1

ANALYSIS OF EX POST FACTO LAW

Submitted to: Prof. K.K Dwivedi

(Faculty: Constitutional Law)

Submitted by: Pallavi

IIIrd year (5th Sems)
238

CHANAKYA NATIONAL LAW UNIVERSITY

ACKNOWLEDGEMENT

It gives us incredible pleasure to present a research work on ANALYSIS OF EX POST

FACTO LAW.
We would like to enlighten the readers regarding this topic and we hope we have tried our best to
pave the way for bringing more luminosity to this topic.

We are grateful to our faculty PROF. K.K Dwibedi, who has given us the idea and encouraged
us to venture this project.We would like to thank librarian of CNLU for his interest in providing
us a good material.

And finally yet importantly we would like to thank our parents for the financial support.

PALLAVI

RESEARCH METHODOLOGY

Aims and Objectives:

The aim of the project is to present a detailed study consent as defence in family law through general
principles, statutes ,decisions, statutes, amendments, suggestions and different writings and articles.

Scope and Limitations:

Though this is an immense project and pages can be written over the topic but because of certain
restrictions and limitations I was not able to deal with the topic in great detail.

Sources of Data:
The following secondary sources of data have been used in the project1. Articles

2. Books
3. Websites

Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.
The researchers have used doctrinal method in their research, that is, extensive use of literary sources and
materials. The researchers mainly used secondary sources to provide substance to the research analysis.
The researchers have also put down immense effort in order to understand the terms and concepts related
to the subject which enriched the study to a great extent.
In some case the researchers shall be bound to extract materials directly from the literary work of certain
authors which the researchers intend to adequately cite and notify in due course of time. The researchers

also intend to conduct the study on a more micro level in order to make the study more objective and
precise in relation to ANALYSIS OF EX POST FACTO LAW.

Mode of Citation: The researcher has followed a uniform mode of citation throughout the
course of this research paper.

CONTENTS

INTRODUCTION..06

PROTECTION AGAINST EX POST FACTO LAW........08

MEANING & SCOPE.....09

ARTICLE 20(1): FIRST PART......10

ARTICLE 20(1): SECOND PART.....13

VERDICTS FROM SUPREME COURT...15

CONCLUSION.......18

BIBLIOGRAPHY19

INTRODUCTION
An ex post facto law (from the Latin for "from after the action") or retroactive law, is a law that
retroactively changes the legal consequences (or status) of actions committed or 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)
retroactively.
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, particularly in European continental systems.
Generally speaking, ex post facto penal laws are seen as a violation of the rule of law as it applies
in a free and democratic society. Most common law jurisdictions do not permit retroactive
criminal legislation, though new precedent generally applies to events that occurred prior to the
judicial decision. Ex post facto laws are expressly forbidden by the United States Constitution. 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.
In India without using the expression "Ex post facto law" the underlying principle has been
adopted in the Article 20 (1) of the Indian Constitution in the following words:

"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 have been inflicted under the law in force at the time of commission of the offence."
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-postfacto law is in itself invalid, it is not so in India. The courts may also interpret a law in such a
manner that any objection against it of retrospective operation may be removed.
An ex post facto law, then, within the meaning of the constitutional prohibitions, is a law which
makes acts criminal which were not criminal when committed, or provides a more severe
punishment for criminal acts already committed, or changes the rules of procedure so as to make
it more difficult for the person accused of a crime already committed to defend in a prosecution
for such crime (Kring v. Missouri, and Cummings v. Missouri). No matter how reprehensible or
immoral an act may be when committed, if at that time it is not criminally punishable under the
law then existing it cannot subsequently be made punishable by statute; and no matter how
inadequate the punishment provided for an act already committed, the punishment cannot as to
that particular act be made made more severe by statute; and no matter how technical or
unreasonable the rules of evidence or the rules of procedure may be, by which one who has
committed a crime may be enabled to escape punishment, such defects in the law cannot as to
that particular criminal act be remedied by subsequent legislation. The whole theory of the
criminal law is that no one shall be punished thereunder unless in a clear case and in strict
compliance with the existing law; and on the whole such a policy is deemed to be promotive of
the general public welfare, although in particular cases it may facilitate the escape from
punishment of persons who plainly ought to be punished.

PROTECTION AGAINST EX POST FACTO LAW

Clause(1) of Article 20 of the Indian Constitution says that 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.
Article 20(1) imposes a limitation on the law making power of the legislature. Ordinarily, a
Legislature can make prospective as well as retrospective laws, but clause(1) of Article 20
prohibits the Legislature to make retrospective criminal laws. However, it does not prohibit
imposition of civil liability retrospectively, i.e, with effect from a past date.1
An ex post facto law is a law which imposes penalties retrospectively, i.e on acts already done
and increases the penalty for such acts. The American Constitution also contains a similar
provision prohibiting ex post facto law both by the Central and State Legislatures.
A person can be convicted and sentenced in respect of an offence under the law in force at the
time of commission of the offence an retrospective operation of law imposing penalty under Art.
20(1) of the Constitution. Article 20(1) is attracted only when the penal law penalizes, with
retrospective effect, an act which was not an offence when it has been committed. Where no new
offence has been created and the offence continued to be in existence by virtue of the General
Clauses Act, the provision of Art. 20(1) is not attracted and such offence shall be construed to be
an offence under the law in force within the meaning of Article 20(1).2
OFFENCE: Meaning of;
The term offence has not been defined in the Constitution of India. Article 367 of the
Constitution provides that the General Clauses Act 1897 shall apply for the interpretation of the
Constitution. The word offence in several clauses of Article 20 must be understood to convey
the meaning given to in Section 3(38) of the General Clauses Act. This section defines offence
to mean any act or omission made punishable by any law for the time being in force.

1
2

Hathi Singh Manufacturing Co. v. Union of India, AIR 1960 SC 923

Chief Inspector v. Thappar, 1962 (1) SCR 9; AIR 1961 SC 838

PENALTY: Meaning;
The term penalty has not been defined in the Constitution and it has been used in a narrow
sense in Article 20(1) of the Constitution meaning a payment which has to be made in pursuant
of an order of a Criminal Court finding a person guilty of a charge.
CHARTER OF HUMAN RIGHTS:
Article 11(2) of the Universal Declaration of Human Rights, 1948 provides that no one shall be
held guilty of any penal offence on account of any act or omission which did not constitute a
penal offence, under the national or international law, at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time when the criminal
offence was committed.
SAFEGUARD AGAINST THE EX POST FACTO LAW:
The moral objection to ex post facto law is not founded on constitutional pragmatics but on the
most fundamental demand of the rule of law that a person is subject only to established and
known law. Accordingly, Art 15(1) of the United Nations Covenant on Civil and Political Rights
(ICCPR) condemns laws that hold a person guilty of any criminal offence on account of any act
or omission, which did not constitute a criminal offence, at the time when it was committed or
impose a heavier penalty than the one that was applicable at the time when the criminal offence
was committed.
EX POST FACTO LAW: Meaning and Scope;
Wills in his Constitutional Law of the United States at page 516 brought out a lucid classification
of the penal law which are ex post facto:
(1) when they make criminal an act which was innocent when done
(2) when they make a crime greater than it was when it was committed
(3) when they make the punishment greater than the punishment was at the time the act was
committed
(4) when they change the rule of evidence as to deprive a defendant of a substantial right

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(5) when they make retrospective qualifications for an offence which are not a proper
exercise of the police power.
Thus, under Article 20(1) what is prohibited is the conviction and sentence in a criminal
proceedings under ex post facto law and the trial thereof.
ANALYSIS OF EX-POST-FACTO LAW
An ex-post-facto law is a law which imposes penalties retroactively, that is, upon acts already
done, or which increases the penalty for past acts.3 Suppose a person does an act in 1954 which is
not then unlawful. A law is passed in 1956 making that act a criminal offence and seeking to
punish that person for what he did in 1954.Or, suppose, punishment prescribed for an offence in
1954 is six months imprisonment, but the punishment for the same offence is increased in 1955
to imprisonment for a year, and is made applicable to the offences committed before 1955. These
are both examples of ex-post-facto laws. Such laws are regarded as inequitable and abhorrent to
the notions of justice and, therefore, there are constitutional safeguards against such laws.
ARTICLE 20(1) provides the necessary protection against an ex-post-facto law.
Article 20(1) has two parts. FIRST PART
Under the first part, no person is to be convicted of an offence except for violating a law in
force at the time of commission 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.4 An immunity is thus provided to a person from being tried from an act, under
a law enacted subsequently, which makes the act unlawful.5 This means that if an act is not an
offence on the date of its commission, a law enacted in future cannot make it so.6
This proposition is illustrated by the following fact situation.

3
4
5
6

Crown, THE CONSTITUTION AND WHAT IT MEANS TO-DAY, 78(1958)

Kanaiyalal v. Indumati, AIR 1958 SC 444
State of Maharashtra v. K.K Subramaniam Ramaswamy, AIR 1977 SC 2091
Soni Devrajbhai Babubhai v. State of Gujarat, AIR 1991 SC 2173

11

Section 304B, IPC, was enacted on 19-11-1986 making a dowry death punishable as an offence
under the Penal Code. A new offence has thus been inserted in the IPC with effect from 19-111986. Because of Art 20(1), Section 304B cannot be applied to a dowry death which took place
in 1984, i.e, prior to its enactment. Section 304B is a substantive provision creating a new
offence subsequent to the commission of the offence attributed to the respondent in the instant
case and so he could not be tried under section 304B.
The word offence used in Art. 20 is not defined in the Constitution. Section 3(38) of the
General Clauses Act defines offence as any act or omission made punishable by any law for the
time being in force.
Article 20 relates to the constitutional protection given to persons who are charged with 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.7
The immunity extends only against punishment by courts for a criminal offence under an expost-facto law, and cannot be claimed against preventive detention,8 or demanding a security
from a press under a press law,9 for acts done before the relevant law is passed.
Article 20(1) does not bar a civil liability being imposed retrospectively. An Act passed in June,
1957, imposed on the employers closing their undertakings a liability to pay compensation to
their employees since November 28, 1956. This liability could be enforced by coercive process
leading to imprisonment in case of failure to discharge it. The Supreme Court held that the
liability imposed by the law was a civil liability which was not an offence and so Article 20(1)
could not apply to the liability for the period November 28, 56 to June, 57.10
What is prohibited under Art. 20(1) is only conviction or sentence, but not trial, under an expost-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 at the time cannot ipso facto be held
7

R.S Joshi v. Ajit Mills Ltd., AIR 1977 SC 2279

Prahlad v. State of Bombay, AIR 1952 Bom 1
9
State of Bihar v. Shailabala, AIR 1952 SC 329
10
Hathising Mfg.Co. v. Union of India, AIR 1960 SC 923
8

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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.
Article 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).11 Similarly, rule of evidence can be made applicable to the trial
of an offence committed earlier.12
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 passed on September 30, but given an
operation from August 1, cannot be punished thereunder. A law not factually in existence at the
time, enacted subsequently, but by a legislative declaration deemed to have become operative
from an earlier date (by a fiction of law), cannot be considered to be a law factually in force
earlier than the date of its enactment and the infirmity applying to an ex-post-facto law applies to
it. The reason is that if such a fiction were accepted, and a law passed later were to be treated as
law in existence earlier, than 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.13
A slightly different situation is presented by the following fact-situation. A law was made in
1923, and certain rules were made thereunder. 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
commission of offence.14
When a later statute again 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 this 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 the same as in the earlier Act, i.e.,
11
12
13
14

Union of India v. Sukumar, AIR 1966 SC 1206

AIR 1964 SC 464: (1964) 4 SCR 630
Shiv Bahadur v. Vindhya Pradesh, AIR 1961 SC 583
Chief Inspector of Mines v. Karam Chand Thappar, AIR 1961 SC 838: (1962) 1 SCR 9

13

if the essential ingredients of the two offence 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.15
Further, what Article 20(1) prohibits is conviction and sentence under an ex post facto law for
acts done prior thereto, but not the enactment or validity of such a law. There is, thus, a
difference between the Indian and the American positions on this point. Whereas in America, an
ex post facto law is in itself invalid, it is not so in India. The courts may also interpret a law in
such a manner that any objection against it of retrospective operation may be removed.16
ARTICLE 20(1): SECOND PART
The second part of Article 20(1) immunizes a person from a penalty greater than what he might
have incurred at the time of his committing 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.17
The clause applies to punishment for criminal offences. X committed an offence in 1947 under
the Prevention of Corruption Act which then prescribed a punishment for imprisonment or fine
or both. In 1949, by an amendment of the law, the punishment was enhanced. The Supreme
Court held that the enhanced punishment could not be applicable to the offence committed in
1947 because of the prohibition contained in Article 20(1).18
The scope of Article 20(1) has been fully considered by a Constitution Bench of the Supreme
Court in K. Satwant Singh v. State of Punjab.19
According to Section 420 IPC, no minimum sentence of fine has been provided and under it an
unlimited fine can be imposed. In 1943, an ordinance laid down the minimum fine which a court
must compulsory inflict on a person convicted. The Supreme Court held that Article 20(1) was
15
16
17
18

19

T.Barai v. Henry Ah Hoe, AIR 1983 SC 150

Sardar Gyan Singh v. State of Bihar, AIR 1975 Pat. 69
Wealth Tax Commr, Amritsar v. Suresh Seth, AIR 1981 SC 1106
Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404
AIR 1960 SC 266

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not infringed by the trial, under the ordinance because the minimum penalty prescribed by it
could not be said to be greater than what could be inflicted, under the law in force at the time he
committed the offence.
Under Article 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 the commission of
offence. The total sentence of fine-ordinary and compulsory- in the present case could not be
said to be greater than what might have been inflicted under Section 420,the law in force at the
time of the commission of the offence, because the fine which could have been imposed under
Section 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 commission of the offence which such a law authorized imposition of an unlimited fine for the
same offence.
Article 20 contemplates proceedings in the nature of the criminal proceedings and it does not
apply to the proceedings under a sales tax which have a civil sanction and are of a revenue
nature. The word penalty in Article 20(1) does not include a penalty under a tax law levied by
departmental authorities for violation of statutory provision. A penalty imposed by such an
authority is only a civil liability, though penal in character. Article 20(1) applies when a
punishment is imposed for offences through criminal prosecution.
An ex post facto law which only modifies the rigours of a criminal law is not within the
prohibition of Article 20(1). Therefore, an accused should have the benefit of a retrospective or
retroactive criminal legislation reducing punishment for an offence. 20 The court also 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.

20

T. Barai v. Henry Ah Hoe, AIR 1983 SC 150

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Verdicts of Supreme Court and Ex Post Facto Laws:

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.21 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 immunity extends only against punishment by courts of a criminal offence under as ex-postfacto law, and cannot be claimed against preventive detention, or demanding a security from a
press under a press law, for acts done before the relevant law is passed. Similarly, a tax can be
imposed retrospectively.22 Imposing retrospectively special rates for unauthorized use of canal
water is not hit by Art. 20(1).
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). 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 Punjab 23vis--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
21
22

23

AIR 1977SC 2279

Sunderaramier & Co. v. State of Andhra Pradesh, AIR 1958 SC 468.
AIR 1964 SC 464

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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.
A person can be convicted and punished under a law in force which means a law factually in
existence at the time the offence was committed. A law not factually in existence at the time,
enacted subsequently, but by a legislative declaration deemed to have become operative from
an earlier date (by a fiction of law), cannot be considered to be a law factually in force earlier
than the date of its enactment and the infirmity applying to an ex-post-facto law applies to it, the
reason is that if such a fiction were accepted, and a law passed later were to be treated as a law in
existence earlier, then the whole purpose of the protection against an ex-post-facto law would be
frustrated, for a legislature could then give a retrospective operation to any law.
A slightly different situation is presented by the following fact-situation. A law was made in
1923, and certain rules were made there under. The Act of 1923 was replaced in 1952 by another
Act, but the old rules were deemed to be the rules under the new Act as well. As these rules had
been operative all along and did not constitute retrospective legislation, an offence committed in
1955 could be punishable under them as these were factually in existence at the date of the
commission of the offence.

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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.
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-postfacto law is in itself invalid, it is not so in India. The courts may also interpret a law in such a
manner that any objection against it of retrospective operation may be removed. In lily Thomas
v. Union of India24 it was argued that the law declared by the Supreme Court in Sarla
Mudgal could not be given retrospective effect because of Art. 20(1); it ought to be given only
prospective operation so that the ruling could not be applied to a person who had already
solemnised the second marriage prior to the date of the Sarla Mudgal judgment25. However,
Supreme Court rejected the contention arguing that it had not laid down any new law in Sarla
Mudgal. What the court did in that case was only the law which had always been existence. It is
the settled principle that the interpretation of a provision of law relates back to the date of the law
itself and cannot be prospective from the date of the judgment because the Court does not
legislate but only interprets existing laws.

24
25

AIR 1995 Sc 1531

AIR 2000 Sc 1650

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CONCLUSION
Indians are blessed against the application of ex post facto law as Indian judiciary has provide
protection and a strong safeguard against ex post facto laws and Indian Constitution is itself a
law against such laws. I am of the opinion that in those countries where such protective clause
has not been incorporated in its constitutions they have problems provided their judiciary is not
taking the same in to consideration. I personally believe that Indian Judiciary has completely
justified the application of Art. 20 (1) of the Constitution of India which also reflects in the
pronouncement of the Supreme Court verdicts. At the same time Supreme Court has also use
some of them to provide justice to the victims also. So it can be concluded that in India every
action if legally and justifiably defined and so what today morally wrong in Indian will be
morally wrong forever provided it is according the principle of natural justice.

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BIBLIOGRAPHY
BOOKS USED

Shukla V.N, Constitution Of India, Tenth Edition, Eastern Book Company

Pandey J.N Constitutional Law Of India, 45th Edition, central Law Agency

Jain M.P Indian Constitutional Law, Fifth Edition, Wadhva Nagpur Publication