1.

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when a law repeals a previous law, the repealed legislation no longer applies to the situations
it once did, even if such situations arose before the law was repealed.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.

1
Corwin (1958), The Constitution and What It Means Today,
2
James Kent (1860), Commentaries on American Law
3
David C.Brody (2000), Criminal Law
 2. EX POST FACTO LAW IN FOREIGN

A. U.S Constitution:

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.
Constitutions 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.4

In Calder v. Bull5, 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.6

B. Position in UK:

4
U.S Constitution
5
3 U.S. (1 Dall.) 386, 390 (1798)
6
Ashran Jen (2004), Stogner V. Califirnia:
 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.7

3. POSITION IN 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.8
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.9 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.

7
http://www.parliament.uk/archives/ accessed on 2007-10-10.
8
Kanaiyalal v. Indumati, AIR 1958 SC 444: 1958 SCR 1394.
9
Wealth Tax Commr. Amritsar v. Suresh Seth, AIR 1981SC 1106: (1981) 2SCC 790.
 4. 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 Punjab10 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.11

10
AIR 1960 SC 266: (1960) 2 SCR 89
11
Maya Rani v. I.T. Commr.Delhi, AIR 1986 SC 293
 mposing 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.12 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.13 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. If a particular makes a provision to that effect, though retrospective
in operation, it will be valid.

5. 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.14 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.

12
AIR 1984 SC 1194.
13
AIR 1965 SC 444
14
AIR 1977 SC 2279
 Similarly, a tax can be imposed retrospectively. Imposing retrospectively special rates for
unauthorized use of canal water is not hit by Art. 20(1).15

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).16 A change in court entitled to try an
offence is not hit by Art. 20(1). 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
Punjab17 vis--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 trialwhen 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.

15
Jawala Ram v. Pepsu, AIR 1962 SC 1246.
16
Union of India v.Sukumar, AIR 1966 SC 1206.
17
AIR 1964 SC 464
 A person can be convicted and punished under a law in force which means a law
factually in existence at the time the offence was committed. A law not factually in
existence at the time, enacted subsequently, but by a legislative declaration deemed to
have become operative from an earlier date, cannot be considered to be a law factually
in force earlier than the date of its enactment and the infirmity applying to an ex-post-
facto law applies to it, the reason is that if such a fiction were accepted, and a law passed
later were to be treated as a law in existence earlier, then the whole purpose of the
protection against an ex-post-facto law would be frustrated, for a legislature could then
give a retrospective operation to any law.

A 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.18

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.19

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

18
Chief Inspector of Mines v. Karam Chand Thapra, AIR 1961 SC 838.
19
T.Barai v. Henry Ah Hoe, AIR 1983 SC 150.
 interpret a law in such a manner that any objection against it of retrospective operation
may be removed.20

6. ANALYZING VARIOUS CASES

(A) Shiv Bahadur v. State of Vindhya Pradesh

Appellant : Shiv Bahadur Singh Rao

Respondent : State of Vindhya Pradesh

Judgment : Bhagwati,J

Facts : The appellant was convicted of forging official documents which enabled the then
closed 'panna diamond mining syndicate' to resume its operations, in return of which he was
paid a bribe of Rs. 25,000 by Nagindas Mehta of the firm on 4-11-1949 at the constitution
house New Delhi. The forgeries were backdated to the period when he had been minister in
the then state of Vindhya Pradesh (before it was merged with Madhya Pradesh in 1956).
Neither the fact of the bribe nor the forgery were contested in several subsequent appeals.

In the legal trial, he was initially acquitted by a Special court, but the state appealed to the
Judicial Commissioner (predecessor to the present High court system) where he was found
guilty under articles relating to forgery, criminal conspiracy, and "illegal gratification by a
public servant". He was sentenced to rigorous imprisonment for three years, while a
bureaucrat who connived in the operation was sentenced for one year. In 1953, he appealed
this judgement to the Supreme Court. The stand of the appellant was that the charges against
him in terms, refer to the offences committed as having been under the various sections of the
Indian Penal Code as adapted in the United States of Vindhya Pradesh by Ordinance No.
XLVIII of 1949. This Ordinance was passed on 11th September, 1949, while the offences
themselves are said to have been committed in the months of February, March and April,
1949, i.e., months prior to the Ordinance. It is urged therefore that the convictions in this case
which were after the Constitution came into force are in respect of an ex post facto law
creating offences after the commission of the acts charged as such offences and hence
unconstitutional.

20
Sardar Gyan Singh v. State of Bihar, AIR 1975 Pat.69.
Judgement : The Honourable Supreme Court of India did not uphold the appellants case on
the grounds that the Vindhya Pradesh Ordinance XLVIII of 1949, though enacted on 11th
September, 1949, i.e., after the alleged offences were committed, was in terms made
retrospective by section 2 of the said Ordinance which says that the Act "shall be deemed to
have been in force in Vindhya Pradesh from the 9th day of August, 1948," a date long prior
to the date of commission of the offences. It was accordingly suggested that since such a law
at the time when it was passed was a valid law and since this law had the effect of bringing
this Ordinance into force from 9th August, 1949, it cannot be said that the convictions are not
in respect of "a law in force" at the time when the offences were committed.

RATIO DECIDENDI : The criminal law relating to the offences charged against the
appellants at the time of their commission was substantially the same as that which obtained
at the time of the convictions and sentences by the appellate court.

(B) Kedar Nath Bajoria AND Hari Ram Vaid v. The State of West Bengal

Appellant : Kedar Nath Bajoria, Hari Ram Vaid

Respondent : State of West Bengal

Judgement : Patanjali Sastri, C.J.

Facts : The Appellant was the proprietor of the firm of Kedar Nath Mohanlal, Managing
Agents of Shiva Jute Press Ltd., an incorporated company having a number of godowns at
Cossipore in West Bengal. Some of the godowns belonging to the company were
requisitioned by the Government for military purposes in 1943 and were released in
December, 1945. The appellants ,were charged, with having conspired to cheat, and having
cheated, the Government by inducing their officers to pay Rs. 47,550 to the first appellant on
behalf of the company as compensation for alleged damage to the godowns on the basis of an
assessment made by the second appellant which was false to the knowledge of both the
appellants. T he appellants were accordingly charged with having committed offences under
sections 120B and 420 of the Indian Penal Code and section 5(2) of the Prevention of
Corruption Act (Act No. II of 1947). The West Bengal Criminal Law Amendment Act
(hereinafter referred to as "the Act") came into force on June 23, 1949 and, by notification
No. 5141-J dated September 16, 1949, the West Bengal Government allotted the case against
the appellants and two others to the Special Court constituted by the Government under
section 3 of the Act. On August 29, 1950, the Special Judge delivered judgment convicting
the appellants on all the counts and sentenced them to varying terms of rigorous
imprisonment and fine. In addition to the sentences imposed under the ordinary law the first
appellant was fined Rs. 50,000 including the sum of Rs. 47,550 received by him, as required
by section 9(1) of the Act. The appellant argued that, As regards the fine of Rs. 50,000,
inflicted on him , it could not stand to the extent of Rs. 47,550 found to have been received
by the first appellant by the commission of the offence, as it is in contravention of article 20
of the Constitution which provides, inter alia, that no person shall 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 offences for which the first appellant has been convicted
were all committed in 1947, whereas the Act which authorised additional punishment by way
of fine equivalent to the amount of money came into force in June, 1949. It was urged that
article on its true construction prohibits the imposition of such fine even in cases where the
prosecution was pending at the commencement of the Constitution.

JUDGEMENT : The majority judgement in this case was that, the fine of Rs.50,000 was not
unconstitutional and did not violate Article 20 (1) but however the major part of this
judgement is the dissenting judgement by justice Vivian Bose. According to him, On the
question of punishment also there is discrimination but that is severable and would in any
event be covered by article 20.He dissented by saying that the impugned Act does not fall
foul of the Constitution inspite of being aware that this Act has been repealed and so cannot
be used again.This was because he was apprehensive of other Acts being framed along the
same lines at some future date because of the decision in this case.

In his view, the convictions cannot be upheld and there should be a retrial.
 (C) Hathising Mfg. Co. and Anr. v. Union of India and Ors.14

Petitioner : Hathising Mfg. Co. and Anr.

Respondent : Union of India and Ors.

Judgement : Shah,J.

Facts : Petition No. 88 of 1957 is by a company manufacturing cotton textiles in the town
of Ahmedabad. The machinery in the factory of the company was installed in the year
1893 and has not been replaced thereafter. The petitioner claimed that the factory had
become, by the passage of time, an uneconomic unit and was closed on that account on
27 April 1957. The company was incurring losses year after year and early in the year
1956, the Registrar of Companies, Bombay, requested the Central Government to
authorise him to wind up the company. This authority was not given and the factory
continued to work till April 28, 1957, on which date it was closed after notice of closure
given in March, 1957. By his petition the petitioner impunges the validity s. 25FFF(1) of
the Industrial Disputes Act, 1947, which requires him to pay compensation on closure of
the undertakings, which he claims were due to circumstances beyond his control. The
President of India on April 27, 1957, promulgated Ordinance No. IV of 1957, which
amended Ch. VA of the Industrial Disputes Act, 1947. By this Ordinance, provision was
made for payment with retrospective effect from December 1, 1956, of compensation to
workmen on termination of employment upon transfer or closure of an industrial
undertaking. This Ordinance was later replaced with certain modifications by Act 18 of
1957 which came into force on June 6, 1957, but with retrospective effect from
November 28, 1956.The provision for awarding compensation for termination of
employment on closure of an industrial undertaking is challenged in the petitions on the
ground that contrary to Art. 20 of the Constitution, it penalises acts which when
committed were not offences.
JUDGEMENT : The Honourable Supreme court of India held that for reasons already
set out, payment of compensation and wages in lieu of notice under the impugned section
are not made conditions precedent to effective termination of employment. The section
only creates a right in the employees; it does not enjoin the employers to do anything
before closure. Section 31(2) of the Act which imposes penal liability for contravention of
the provisions of the Act can therefore have no application to failure to make payment of
compensation and wages for the period of notice under s. 25FFF(1). The amending Act
was, it is true, passed in June, 1957, and liability to pay compensation arises in respect of
all undertakings closed on or after November 26, 1956. But, if liability to pay
compensation is not a condition precedent to closure, by failing to discharge the liability
to pay compensation and wages in lieu of notice, the employer does not contravene s.
25FFF(1). A statute may prohibit or command an act and in either case, disobedience
thereof will amount to contravention of the statute. If the statute fixed criminal liability
for contravention of the prohibition or the command which is made applicable to
transactions which have taken place before the date of its enactment the protection of Art.
20(1) may be attracted. But s. 25FFF(1) imposes neither a prohibition nor a command.
Under s. 25F, there is a distinct prohibition against an employer against retrenching
employees without fulfilling certain conditions. Similar prohibitions are found in Sections
22 and 23 of the Act. If this prohibition is infringed, evidently, criminal liability may
arise. But there being no prohibition against closure of business without payment of
compensation, s. 31(2) does not apply. By s. 33(c), liability to pay compensation may be
enforced by coercive process, but that again does not amount to infringement of Art.
20(1) of the Constitution. Undoubtedly for failure to discharge liability to pay
compensation, a person may be imprisoned, under the statute providing for recovery of
the amount, e.g., the Bombay Land Revenue Code, but failure to discharge a civil liability
is not unless the statute expressly so provides, an offence. The protection of Art. 20(1)
avails only against punishment for an act which is treated as an offence, which when done
was not an offence.

RATIO DECIDENDI : The protection of Art. 20(1) avails only against punishment for
an act which is treated as an offence, which when done was not an offence.
 7. CONCLUSION

The right to protection from retrospective criminal law is well recognized in our
community. Yet there are many examples, in communities which claim to espouse this
right as being fundamental, where retroactive criminal laws have been made. Fortunately
the Indian constitution protects us from ex post facto laws.

Article 20(1) is truly a blessing to all of us. An act done innocently by a person in the
past, which is illegal in the present, the state cannot prosecute the person as it is against
the principle of natural justice because the individual when committing the act couldnt
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, oppressive,
unfair and unjust. Having criminal laws with retrospective effect is against the right to life
because when the person commits a certain act and later on, that act becomes a crime then
that person would be held liable even though he committed the act innocently. So
punishing a person who has committed an act innocently goes against right to life.

BIBILOGRAPHY

Arvind.P.Datar,"Commentry on The Constitution of India" Ed. 2nd, Lexis Nexis

Butterworth Wadhwa, Nagp
M.P. Jain, Indian Constitutional Law, Ed.2003 (Reprint 2008) Lexis Nexis
Butterworth Wadhwa, Nagpur.
D.D. Basu, Commentary on The Constitution of India Ed. 8th, Lexis Nexis
Butterworth Wadhwa, Nagpur.
http://www.legalserviceindia.com/article/l293-Ex-Post-Facto-Laws-and-Indian-
Legal-Scenario.html
https://en.wikipedia.org/wiki/Ex_post_facto_law#India