PROTECTION AGAINST EX POST FACTO LAWS
Faculty of CG-1
B.A., L.L.B (Hons.)
Submitted on 11th August, 2014 word count :2968
NATIONAL LAW UNIVERSITY, JODHPUR
On the completion of this project I find that there are many persons to whom I would like to express my gratitude, since without their help and co-operation the success of this educative endeavour would not have been possible.
I take this opportunity to express my sincere gratitude to my teacher Ms Aakanksha Kumar, Faculty of Constitutional Governance, who has been a constant source of encouragement and guidance throughout the course of this work.
Subject : Constitutional Governance Topic : Protection against ex post facto laws
The data collected by me in this project is of secondary nature. The data has been collected through books,journals,legal databases and websites.
SCOPE OF THE PROJECT
This Project aims to look at India's standpoint on ex post facto laws and analyze various case laws on the same.
TABLE OF CONTENTS
ACKNOWLEDGEMENT............................................................................................. ii RESEARCH METHODOLOGY................................................................................... iii SCOPE OF THE PROJECT........................................................................................ iv TABLE OF CONTENTS............................................................................................. v INTRODUCTION...................................................................................................... 1 CONSTITUTIONAL PROVISION ON EX POST FACTO LAWS : ARTICLE 20 (1).............2 ANALYZING THE NATURE AND SCOPE OF ARTICLE 20(1)........................................3 THE MARCH OF LAW PERTAINING TO EX POST FACTO LAWS:ANALYZING VARIOUS CASE LAWS............................................................................................................ 4 Shiv Bahadur v. State of Vindhya Pradesh..........................................................4 Kedar Nath Bajoria AND Hari Ram Vaid v. The State of West Bengal..................6 Hathising Mfg. Co. and Anr. v. Union of India and Ors.........................................8 CONCLUSION....................................................................................................... 10 BIBLIOGRAPHY...................................................................................................... vi
Ex post facto(Latin, "after the fact") laws are those laws which make illegal an act, which was legal when the act was committed, which increases the penalty for an infraction after it has been committed or alters the rules of evidence facilitating easier conviction. Ex post facto laws are often confused with retrospective laws, but there exists a distinct difference between them. Every ex post facto law must necessarily be retrospective, but every retrospective law is not ex post facto in nature. Any law which takes away or impairs the rights vested by existing laws is said to be retrospective and is generally unfair and oppressive. There is a good general rule that a law should have no retrospect; but there are cases in which law may justly relate to a time antecedent to their commencement; as statutes of oblivious or of pardon.1But any law within the prohibition, that mollifies the rigour of the criminal law is not considered as ex post facto.Only laws which seek to create or aggravate the crime or increase the punishment or change the rule of evidence enabling easier conviction, fall under the purview of ex post facto laws. The expression ex post facto is technical; they have been in use long before the revolution, and had acquired an appropriate meaning, be legislators, lawyers and authors.2 According to COOLEY3,every law which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right for something which when done was lawful or every law which deprives persons accused of crime of some lawful protection to which they have become entitled is termed as ex post facto.
1 D.D Basu, Commentary on the Constitution of India,8th Ed.,p.2947,para.2 2 Calder v. Bull, (1798) 3 Dall 386 3 COOLEY,CONSTITUTIONAL LAW,p.357 1
CONSTITUTIONAL PROVISION ON EX POST FACTO LAWS : ARTICLE 20 (1)
A sovereign legislature has the power to enact prospective as well as retrospective laws, as in provided in Article 245 of the Indian constitution, but Article 20(1) sets two limitations upon the law making power of every legislature authority in India as regard to retrospective criminal legislation. 4 ARTICLE 20 (1) provides :- " No person shall be convicted of any offence except for violation of a 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"
Therefore, it prohibits : The making of ex post facto criminal laws. The infliction of a penalty greater than that which might have been inflicted under the law which was in force when the act was committed.
4 D.D Basu, Commentary on the Constitution of India,8th Ed.,p.2947,para. 2
ANALYZING THE NATURE AND SCOPE OF ARTICLE 20(1)
What is prohibited under Cl. (1) is only conviction or sentence under the ex post facto law and not the trial thereof. Hence, trial under a procedure different from what was present at the time of the commission of the offence or by a court different from that which had competence at that time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental rights may be involved.5 The prohibition under Article 20(1) is applicable in respect of substantive law inflicting conviction and sentence and it does not apply to the procedural law. A change in the courts which are entitled to try the offence or change the rule of evidence would not be affected by the prohibition of the Article.6 Just as a person accused of the commission of an offence has no right to trial by a particular court or to a particular procedure, the prosecutor has no right to insist upon that the accused be subjected to an enhanced punishment under a repealed Act.7 Hence it has been held that Article 20(1) does not prohibit a law from retrospectively changing:8 the place of trial;9 the mode of execution or carrying out of the sentence,10 or mollifying the rigours of a criminal law.11 5 Hathising Mfg. Co. v. Union of India, AIR 1960 SC 923(932) 6 Sajjan Singh v. State of Punjab, AIR 1964 SC 464 7 T. Barai v. Henry Ah Hoe, AIR 1983 SC 150 8 State of UP v. Shiv Bahadur, AIR 1951 UP 17 9 Thompson v. Utah, (1898) 170 US 343 10 Public Prosecutor v. Ayyappan, AIR 1953 Mad 337 11 Rattan Lal v. State of Punjab, AIR 1965 SC 444 3
THE MARCH OF LAW PERTAINING TO EX POST FACTO LAWS:ANALYZING VARIOUS CASE LAWS
Shiv Bahadur v. State of Vindhya Pradesh12 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.
12 Shiv Bahadur Singh Rao v. State of Vindhya Pradesh, AIR 1953 SC 394 5
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.
Kedar Nath Bajoria AND Hari Ram Vaid v. The State of West Bengal13
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 13 Kedar Nath v. State of West Bengal, AIR 1953 SC 404 7
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.
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 14 Hathising Mfg. Co. v. Union of India, AIR 1960 SC 923 9
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.
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 couldn’t have reasonably or by any other method come to know that the act would become illegal in the future. Thus criminal laws with retrospective effect are totally absurd, 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.
Arvind.P.Datar,"Commentry on The Constitution of India" Ed. 2nd, Lexis Nexis Butterworth Wadhwa, Nagpur 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.
P.K. Mujumdar & R.P.Kataria, “Commentary on Constitution of India”, Vol.1, Ed. 10th, Orient Publishing Co.
V.N. Shukla, “The Constitution of India”, Ed.11th Eastern Book Company.
CASE LAWS :
Hathising Mfg. Co. v. Union of India, AIR 1960 SC 923 (932)
Sajjan Singh v. State of Punjab, AIR 1964 SC 464
T.Barai v. Henry Ah Hoe, AIR 1983 SC 150
Thompson v. Utah, (1898) 170 US 343
State of U.P. v. Shiv Bahadur, AIR 1951 UP 17
Public Prosecutor v. Ayyappan, AIR 1953 Mad 337
Rattan Lal v. State of Punjab, AIR 1965 SC 444
Shiv Bahadur Singh Rao v. State of Vindhya Pradesh, AIR 1953 SC 394
Kedar Nath v. State of West Bengal, AIR 1953 SC 404