1

SUBJECT CONSTITUTIONAL LAW- I

PROJECT TOPIC:
EX POST FACTO LAWS

SUBMITTED BY:
HARSHIT GOEL
ROLL NUMBER: 1130 STREAM: B.A.LL.B. (Hons.)

SUBMITTED TO:
Prof. (DR.) A. Subrahmanyam
FACULTY OF CONSTITUTIONAL LAW- I

CHANAKYA NATIONAL LAW UNIVERSITY,PATNA

OCTOBER, 2016
PATNA
 2

ACKNOWLEDGEMENT
It's a fact that any research work prepared, compiled or formulated in isolation is inexplicable
to an extent. This research work, although prepared by the researcher, is a culmination of
efforts of a lot of people.
Firstly, I would like to thank our Teacher for giving such a topic to research which is a very
interesting and important topic of research. I would like to thank him for his valuable
suggestions towards the making of this project.
I cannot ignore the contributions made by my classmates and friends towards the completion
of this project work .And I would also like to express my gratitude towards the library staff of
my college who assisted me in acquiring the sources necessary for the compilation of my
project.
Thank You,
Harshit Goel,
Chanakya National Law University
 3

TABLEOFCONTENT

1. Chapter 1
Introduction . 04
2. Chapter 2
Ex Post Facto Laws : Complete Understanding ... 06
3. Chapter 3
Ex Post Laws : Issues and Challenges ... 10
4. Chapter 4
Conclusion .... 17
5. Bibliography ...18
 4

CHAPTER 1
INTRODUCTION
The idea of retroactive illegality makes any sense only if legality is understood as a
provisional condition dependent on the future will of a legislative authority. If this is the case,
the laws 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 social life. 1 Certain activities are thought to
be lawful at one point of time and unlawful at another. An act that was thought innocent at the
time of its commission is no longer innocent today but is illegal. These changing
circumstances may prompt wrongful discipline of numerous blameless people. Ex post facto
law is law that retroactively makes act that was not an offence or against the law while the act
was performed thereby increases the penalization for offence that has been already
committed, or changes the principles of procedure effective at the time once the offence was
committed. Thence it will increase the penalization for the offence committed and thereby the
wrongdoer is in disadvantageous position. The motivation behind this restriction is to
guarantee that people have reasonable cautioning of authoritative acts that could work to their
impediment. .A retroactive law is one that takes away or impairs unconditional rights beneath
existing laws, creates a new obligation, imposes new duties, or attaches a replacement and
completely different legal impact to issues already past. A retroactive statute works forward
in time, beginning from a point further back in time than the date of its authorization; so it
changes the lawful results of past occasions as though the law had been unique in relation to
it truly was at the time those occasions happened. 2 If a person has been punished for an act
that has been done in 2014 and a law has been passed in 2015 which penalizes the act or
enhances the punishment for the same offence. The law passed in 2015 cannot be applied to
punish the person because it violates the principle of protection against ex-post facto laws. 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 lifelong
imprisonment) retrospectively.3 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.

1 Suri Ratnapala, Reason and Reach of the Objection to Ex Post Facto Law, (2007) 1:1 The Indian Journal of
Constitutional Law, 140-168.

2 Hornby Island Trust Committee v. Stormwell, 1988 3143 (BC CA)

3 James Kent (1860), Commentaries on American Law, (Little, Brown and Company)
 5

HISTORICAL PERSPECTIVE AND LEGAL MAXIMS

On looking at the historical perspective, ex-post facto laws is the principle that law should no
apply to the events which occurred before their passage date at least from Roman tribes. 4
Verres had been berated by Cicero for making the provision of Lex Voconia retroactive and
on the other hand Justinian Code repeated the retroaction as a settled law. The concept of Ex-
Post Facto law is an aspect of the fundamental maxim, nulla poena sine lege: there can be no
punishment without lawin this case, without preexisting law. As said by Thomas Jefferson
that "Every man should be protected in his lawful acts, and be certain that no ex post facto
law shall punish or undamaged him for them." 5 These kinds of law that penalizes for the act
committed in past are against the notion of morality and the justice and that is why many
countries have provided safeguards against such acts. The maxim which advocates the
concept of Ex-Post Facto laws is nulla poena sine lege, it means that there can be no
punishment without law. The principle has been rooted in Roman law. These kinds of laws
are against the principle of human rights because it takes the individual liberty of the person
and ultimately it will create havoc in the society. Ex-Post Facto law has been recognized in
different form in the laws of the various countries but the essence is same id est protection of
individual liberty, freedom and rights. Another maxim that advocates Ex Post Facto laws is
Nullum crimen, nulla poena sine praevia lege poenalil which means that there exists no
crime and no punishment without a pre-existing penal law. Some other aspects that can be
deduced from the maxims that advocate ex-post facto laws include that there cannot be any
penalty without any written laws or the law whose meaning is not definite. 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.6

4 Seligmens Encyclopedia of the Social Sciences, ISBN 81-307-0498-6, Pg 355.

5 Thomas Jefferson to Isaac McPherson, 1813. ME 13:326.
6 Supra Note 1.
 6

CHAPTER 2
EX POST FACTO LAWS : COMPLETE
UNDERSTANDING
People expect to be able to act in accordance with the law.7 That expectation would be
comprehensively defeated if all the directives that composed a purported system of
governance were kept secret, or were dispensed ad hoc, or required citizens to do things that
nobody can do, or changed with alarming frequency, or were contradictory or unintelligible.
Even if citizens considered themselve obliged to respect the systems directives they would
either find it impossible to do so, or at best be able to do so only at an immense cost.
Anybody who, in the manner of Lon Fullers hapless Rex, sought to rule by such directives
would be hard pressed to explain that they had created a system of law.8 Among these
directives there is one which stands slightly apart from the others. This directive is sometimes
termed an ex post facto law. The term is bad Latinit should be ex post facto law.9 It is also
unhelpful if interpreted literallyas meaning law after the factfor many facts occurs
today and many laws will be passed tomorrow: all laws come after facts. There must, if the
term is to mean anything, be a fact (or some facts) after which a law comes and upon which
that law has Professor of English Law, London School of Economics. The concept still poses
a problem even when narrowed thus, for even laws understood to be prospective rather than
ex post facto normally alter legal categorizations or liabilities attaching to extant facts. A law
could relate distinctly to past facts by determining that the legal consequences attaching to
those facts were when the facts emerged, different from what anyone would have understood
them to be at that time. This law gives to legal officials a genuine power to attach a new
liability to a past action, but it cannot have imposed a duty to act in a particular way when the
relevant action occurred; it takes effect, rather, as if the actor could have taken it into account
when choosing how to act. This example of an ex post facto law, a retroactive law, is the one
most often scorned and spurned. A legal system composed exclusively of directives
determining today what the legal status of past actions was at the point when they were taken
would command no more public respect, Fuller maintained, than one composed only of
directives which are customized and non-generalizable, or which are not promulgated, or
which constantly change, or which make no sense, or which require simultaneous
performance of and abstention from the same action.10 Taken by itself, he added, even a
single retroactive law is truly a monstrosity, for, in determining tomorrow how todays
7 Throughout I refer to agents actions. I forgo adding that the question of legal liability could equally relate to
an agents inaction, or to states of affairs involving neither action nor inaction (such as reaching the age of
majority).

8 Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1964), 39.
9 See C[harles] S[weet], Note, Law Quarterly Review 34 (1918): 8.
 7

conduct is governed, it contradicts standard human instincts about how there should be no
legal wrong without there already being in place a law specifying that wrong, and how people
should be able at least to discover the rules that apply to them so that they might organize
their lives accordingly.11 But Fuller was pointedly not claiming that a retroactive law must be
monstrous come what may. His view resembled, rather, that of his jurisprudential
nearcontemporary, Tony Woozley: that legislators should always feel uncomfortable about
enacting retroactive laws, but equally should recognize that those feelings are sometimes
rightly discounted.12 While a legislature which took it upon itself to enact a law which is
unintelligible, contradictory, demands the impossible, etc., would be at a loss to show that
there are arguments from legality or fairness which support its having done so, Fuller
thought, this is not necessarily the case with a law which attaches a new legal consequence to
a past action at the point when the action was taken: this law, he appreciated, may in some
cases actually serve the ends of legality and fairness. 13 Fuller was reflecting specifically on
the ex post facto law which reaches back in time and alters the legal status of an action at the
point of commission. Not every ex post facto law takes this form. An ex post facto law could
be retrospective rather than retroactive, looking back to past actions and determining that
legal liabilities relating to those actions are altered not from the time when they took place,
but from the point at which the law was laid down. Most of the first half of this article
(sections III and IV) primarily concerns retrospective law, while most of the second half
(sections V and VI) concerns retroactive law. Both retrospective and retroactive laws raise
some intriguing questions, and there is plenty of reflective scholarship addressing them. None
of the questions raised in this article has gone unnoticed by legal theorists, and some
questions considered by others are left to one side. What I try to do is cast some fresh light on
three questions which have been examined quite regularly in jurisprudential literature but
which still prove troublesome. The first is that of how one mightas clearly one can
sensibly say that some laws but not others operate ex post facto notwithstanding that any law
is, if only in some trite sense, amenable to being categorized as an ex post facto law. The
second is that of what, exactly, the full range of explanations might be for familiar
propositions to the effect that, considered in the abstract, retroactive laws are monstrous, 14
unreasonable,15 against every sound principle of lawmaking, 16 and so on. The third
concerns the case to be made for retroactive law making: how sound are the various reasons
that can be identified as supporting particular instances of retroactive legislation? I conclude
with some brief reflections on a fourth questionwhy is it legal rules, rather than judicial

10 Fuller, The Morality of Law, 53. In much the same vein, see N. E. Simmonds, The Nature of Law: Three
Problems with One Solution, German Law Journal 12 (2011): 601, 615-6.

11 Fuller, The Morality of Law, 53.

12 Our ingrained anti-attitude towards retrospective law is valuable as a reminder to authority (including
ourselves when we are the authority) not to try to get away with something. As a legislator I hope that I would
always have feelings of guilt whenever I practised retrospective lawmaking, but as a man I hope that I should be
capable of acknowledging, on occasion, that the feelings were on that occasion irrational. A. D. Woozley,
What is Wrong with Retrospective Law?, Philosophical Quarterly 18 (1968): 40, 53. (Woozley uses
retrospective, retroactive, and ex post facto interchangeably: ibid., 40.)

13 Lon L. Fuller, The Anatomy of the Law (Harmondsworth: Penguin, 1971 [1968]), 93.
 8

rulings, that are commonly found objectionable for retroactivity?though my answer to that
question, that some retroactivity in adjudication is simply inescapable, could hardly be said to
be novel.
An ex post facto law is:
1. one which alters the status of a past action so as to attach to it at the point of performance a
legal consequence that did not exist, and so could not be known, at that point; or
2. one which takes effect from the point at which it is announced yet which, without giving
citizens fair warning or opportunity to reorganize their affairs, alters the legal status of a past
but unconcluded action so that those who have taken and are committed to that action
become citizens who are breaking rather than complying with the law; or
3. one which takes effect from the point at which it is announced, and which changes the law
so as to interfere with rights already acquired because of a court ruling, because of the
existence of specific legal arrangements or relationships (contracts, trusts, conveyances of
land, and so on), or because of rules taking effect owing to the passage of a period of time
(rules conferring rights on reaching the age of majority, rules of prescription); or
4. one which takes effect from the point at which it is announced, and which changes the law
so as to deprive parties of legal actions, defenses, immunities and rights of appeal so that they
are forced to abandon or concede defeat in cases which are already underway in the courts.
The first of these categories describes a retroactive law, whereas the other three describe
retrospective laws. It would be a mistake to think of ex post facto law as an entirely forbidden
form of legislation. Though some human rights instruments and constitutions prohibit the
enactment of ex post facto laws, the prohibitions do not, or are certainly never read to,
encompass all of the instances set out above. Article 7 of the European Convention on Human
Rights (ECHR), Article 11 of the Universal Declaration of Human Rights, and Article 15 of
the International Covenant on Civil and Political Rightsall of which forbid ex post facto
law-makingspecifically relate to the criminal law. The same can be said of the prohibitions
on ex post facto laws to be found in various national charters, constitutions, and bills of
rights: for example, Article 1 of the United States Constitution, though it provides that neither
Congress nor the state legislatures shall pass ex post facto laws, 17 has long been interpreted to
apply only to the enactment of penal statutes.18 If an ex post facto law falls outside the range
14 Fortunatus Dwarris, A General Treatise on Statutes: Their Rules of Construction, and the Proper Boundaries
of Legislation and of Judicial Interpretation (with American Notes and Additions by Platt Potter) (Albany, NY:
Gould & Sons, 1871), 165.

15 William Blackstone, Commentaries on the Laws of England 1: 46.

16 James Kent, Commentaries on American Law 1: 426.
17 U.S. Constitution, Art. 1, s. 9(3) (No ...ex post facto Law shall be passed), s. 10(1) (No State shall ...
pass any ...ex post facto Law).

18 See Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). Not that it could never be interpreted otherwise: see Eastern
Enterprises v. Apfel, 524 U.S. 498, 538-9 (1998) (Thomas J concurring) ([T]his Court has considered the Ex
Post Facto Clause to apply only in the criminal context. I have never been convinced of the soundness of this
 9

of ex post facto laws which a constitution enables its courts to review, it might still be
possible for judges to strike down the relevant law because it offends against some other part
of the constitution (in the United States, for example, some civil ex post facto laws have been
found to be unconstitutional because they offend against the due process and takings
clauses13). Furthermore, when the constitutionality of ex post facto legislation cannot be
reviewed, either because the statute does not fall foul of the constitution or because the legal
system to which it belongs abides by the principle of legislative supremacy, a court will
presume that the statute should not operate as an ex post facto law if it can be interpreted as
not operating thus.19 Legislative supremacy means, nevertheless, that a legislature is entitled
to enact ex post facto laws, and that a presumption against retroactive or retrospective
operation cannot be raised if the language of a statute makes it plainas it sometimes will15
that this is how the legislature intended the statute to operate. 20 Legislation the object of
which is to make legal transactions which when they took place were illegal, Dicey wrote,
is ... the highest exertion and crowning proof of sovereign power.21 A court which adheres
to the principle of legislative supremacy might still find a plainly ex post facto law to be
inconsistent with treaty obligationsthe capacity granted by parliament to the UK courts to
declare national legislation incompatible with the UKs obligations under the ECHR is a case
in point18but such a finding is essentially a recommendation rather than a judicial
determination as to statutory validity. The recommendation might lead to the repeal or
amendment of the impugned ex post facto law, but whether that law is to be repealed or
amended is a decision for the legislature; there is no obligation on the legislature to revisit the
law because a court finds it objectionable. Nothing in this article goes to the question of how
ex post facto laws might be defeated. The main point of the analysis, rather, is to identify the
range of possible reasons for objecting to, as well as reasons for favoring, an ex post facto
law.
limitation, which in Calder was principally justified because a contrary interpretation would render the Takings
Clause unnecessary. ... In an appropriate case, therefore, I would be willing to reconsider Calder and its progeny
to determine whether a retroactive civil law that passes muster under our current Takings Clause jurisprudence is
nonetheless unconstitutional under the Ex Post Facto Clause).

19 That a law is deemed to operateex post facto does not mean that the legislature must have intended to enact
ex post facto law. When a court presumes against a law operating ex post facto, the determination is that the
legislature, though it might have intended to enact ex post facto law, did not choose statutory language which
makes this intention clear.

20 See Lauri v. Renad [1892] 3 Ch. 402, 421 per Lindley LJ; Williams v. Williams [1971] P. 271, 278 per Lord
Simon (This rule [against retrospection of statutes] is a presumption only; and it may be overcome either by
express words in the statute showing that the provision is intended to be retrospective, or by necessary and
distinct implication demonstrating such an intention); Arnold v. Central Electricity Generating Board [1988]
A.C. 228, 275 per Lord Bridge; Re Barretto [1994] Q.B. 392 (CA), 400-01 per Sir Thomas Bingham, MR. There
was a time when the British parliament customarily resorted to the doctrine of relation back (i.e., whereby an
action taken at a later point is legally considered to have taken place at an earlier time). Acts passed in any
parliamentary session came into force not at the date of royal assent but rather from the opening day of the
session, so that a statute enacted late in the session could attach to actions taken earlier in the session liabilities
which the actors could not have known about when they acted. The Acts of Parliament (Commencement) Act
1793 altered the presumption, so that from this point onwards statutes would (unless some other date was stated
in the statute) come into force on the day they received royal assent.

21 A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: Macmillan, 1927),
47-8
10
 11

CHAPTER 3
EX POST FACTO LAWS : ISSUES AND
CHALLENGES
Retroactive law-making by legislatures is not always to be condemned, though the instances
in which it is to be condoned make for exceptions rather than the rule. Butone last question
by way of conclusionwhat of retroactive law-making by judges? When judges make
rulings which overrule precedents, or make rulings which are unprecedented (on the basis
that there is, in the case to be decided, some material facts or fact which do or does not obtain
in any available precedent), they are very likelythough not necessarilymodifying or
supplementing the common law. These modifications or supplements to the existing common
from law apply to facts which predate their announcement and could disturbthough, again,
they will not necessarily disturbvested rights. A ruling which alters the legal status of
actions already taken or interferes with rights already acquired has the features of an ex post
facto lawretrospective if it takes effect from date of the courts judgment, retroactive if it
applies from some point earlier (typically, the point at which the facts which occasioned the
ruling arose). Whether it is considered retrospective or retroactive, the parties to the case
could not have known of this law at the time of the cause of action, because it did not exist at
that time. [C]ourts are constantly making ex post facto Law, John Chipman Gray thought,
because they are constantly in the practice of applying ...rules which were not in existence
and were, therefore, not knowable by the parties when the causes of controversy occurred. 22
Is this a problem? There is no mileage in responding that retroactive judgemade law is the
price to be paid for having courts resolve disputes. In many if not most cases, there are parties
who did not want to appear in court or be subject to a judicial ruling. It is not inconceivable,
furthermore, for courts to issue rulings which apply to like cases arising only after the rulings
have been announced;23 the fact that courts occasionally entertain, and in some jurisdictions
actually adopt, versions of prospective overruling is evidence that judges sometimes consider
retroactivity in the common law as a problem to be reckoned with. 24 Nor does it make sense

22 John Chipman Gray, The Nature and Sources of the Law, 2d ed. (New York: Macmillan, 1921), 99-100.
23 So, e.g., in Royal Bank of Scotland plc v. Etridge (No. 2) [2002] 2 A.C. 773, the House of Lords held that
when a mortgagee contemplates issuing a mortgage to (e.g.) a husband, but requires not only his signature on
the mortgage but also his wifes (so that the mortgagees rights in the mortgaged property take priority over the
wifes in the event of a default on the loan), the mortgagee must in future...communicate directly with the wife,
informing her that ... it will require written confirmation from a solicitor, acting for her, to the effect that the
solicitor has fully explained to her the nature of the [mortgage] documents and the practical implications they
will have for her (ibid., 811, per Lord Nicholls). To avoid retroactively imposing a new legal obligation on
mortgagees in relation to existing mortgages, the House declined to apply this requirement to mortgages entered
into but not redeemed or concluded before the case was decided.

24 Prospective overruling poses its own problems, the main ones being that different events are treated
differently (yesterdays being subject to one precedentthe precedent which has been adjudged inferiorand
tomorrows to its replacement) and that, in its simplest form (whereby the courts ruling governs all materially
identical disputes arising immediately after, but not including, the case in which it was announced),
prospectivity deprives claimants of the benefit from the change to the law which they sought and secured. See
generally Juratowitch, Retroactivity and the Common Law, 199-218.
 12

to respond that retroactive judge-made law is acceptable because it is only ever a side-effect
rather than a goal of adjudication, for judges sometimes will seek to add to the content of the
common law so that it applies to the facts of a case in a way that it did not apply at the time
when the facts arose. There cannot be a problem if it is a mistake to say that judges make law.
But who would say this? The declaratory theorists depiction of modifications to precedent
not as law-making but rather as vindications25 of the already existing common law in
response to past judicial distortions is both well-known and has from long been disparaged. 26
The disparagement is understandable, for the distinguishing of precedent cannot really be
presented as anything other than the interstitial modification of the common law so that a new
rule-formulation is applied to events which occasioned it.27 There is, nevertheless, an element
to the declaratory theory which ought to be taken seriously.28 A judicial decision is a decision
about past events. But this does not mean that it must always alter the law with retroactive
effect. The court is responding to two parties seeking clarification as to what the law is as it
applies to their dispute; their expectation is not that the court makes new law but that it
demystifies something which is in fact already settled. Of course, parties who bear the brunt
of judicial decisions might object that the lack of clarity to the law means that they could not
have known what the legal consequences for their actions would be at the time that those
actions were taken. Being burdened by the consequences of a clarifying ruling, however, is
not the same as being burdened by the consequences of retroactive legislation, for the court is
seeking not to lay down new law but to render transparent or coherent an existingif
misread, or overlooked, or (because of, say, the incorporation of international treaty
obligations into national law) reconfiguredrule or doctrine. Overruling illustrates the
argument. Judges who overrule precedent could well be making ex post facto law. The
mistake is to think that this is what they must always be doing. When judges overrule
precedents, it could be that they are trying not to make new law but to show that what they
understand the law to be requires the abrogation of a legal authority. When, in 1992, the
House of Lords determined, contrary to its own ruling the previous year, that the words cash
equivalent in section 61 of the Finance Act 1976 meant equivalent as calculated in
accordance with marginal costs as opposed to total running costs, 29 it did not legislate from
the statute but rather, on the basis of what it had subsequently discovered in the legislative

25 See Blackstone, Commentaries on the Laws of England 1: 70.

26 There was a time when it was thought almost indecent to suggest that judges make lawthey only declare
it. Those with a taste for fairy tales seem to have thought that in some Aladdins cave there is hidden the
Common Law in all its splendour and that on a judges appointment there descends on him knowledge of the
magic words Open Sesame. Bad decisions are given when the judge had muddled the pass word and the wrong
door opens. But we do not believe in fairy tales any more. Lord Reid, The Judge as Law Maker, Journal of
the Society of Public Teachers of Law, n.s. 12 (1972): 22.

27 See Lord Mackay, Can Judges Change the Law?, Proceedings of the British Academy 73 (1987): 285,
287.

28 See John Finnis, Adjudication and Legal Change (1999), in his Collected Essays. Volume IV: Philosophy
of Law (Oxford: Oxford University Press, 2011), 399-403; also Finnis, Introduction, ibid., 13-14; and N. E.
Simmonds, Law as a Moral Idea (Oxford: Oxford University Press, 2007), 164-8.

29 Pepper (Inspector of Taxes) v. Hart [1993] A.C. 593 (decided Nov. 1992).
 13

history,30 it corrected its own wrong answer as to what the law actually was: in explicitly
Dworkinian terms, it did not invent rights retrospectively but rather discover[ed] the
taxpayers rights within the broader statutory scheme. 31 Those who resist this argument have a
point. Some instances of overruling cannotunless one adopts a version of the declaratory
theory which finds the declared law to have existed ab initio come what maybe explained
as anything other than judicial law-making. When, in the early 1990s, the House of Lords
abolished a husbands common law immunity against criminal liability for rape within
marriage it was determining that marital rape was an offense even though, at the time of the
defendants action, it was not an offense. 32 The right answer to the question, Can a man rape
his own wife? may be yes, but that was not, at this time (or at any earlier time), the answer
offered up by English law; even a hypothetical perfect judge would have had to rely not on
his or her knowledge of the law, but on moral reasons supporting a departure from the law, in
order to arrive at that answer. To try to explain all instances of overruling in terms of the
declaratory theory would be eccentric, to say the least. The claim advanced here is only that
not all such instances add up to judge-made law. It might, even with this proviso in mind, be
objected that to argue that a court which overrules precedent could be not making law but
rather settling on, or at least grappling towards, a right answer which is already immanent in
the law is to suggest that the law is some mystical entity, always-already out there (though
possibly hiding) and simply awaiting discovery by judges who take the trouble to look
carefully. But this would be to misrepresent the argument. A court which overrules a
precedent might be prompted to do so because of an obvious, and perhaps recent, change to
the law. The introduction of a controlling statute into a jurisdiction, for example, might
require judges to overrule some precedents when the opportunity arises because those
precedents depend on interpretations of legislation which are at variance with interpretive
obligations which the controlling statute now places on the courts; in the United Kingdom,
section 3 of the Human Rights Act 1998which obliges judges, so far as is possible, to
interpret primary and subordinate legislation in ways compatible with the ECHRis perhaps
the most obvious example. The court which overrules a precedent because it yields an
interpretation of impugned legislation which cannot satisfy s. 3 may be construing the plain
language of a statute so as to give it a meaning which would have come as a surprise to the
parliament that enacted it. Furthermore, the reinterpretation of the legislation might interfere
with vested rights.33 But the overruling court does not make retroactive law. It overrules,
rather, in accordance with the lawspecifically, in accordance with the interpretive
obligation placed upon it by the legislature.

30 a statement on the legislative record by the Financial Secretary to the Treasury Committee at the time that
the Finance Bill was going through parliament clearly indicating that, under s. 61, anyone in the appellants
circumstances should be taxed according to marginal cost.

31 Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 81. 160 N.
32 See R v. R [1991] 4 All E.R. 481; also Richard H. Tur, Time and Law, Oxford Journal of Legal Studies
463 (2002): 463.

33 See Re S (Care Order: Implementation of Care Plan) [2001] U.K.H.L. 10 at [37] (Lord Nicholls).
 14

The position regarding conviction under ex post facto laws and the validity of such laws is
different in India and America. Both the countries are against the conviction under the ex post
facto laws but America struck down such laws whereas in Indian validity of such laws cannot
be challenged. Articles 281(1) of the Constitution of Indonesia protect a person to not to be
tried under a law with retrospective effect. The clause of the Article explicitly says that
Human rights cannot be prohibited under any circumstances. The Constitution clearly
regards Human Rights as an essential ground so that a human cannot be tried against an
arbitrary ex-post facto laws. In the Supreme Court of the United States, in the case of Calder
v Bull8 , the concept of Expost Facto was discussed for the first time and concluded that it
was used in technical sense in order to accept on retroactive criminal or penal laws. Apart
from the striking down of the ex post facto laws for the protection of the human rights,
sometimes they are validated in order to develop the society. One current U.S. law that has a
retrospective effect is the Adam Walsh Child Protection and Safety Act of 2006. This law
imposes new registration requirements on convicted sex offenders and also applies to
offenders whose crimes were committed before the law was enacted. 34 Therefore all the
retrospective laws are not struck down. The striking down of the retrospective laws is based
upon the human conditions and conditions prevailing in the society. Australia has no strong
constitutional prohibition on ex post facto laws, although narrowly retroactive laws might
violate the constitutional separation of powers principle. 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 offence. It does however permit application of either domestic or
international law. The Constitution of Japan also prohibits the retroactive application of law.
Article 6 of Criminal Code of Japan says that the lightest punishments should be given for the
acts committed prior to the enforcement of the Act. The implication of this article is that a
person can be tried against an ex post facto law if the later law provides less punishment than
the former. The Ex-Post Facto law in India is mention in Article 20(1). The Article does not
explicitly talks mentions the word ex post facto but the essence is same. The Articles is
available to all, it is not restricted only to the citizens. Article 20(1) of the Constitution of
India, 1950 is as follows: No person shall be convicted of any offence except for violation of
the 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 the definition deals with Ex-
Post Facto laws. The insertion of the word penalty direct towards the criminal offences
only. Alternatively it does not include civil liabilities. As held in the case of Hatisingh Mfg.
Co. v. Union of India35, it was held that the Article 20(1) does not bar civil liability being
imposed retrospectively. With the same analogy, the court held that tax can be imposed
retrospectively. The creation of new offences by the new Act or any later Act, enhances the
34 Library of Congress text of H.R.4472. Published By :Universal Multidisciplinary Research Institute Pvt Ltd
143 South -Asian Journal of Multidisciplinary Studies: ISSN:2349-7858 Volume 2 Issue 4 (SJIF:2.246) courts
normally interpret statutes with a strong presumption that they do not apply retroactively.

35 Hatisingh Mfg. Co. v. Union of India 1960 AIR 923. Published By :Universal Multidisciplinary Research
Institute Pvt Ltd 144 South -Asian Journal of Multidisciplinary Studies: ISSN:2349-7858 Volume 2 Issue 4
(SJIF:2.246) offence before the enactment of the later law.
 15

punishment for the offence, then no person can be convicted under such an ex post facto
laws nor can the enhanced punishment prescribed in the later Act apply to any person who
had committed the 11 The common principle behind ex post facto law is individual liberty,
individual consciousness, human rights et cetera. Through the application of this principle
and the second aspect of the judgment id est, nor can the enhanced punishment later law,
for the protection of the human rights it can be concluded that if the later law provide less
quantum of punishment than the former one, then later Act should be applied. The same is the
situation in India; a punishment of 6 months imprisonment and fine was imposed on a 16 year
old boy on 31-5-1962. The Probation of Offenders Act came into force on 1-9-1962. An
appeal was filed in Supreme Court contending that the boy should be given benefit of the Act.
The court gave judgment in the favour of the boy reasoning 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 will 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.36 The Article 20(1) also takes into account that only that penalty can be
imposed which is in force at the time of commission of the offence. The higher penalty
cannot be imposed by another law after the commission of the offence but the Article gives
the way to the laws to be applied retroactively which decreases the rigorousness of the
punishment.37 In the Indian context 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 can take the
benefit of a retrospective law as observed in Rattan Lal v. State of Punjab. 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 expost-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.38 Articles 20, 21 and 22 of the Constitution of India ensure right to life and individual
freedom. These procurements guarantee security to subjects from self-assertive activities of
the State. It has likewise been given that State ought to make moves to guarantee that subjects
ought to have the capacity to lead a significant life.16 The essence of protection against ex
post facto laws is that an offence cannot be created and a person can be convicted only if s/he
violates law in force. Judiciary cannot create an offence not created by statute. This legal
axiom is based on the principle that no criminal law can be made retrospective, that is, for an
act to become an offence. The sine qua non is that it ought to associate offence lawfully
within the law books at the time of committing it. On the close analysis of Article 20(1), it

36 Rattan Lal v. State of Punjab, 1965 AIR 444, 1964 SCR (7) 676.
37 Sawant Singh v. State of Punjab, 1960 AIR 266.
38 Kanaiyalal v. Indumati, AIR 1958 SC 444: 1958 SCR 1394
 16

talks about the right not to be convicted of any offence except for violation of a law in force
at the time of the commission. Since conviction cannot but be by a judicial authority, it is
clear that the addressee of the right under Art. 20(1) is the judiciary. 39 On the other hand,
Article 21 of the Constitution ensures citizens right to a life with dignity. It declares that no
citizen can be denied his life and liberty except the procedure established by the law. It
guarantees protection against the executive40 and legislature actions. 41 With this observation
it can be concluded that both the Articles, Article 20(1) and Article 21 aims at the protection
of human rights but Article 21 leaves wider scope for this purpose as compare to Article
20(1). The Indian Legal system is very serious for the enforcement of Article 20 because even
during the period of emergency, the Constitution (Forty Forth Amendment) Act, 1978 makes
the enforcement of the Article possible. The Amendment Act amended Article 359 of the
Constitution of India, 1950. Previously, a presidential order under Article 359(1) could
suspend the enforcement of any of the Fundamental Rights mentioned in Part III of the
Constitution. The 44th Amendment Act had made it impermissible to suspend the 16. Article
20(1) protects the individual against ex post facto laws and double jeopardy. The exemption
of Article 20 means that even during operation of proclamation under Article 352, an
aggrieved individual have right to move to the Supreme Court or a High Court to challenge a
law or a executive order on the ground that Fundamental Rights in Article 20 have been
contravened.42 Most of the legal systems of different countries do not take into account the
application ex post facto laws in civil cases. Suppose if two parties enters into the contract
with free consent and later a legislature has been passed which abrogates the contract, then
ultimately the parties are suffering and hence ex post facto law is coming into the play.
Another example is that if two parties enter into a contract according to which the
considerations have to be paid in terms of gold. Later a law has been passed which declares
that in all the contracts, consideration must be paid in terms of cash. Then it is also affected
by ex post facto laws and it is ultimately the parties will have to suffer. If application against
ex post a\facto laws can be applied only in criminal case, not in civil cases, is based upon the
intensity of the punishment to the wrongdoer, then in both the cases, it is ultimately the
person who have to suffer and the extent or the intensity of suffering might be same. The
person committing criminal wrong get imprisonment in most of the cases but during colonial
period, incarceration was prevalent as a punishment for civil wrong too. Every ex post facto
law is a retrospective law.43 With this analogy, Article 23 of the Constitution of New
Hampshire says that: [Art.] 23. [Retrospective Laws Prohibited.] Retrospective laws are
39 https://indconlawphil.wordpress.com/tag/judiciary-as-state/.
40 A K Gopalan v. State of Madras, 1950 SCR 88.
41 Basu, Durga Das (2003). Shorter Constitution of India (13th ed.). Nagpur: Wadhwa & Co, Pg 268.
Published By :Universal Multidisciplinary Research Institute Pvt Ltd 146 South -Asian Journal of
Multidisciplinary Studies: ISSN:2349-7858 Volume 2 Issue 4 (SJIF:2.246) enforcement of the rights conferred
by Article 20 during emergency.

42 http://www.legalpoint.in/right_to_life_and_personal_liberty.php.
43 A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the
American Union, 3rd edition, Pg 256. Published By :Universal Multidisciplinary Research Institute Pvt Ltd 147
South -Asian Journal of Multidisciplinary Studies: ISSN:2349-7858 Volume 2 Issue 4 (SJIF:2.246)
 17

highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for
the decision of civil causes, or the punishment of offenses. The Articles clearly shows its
intention to safeguard human being against the effects of such kind of law which may affect
the human dignity. It also opens the gates for laws in civil cases which are highly
detrimental, draconian and inequitable. In the case of Calder v. Bull, the Supreme Court of
United States created four categories of unconstitutional ex post facto laws which are as
follows:

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. There is flaw in the first, second and third category because sometimes
the court should also look at the graveness of the offence (or wrong) before adjourning the
matter on the ground of ex post facto law as it taking only criminal matters into
consideration, not civil matters.
 18

CHAPTER 4
CONCLUSION
Laws cannot be retroactive if they seem to impose any penalty or .punishment. The statement
clearly concludes that the ultimate purpose behind the passing of the retroactive legislation is
for the protection of human rights. The main purpose of law is to regulate human conduct in
the society. In order to meet this goal, laws also say that the acts done which are prohibited by
the law are punishable because its purpose of redress the sufferer who had suffered because
of violation of his rights. Drawing the same analogy, if the acts committed is wrong but if its
not in mentioned the law, it is not wrong at all. If the person is charged for that wrongs, then
Ex-post Facto laws come into play to protect the rights of that person. The differentiation
between the permissible retrospective laws and non-permissible retrospective laws is not
advocated by any precedent. Non permissible retrospective laws have considered to arbitrary
interferences with the vested rights as unreasonable imposition of duties and the obligation
on the basis of past events. The major provision dealing with the ex post facto laws to
safeguard the interest of community is not completely perfect. The provisions dealing with ex
post facto laws in many countries have given priority to criminal cases only. But the suffering
of the accused in both is more or less, nearly same and thereby it affects individual
consciousness. The courts refuse to adjudicate the cases dealing with the ex post facto laws
against civil cases. Law is the expression of the will of the people. Its indirect implementation
is that the concrete of the laws is desired by the society. Sometimes even there are some acts,
when committed cannot be harshly punished because law does not allow it to be punished
harshly. Morally the act is wrong for which harsh punishment should be given because the
society says so. Its implication in ex post facto law is that sometimes the law should be
applied according to need of the society and the effect of the wrong, id est retrospectively
even though it may be legally unjust but, not morally. Therefore, provisions dealing with ex
post facto needs to be more comprehensive to deal with the different circumstances.
19
 20

BIBLIOGRAPHY

BOOKS REFERRED:

V.N Shukla, Constitution of India, (12 th Edition), Eastern Book Publication, Lucknow,
2014

Dr. J.N Pandey, Constitutional Law of India,(51st Edition), Central Law Agency,
Allahabad,2015

M.P Jain, Indian Constitutional Law, (7th Edition), Lexis Nexis Butterworths Wadhwa,
Nagpur, 2014.

Subhash C. Kashyap, Our Constitution: An introduction to Indias Constitution and

Constitutional Law, (7th Edition), National Book Trust, India, 1994.

WEBSITED REFERRED:

http://www.legalpoint.in/right_to_life_and_personal_liberty.php.

https://indconlawphil.wordpress.com/tag/judiciary-as-state/.