Introduction
An ex-post-facto law (a Latin term means "after the fact") or retrospective law is a law that imposes penalties retrospectively, i.e. on the act which has already been done or which increases the penalty for the past acts.[1]
If we talk about criminal law, it may criminalize acts that were legal or at the time of their commission or it may aggravate a crime which makes it more severe than it was when committed. Also, it may alter or increase the punishment for a crime or it may change the rules of evidence so that it would be easy to make a conviction. It may also act as an amnesty law, which decriminalizes certain acts or reduce possible punishments.
Position of Ex-Post-Facto laws in India
Article 20(1) of the Indian Constitution[2] clearly states that "no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which has been inflicted under the law in force at the time of the commission of the offense."
It
prohibits making of ex post facto criminal legislations in two situations, where
a)
To make an act crime for the first time and then give it
retrospective effect.
b) To increase the penalty of a crime and then give it retrospective effect.
Role of Supreme Court vis-a-vis Ex-Post-Facto law
The
Supreme Court
of India has played a vital role in deciding,
exploring as well in interpreting this doctrine. Besides this, our apex court
has also dealt with the questions regarding the implementation of such laws.
In the case of R.S. Joshi v. Ajit Mills,[3] the Court held that Article 20(1) relates to the constitutional protection given to the accused before a criminal court. This immunity provided by the constitution extends only against punishments by courts of a criminal offence under an ex post facto law, and cannot be claimed against any preventive detention or demanding some kind of security from a press under a press law, for acts done before the new law is passed. Similarly in the case of M.P.V. Sundararamier & Co. v. State of Andhra Pradesh,[4] it was held that a tax can be imposed retrospectively and it cannot be prohibited by ex post facto laws as it only prohibits criminal legislations.
Some countries allow ex post
facto criminal legislations in a case wherein the retrospective application benefits
the accused person. The same was held in the case of Rattan Lal v. State of Punjab,[5]
where the apex court observed that
"an ex post facto law which only alleviates the severity of a criminal
act does not fall within the prohibition of ex post facto law prescribes by
Article 20(1) if a law makes provision to that effect though retrospective in
nature, it will be valid".
Thus the court laid down the rule of beneficial construction required that an ex post facto law could be applied only to mollify the punishment.
Conclusion
The
right to protection from retrospective criminal law is well-recognized law
throughout the global community. The Universal Declaration
of Human Rights and International Covenant on Civil & Political Rights
provide for the protection against such laws.
In
India, we are granted this protection under Article 20(1) of the
constitution and the credit goes to the makers
of our constitution who were far-sighted enough while
drafting the constitution.
A place of
pride should be given to India's judiciary as well
which plays a vital role in interpreting our constitution justly and securing
people against such potential maltreatment of this doctrine.
By- Vikash Kumar, 1st year law student from Banaras Hindu University, Uttar Pradesh and he is pursuing B.A.LL.B.
REFERENCE:
[1] CORWIN, The Constitution and What It Means Today, New York, Clarity Publication (1958)
[2] INDIA CONST. art.20 cl.1.
[3] R.S. Joshi v. Ajit Mills AIR
1977 SC 2279.
[4] M.P.V. Sundararamier & Co.
v. State of Andhra Pradesh AIR 1958 SC 468.
[5] Rattan Lal v. State of Punjab AIR 1965 SC 444.
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