post facto legislation having retroactive effect, there is considerable difference between what obtains in the United States of America and what is in vogue in England. At page 383 of "Law in the Making" by C. K. Allen, the learned author observes as follows:

"There is, in all civilized states, the strongest prejudice against retrospective or ex post facto legislation, since it is, in the words of Willes J., 'prima facie' of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law."

Is Ex post Facto Laws are Laws???
An ex post facto law (from the Latin for “from something done afterward”) or retroactive law is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law.
Ex post facto laws are laws that, retrospectively increase punishments for existing offences, Laws that do not directly punish persons but which create new liabilities for past conduct as judicially determined, Laws that retrospectively remove defenses or exceptions to civil or criminal liability. Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. At this point of time question comes in the mind that is ex post facto law is law? If it’s not a law then what is the mechanism for protection against such laws.

Moral objections against ex post facto laws???
Suppose a person does an act in 1990 which is not then unlawful.A law is passed in 1992 making that act a criminal offence and seeking to punish that person for what he did in 1990. Or suppose, punishment prescribed is increased in 1992 to imprisonment for a year, and is made applicable to the offences committed before 1992. These both are the examples of the ex- post facto laws. Such laws are regarded as inequitable and abhorrent to the notions of justice.

Universal Declaration of Human Rights and related treaties
Article 11, paragraph 2 of the Universal Declaration of Human Rights provides that no person be held guilty of any criminal law that did not exist at the time of offence nor suffer any penalty heavier than what existed at the time of offense. It does however permit application of either domestic or international law.
Article 15, paragraph 1 of the International Covenant on Civil and Political Rights nearly mirrors the language used by the Universal Declaration of Human Rights, replacing the term 'penal offense' with 'criminal offense'. It also adds that if a lighter penalty is provided for after commission of the offense, that lighter penalty shall apply. Paragraph 2 adds a provision that paragraph 1 does not prevent trying and punishing for an act that was criminal under according to the general principles of law recognized by the community of nations. Specifically addressing the use of the death penalty, article 6, paragraph 2 provides in relevant part that a death sentence may only be imposed "...for the most serious crimes in accordance with the law in force at the time of the commission of the crime...."

INDIAN CONSTITUTION
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 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
(not an offence when done) as an offence, will not make the person liable for being convicted under it. The second part of Art. 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 Art. 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 or 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 that which had competence ate 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.

Article 20(1)
“ no person shall be convicted of any offence except for violation of a law in force at that time of the commission of the act charged as an offence , nor be subject to a penalty greater than what might have been inflicted under the law in force at the time of the commission of the offence..”

1. A sovereign legislature has the power to enact prospective as well as retrospective laws , as is provided in article 245 of the Indian constitution , but the present article sets two limitation upon the law making power of every legislature authority in India as regard retrospective criminal legislation .

It prohibits:
(i) the making, of ex post facto criminal laws i.e making an act a crime for the first time and then making that law retrospective
(ii) The infliction of a penalty greater than that which might have been inflicted under the law which was in force when the act was committed.

1. This point can be explained through a case law .The accused committed an offence in 1947 , which under the act then in force was punishable by fine or imprisonment or both . the act amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence . The Supreme Court held that the enhanced punishment could not be applicable to the act committed by the accused in 1947 and hence set aside the additional fine imposed by the amended act.

2. The prohibition of the clause is not only against the passing of such retroactive law but also against the conviction under such law.
(a) there is nothing in this clause which creates a vested in any course of procedure .hence, art 20(1) does not bar the trial of the accused by a procedure other than that which existed when the offence was committed, provided the change in the procedure is not of such a nature as to constitute a new offence or a penalty greater than that which could be inflicted at the time when the offence had been committed.

(b) Nor has it any application to a law which merely mollifies the rigours of the criminal law.A boy of 16 yrs of age was found guilty of an offence and was awarded a rigorous imprisonment of 6 months and also imposed a fine on 31-5- 1962. his appeal was dismissed by the sessions judge on 22-9-1962 and by the high court on 27-9-1962. the probation of offenders act came into force on 1-9-1962 . no plea was taken before the high court that the boy should be given benefit of the act. Later he filed an appeal in the supreme court by special leave and it was argued that he should be given the benefit of the act . government argued that the act is not retrospective and the offence was committed much before the act came into the force . But sc observed that “ an ex post facto law which only mollifies the rigours of a criminal act does not fall within the said prohibition. If a particular law makes provision to that effect though retrospective in operation ,it wall be valid. The court therefore ruled that the rule of beneficent construction required that even an ex post facto law of the type involved here ought to be applied to reduce the punishment of the young offender.

(c) The statute should be properly constructed before applying this code .

There was a case which discussed the validity of the law that was passed for fixing rates of minimum wages retrospectively as per the Minimum Wages Act, 1948 – The Court ruled that on a proper construction of Sections 3 and 4 of the impugned Act, the attack on the validity of the section on the ground of a contravention of Article 20(1) of the Constitution would be failed –Also, on a proper construction of Sections 3 and 4 of the impugned attack on the validity of the section on the ground of contravention of Article 20(1) of the Constitution must fail

(d) The clause has no application to a civil liability unless the statute makes the failure to discharge such liability an offence As in this case, an act was passed in june in 1957 impose 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 to imprisonment in case of failure to discharge it. The supreme court held that the liability imposed by the laws was a civil liability which was not an offence under and so article 20(1) could not be apply to the liability for the period November 28 ,1956 to june 1957.

Indian Constitution and 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 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 (not an offence when done) as an offence, will not make the person liable for being convicted under it.The second part of Art. 20(1) immunizes a person from a penaltygreater 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 Art. 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 or 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 that which had competence ate 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.

Validation Of A Statutory Provision Declared As Ultra-Virus And Giving Retrospective Effect To It
By far one of the most difficult aspects of drafting concerns validating laws which have been declared ultra virus or validating them retrospectively. If a statute has been struck down by the Court as being defective in certain respects and, therefore, unconstitutional, the legislature can remove the defect and give retrospectivity to the statutory removal of the defect and thus make the statute valid with retrospective effect. The statute can then validate the provision which has been struck down. It can give retrospective effect to the validation. Of course, it is obvious that where a statute is struck down on the ground of lack of legislative competence as not being within the scope of the subjects listed in the relevant list of the VII Schedule of the Constitution, there is no scope for validating such a law.

Care must be taken, while removing the defect retrospectively, that the judicial decision as such is not overruled by the legislation for that would be ultra vires of the principle of separation of powers between the legislature and the judiciary and as each has its own respective jurisdiction and powers. While a statute cannot be drafted in a manner just to override a judgment, it can, however, rectify the defect pointed out by the Court and remove the defect with retrospective effect. The validating section then uses the words ‘Notwithstanding any judgment, decree or order of Court’ and if this is properly done, it is permissible in law to validate the provision which is struck down by the Court and this will not amount to encroaching into the field earmarked for the judiciary under the doctrine of separation of powers.

Verdicts of Supreme Court and Ex Post Facto Laws:
Supreme Court of India has played an important role in exploring as well in interpreting the doctrine of ex-post-facto law. Apart from above mentioned cases there are several cased in which apex court has dealt with the questions regarding operation of such laws. In R.S.Joshi v. Ajit Mills Ltd 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.Imposing retrospectively special rates for unauthorized use of canal water is not hit by Art. 20(1).
Art. 20(1) does not make a right to any course of procedure a vested right. Thus, a law which retrospectively changes the venue of trial of an offence from a criminal court to an administrative tribunal is not hit by Art. 20(1).[9] A change in court entitled to try an offence is not hit by Art. 20(1).[10] Similarly, a rule of evidence can be made applicable to the trial of an offence committed earlier.
In order to punish corrupt government officers, parliament has enacted the preventive of corruption Act which creates the offence of criminal misconduct. S. 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 disproportionate to his know 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 Sujjan Singh v. State of Punjab vis-à-vis Art. 20(1). Itwas 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 (by a fiction of law), 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 slightly different situation is presented by the following fact-situation. 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 existence at the date of the commission of the offence
When a late statute again describes an offence describes an offence created by a statute enacted earlier, and the later statute imposes a different punishment, the earlier statute is repealed by implication. But that is subject to Art. 20(1) against ex-post-facto law providing for a greater punishment. The later Act will have no application if the offence described therein is not her 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.

Further, what Art. 20(1) prohibits is conviction and sentence under as 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. In lily Thomas v. Union of India it was argued that the law declared by the Supreme Court in Sarla Mudgal could not be given retrospective effect because of Art. 20(1); it ought to be given only prospective operation so that the ruling could not be applied to a person who had already solemnised the second marriage prior to the date of the Sarla Mudgal judgment. However, Supreme Court rejected the contention arguing that it had not laid down any new law in Sarla Mudgal. What the court did in that case was only the law which had always been existence.

“Shall Be Convicted”:
1- What is prohibited under clause I is only the conviction and not the trial thereof. Hence the trial under the procedure different from what has been obtained at the time of the commission of the offence or by a court different from that which had competence at that time cannot ipso facto be held to be unconstitutional. A person accused of the commission of the offence has no fundamental right to trial by a particular court or by a violation of any other fundamental right may be involved.In short the prohibition under this clause does not extend to merely procedural laws, and a procedural law would not contravene art. 20(1) merely because retrospective effect is given to it.
2- The prohibition is only against prescribing judicial punishment with retrospective effect. it does not prohibit the enforcement of any other sanction by a civil or revenue authority , e.g the loss or deprivation of any business or forfeiture of property or cancellation of naturalization certificate by reason of act committed prior to the operation of the penal law in question or the imposition of some statutory penalty , to enforce a civil liability
3- The words convicted and offence make it clear that the article has no application to preventive detention or an order of externment but deals with punishment for offences and provides two safeguard in relation thereto: namely-
(i) That no one shall be punished for an act which was not an offence under the law in force, when it was committed.
(ii) That no one shall be subjected to a greater penalty for an offence than what was provided under the law in force when the offence was committed .
4- On the other hand the prohibition under the present clause is not confined to the passing or the validity of the law , but extends to the conviction or the sentence based on its character as an ex post facto law . the clause therefore must be taken to prohibit all the convictions or subjections to penalty which take place after the commencement of the constitution in respect of an ex post facto law whether the same was a post constitution or a pre constitutional law.

‘Offence’
1- for the application of article 20(1) there should be an ‘offence’

2- There being no definition of offence in the constitution. The definition in section 3 (37) of the general clauses act is to be applied. it is therefore ,means an act or omission which is punishable by any law by the way of fine imprisonment or death . but unless there is a law forbidding the doing or the omission to do something , no question of ‘punishment’ comes.
Hence where a law of irrigation provides for the levy of a special rate of unauthorized use with retrospective effect , it cannot be held that the legislature was imposing a higher penalty in contravention of article 20(1) , inasmuch as there was no law prohibiting the use of water and no ‘punishment’ for an ‘offence’.

3- What this clause prohibits is the creation of a new offence with retrospective effect. It does not prohibit the creation of a new rule of evidence or a presumption for an existing ‘offence’.

4-In absence of any evidence to show that the offence was committed, the conviction could not be sustained.

‘Law In Force’
1. This expression refers to the law factually in operation at the time when the offence was committed and does not relate to law ‘deemed to be in force’ by the retrospective operation of a law subsequently made.Article 20(1), in fact, controls the power of the legislature to enact such retrospective legislation so far as the punishment for crimes is concerned.

2. The law for the violation of which a person is sought to be convicted must have been in force at the time when the act with which it is charged was committed . it follows , therefore, that a person cannot be convicted for an act , which was not an offence under the law which was in force when that act was committed.

3. but the rules and regulations made under a statue which is repealed but continued in force under s. 24 of the general clauses act are ‘ laws in force’ within the meaning of the article 20(1).The result is the same when a repealed act is revived.

4. An employee of a bank of cochin was served with charge sheet but subsequently the having been amalgamated with the state bank of India, penalty was imposed on him under the rules of the SBI. It was held that the penalty could be imposed under the rules of the bank of cochin

‘Penalty Greater Than That Which Might Have Been Inflicted’
These words lays down the second prohibition contained in the clause . a person may be subjected to only those penalties which were prescribed by the law which was in force at the time when he committed the offence for which he is being punished . if an additional or higher penalty is prescribed by any law made subsequent to the commission of the offence ,that will not operate against him in respect of the offence in question. But the article does not prohibit the substitution of a penalty which is not higher or greater than the previous one or the mollifications of the rigours of criminal law.It has been mentioned that no greater penalty has been imposed by the later law , in the following cases Where the general law prescribes an unlimited fine ,and a later special law specifies a minimum amount less than which a sentence of fine cannot be imposed in a case of conviction .in the case the specification of minimum does not impose a “greater” penalty because the general law was silent as the extent of the penalty which could be awarded.

‘Penalty
1- penalty means punishment for the offence and would not include any other remedial measure provided for removing the mischief, ex. Summary eviction of a landlord who has contravened the provisions of a rent control law; or the civil liability to pay an enhanced water rate in case of an unauthorized use of water, forfeiture of property to recover embezzled money.

2 -On the other hand, the following are ‘penalty’ for the purposes of this article-forfeiture of property under section 53 , IPC, ordered by a court trying an offence compensatory fine under s. 9(1) of the west Bengal cr. Law amendment (special courts) act , 1949 liability for compensation under s. 25FFF of industrial disputes act ,1974 special rates under s. 31 of the northern India canal and drainage act ,1873

CONCLUSION
Provision of ex-post-facto laws was considered as one of the privilege available to legislators. But due to the developments in the field of law and more research and analysis now it is not that much straightforward for law makers to abuse or use it according to their convenience. Our apex court has played a very vital role in ensuring the protection against such potential maltreatment of the principle. It is not enough to think that we are now secure against such misuse but it is the prudent need to ponder over the probable threats which may arise with new advancements in the gigantic field of law. Article 20(1) is truly a blessing to all of us. An act done innocently by an individual in the past, which is illegal in the present, the state cannot prosecute the individual as it is against the principle of natural justice because the individual when committing the act couldn’t have reasonably or by any other method come to know that the act would become illegal in the future. Thus criminal laws with retrospective effect are totally absurd, unfair and unjust. Having criminal laws with retrospective effect is against the right to life because when the person commits certain act and later on that act becomes a crime so if criminal laws with retrospective effect exists then that person would be held liable even though he committed the act innocently. So punishing a person who has committed an act innocently is against right to life.