Operation of Ex-Post Facto Laws in India

Ex Post Facto Law

Article 20(1) of the Indian Constitution states that-

(1) 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 phrase “law in force” implies that a particular act must be criminal at the time when it was committed by the so-called accused. An act of legislature where it retrospectively creates an offence cannot be valid. In Rao Shiv Bahadur Singh v State of Vindhya Pradesh[1] an ordinance was enacted on 11 September, 1949 but was deemed to have been in force from 9 August, 1948 in Vindhya Pradesh. Under the ordinance, the accused was tried for an offence which was committed by him in February, March and April, 1949. The court of law held that Section 2 of the Act was violative of Article 20(1) and therefore, cannot be sustained.

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“The phrase ‘law in force’ as used in Article 20 must be understood in its natural sense  as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from law ‘deemed’ to have become  operative by virtue  of Power of the Legislature to pass retrospective laws.”

Therefore “law in force” implies:

  • A person cannot be convicted for an act which was not an offence when it was committed.
  • A person cannot be made to suffer a greater punishment than what was prescribed by the law when the Act was committed.

It is important to note here that a judicial interpretation of fresh case which had never come up before the court of law does not create an offence for the first time and therefore, protection under Article 20(1) cannot be expected in such cases. Therefore, in Lily Thomas v Union of India[2] where the person had converted to Islam merely to commit the offence of bigamy, he was held liable under section 494, IPC despite the fact that he had committed the offence before 1995 when the Supreme Court actually came up with this interpretation of Section 494 in the case of Sarla Mugdal v Union of India.[3]

Ex-post facto law vis-à-vis special laws

Ex-post facto law may not work as understood in common sense in cases of special laws. For example, in Mohan Lal v State of Rajasthan[4]

Recently, in the judgement of Vijay Madanlal Choudhry v Union of India[5], the Supreme court of India held that Prevention of Money Laundering Act, 2002 is a sui generis Act, implying that it is a distinct and separate provision from general criminal laws prevailing in India.

Following this, the Supreme Court of India upheld Section 3 of the Act which states, theft of 10 kgs of opium had taken place prior to the coming into force of the NDPS Act[6], but opium was subsequently recovered after the commencement of the NDPS Act. Inter alia, the conviction under the NDPS Act was challenged on the ground that there can be ex post facto application of the NDPS Act. This Court, while upholding the conviction and rejecting the plea of Article 20(1), observed that what is punishable is the possession of the prohibited article on or after a particular date when the statute was enacted, making the offence punishable or enhancing the punishment.

Similarly, Section 3 of Prevention of Money Laundering Act, 2002 states,

“The process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.”

Interpreting this section of the Act, the court held that in the case of an offence under the PMLA, the date of coming into force of the PMLA i.e., 01.07.2005 or the date when the predicate offence was committed, is irrelevant if the PMLA offence is committed on a date subsequent to both the above date.

Therefore, these acts intend to punish any continuing act which was initiated by the offender before the Act came into force and it cannot be held to be a violation of Article 20(1).

The reasoning provided is often that these Acts intend to punish the offences which are so grave in nature that exceptional conditions maybe made for them. This argument cannot be completely discarded since certain provisions of the Constitution such Article 22 which allows for preventive detention give a glimpse of Constituent Assembly’s conception that there will be individuals whose crimes will be so grave and affecting the security of the State that exceptional provisions must be made for them. The Legislature today, uses similar reasoning for passing draconian laws to prevent crimes such money laundering and illegal possession of drugs even though these Acts sometimes, appear to be transgressing the constitutional safeguards available to people.

Conclusion

Article 20(1) is one of many constitutional provisions which prevents India from being a police State. It also corroborates the principle of criminal liability that for a person to be punished under any criminal provision, actus reus and mens rea must exist together. When a particular offence is yet to be created by the law, a person cannot be said to have committed a guilty act nor can he said to have a guilty mind.

In the past decade, India has seen a burgeoning rise in special legislations. These legislations are aimed at preventing some great harm to the society and therefore, are often comprised to the sections which incidentally surpass the constitutional provisions such as Article 20 and 22. These laws have often been termed as ‘sui generis’ by the court of law and have been upheld. However, increasing amount of such legislations in certainly disturbing specially when they have largely been unsuccessful in preventing the targeted crime, all while containing provisions violative of fundamental rights.


[1] AIR 1955 SC 446

[2] (2000) 6 SCC 224

[3] (1995) 3 SCC 635

[4] 8 (2015) 6 SCC 222

[5] 2022 SCCOnLine SC 929

[6] Narcotic Drugs Psychotropic Substances Act, 1985, No. 61, Acts of Parliament, 1985 (India)

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