Protection against ex-post-facto laws

The sentiment that ex post facto laws are against natural right 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 a caution which 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

I. 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 committed; or it may aggravate a crime 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-long imprisonment) 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 For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed.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.[4]

II. U.S. Constitution

A. Preliminary
The United States Constitution contains two Ex Post Facto clauses with the first applying to the federal government and the second applying to the states. The first Ex Post Facto Clause prohibits the United States Congress from passing an ex post facto law. The second Ex Post Facto Clause prohibits a state from passing an ex post facto law. The U.S. Constitution’s Art. 1, Sec. 9, C.3 states: ‘No Bill of Attainder or ex post facto Law shall be passed,’ and Section 10 says: ‘No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any bill of attainder, ex post facto laws’ ‘Words and the intent’ of the Ex Post Facto Clause encompass every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.’[5]

B. Calder V Bull

In Calder v. Bull[6], a late eighteenth century case involving a probate dispute over the property of a Connecticut doctor, the Supreme Court for the first time set forth an explanation of ex post facto laws prohibited by the Constitution. Justice Chase established four major categories of ex post facto laws: first, every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. Secondly, every law that aggravates a crime, or makes it greater than it was, when committed. Thirdly, every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. And fourth, every law that alters the legal rules of evidence, and receives less, or different; testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive. In distinguishing unconstitutional ex post facto laws from constitutional retroactive laws, Justice Chase suggested that legitimate laws applied retroactively, such as pardons mitigating criminal punishment, do not have the onerous characteristics found in that aggravate punishment.[7]

III. Position In U.K.

Ex post facto laws are strictly frowned upon, but are permitted by virtue of the doctrine of parliamentary sovereignty. Historically, all acts of Parliament before 1793 were ex post facto legislation, inasmuch as their date of effect was the first day of the session in which they were passed. This situation was rectified by the Acts of parliament (commencement) Act 1793. Ex post facto criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory, but parliamentary sovereignty takes priority even over this.[8]

IV. 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.[9] 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.[10] 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.[11]

V. Scope of Article 20(1)

The scope of Art. 20(1) has been fully considered by a constitutional bench of the Supreme Court in K. Satwat Singh v. State of Punjab[12] according to S.420, 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 S.420. The Supreme Court held that Art. 20(1) was not infringed by the trial of S.under the ordinance because the minimum penalty prescribed by it could not be said to be greater than what could be inflicted on S. under the law (S.420) in force at the time he committed the offence.

Under Art. 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 no be said to be greater than what might have been inflicted under S.420, the law in force at the time of the commission of the offence, because the fine which could have been imposed upon under S. 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.[13]

Imposing or increasing a penalty with retrospective effect of violation of a taxing statute does not infringe Art. 20(1). The reason for this proposition has been explained by the Supreme Court in Shiv Dutt Rai Fateh Chand v.Union of India.[14] Art. 20 contemplates proceedings in the nature of criminal proceedings and it does not apply to proceedings under a sales tax law which have a civil sanction and are 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 Art. 20(1). Therefore, an accused should have the benefit of a retrospective or illustrated by Rattan Lal v. State of Punjab.[15] 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.

VI. 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.

VII. Role of Supreme Court

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.[16] 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.[17]Imposing retrospectively special rates for unauthorized use of canal water is not hit by Art. 20(1).[18]
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).[19] A change in court entitled to try an offence is not hit by Art. 20(1).[20] 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 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 Sujjan Singh v. State of Punjab[21]vis-à-vis Art. 20(1). 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 (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.[22]

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.[23]

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.[24]

VIII. 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.

Endnotes
[1].Corwin (1958), The Constitution and What It Means Today, (New York, Clarity Pub.)
[2]. James Kent (1860), Commentaries on American Law, (Little, Brown and Company)
[3].David C.Brody (2000), Criminal Law, (Wayne A. Logan )
[4]. Thomas McIntyre Cooley (1999), Treaties on the Constitutional Limitations Which Rest Upon the Legislative, (The Lawbook Exchange Ltd.)
[5]. U.S.Constitution.
[6]. 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).
[7].Ashran Jen (2004), Stogner V. Califirnia: A Collision between the Ex Post Facto Clause and California’s Interest in Protecting Child Sex Abuse Victims, Journal of Criminal Law and Criminology,Vol.94.
[8]. http://www.parliament.uk/archives/ accessed on 2007-10-10.
[9]. Kanaiyalal v. Indumati, AIR 1958 SC 444: 1958 SCR 1394.
[10].Wealth Tax Commr. Amritsar v. Suresh Seth, AIR 1981SC 1106: (1981) 2SCC 790.
[11].Prof.M.P.Jain(2004), Indian Constitutional Law,(Wadhwa, Nagpur)
[12].AIR 1960 SC 266: (1960) 2 SCR 89.
[13].Maya Rani v. I.T. Commr.Delhi, AIR 1986 SC 293
[14].AIR 1984 SC 1194.
[15].AIR 1965 SC 444.
[16].AIR 1977 SC 2279
[17] Sunderaramier &Co.v.State of Andhra Pardes, AIR 1958 SC 468.
[18].Jawala Ram v. Pepsu, AIR 1962 SC 1246.
[19].Union of India v.Sukumar, AIR 1966 SC 1206.
[20].Shiv Bahadur v. Vindhya Pardesh, AIR 1953 SC 394.
[21].AIR 1964 SC 464
[22].Chief Inspector of Mines v. Karam Chand Thapra, AIR 1961 SC 838.
[23].T.Barai v. Henry Ah Hoe, AIR 1983 SC 150.
[24].Sardar Gyan Singh v. State of Bihar, AIR 1975 Pat.69.

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