EXPOST FACTO LAW &

Double jeopardy

 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.
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(Anamnesty lawis anylawthat
retroactively exempts a select group of people, usually military leaders and government leaders, from
criminal liability for crimes committed.) law may decriminalize certain acts or alleviate possible
punishments (for example by replacing the death sentence with life-long imprisonment) retrospectively.

 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.
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.
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.

 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 Punjab 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
under the ordinance because the minimum penalty prescribed by it could not be said to be
greater than what could be inflicted on 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.

 Imposing 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.
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).

 Supreme Court of India has played an important role in exploring as well in interpreting the
doctrine of ex-post-facto law.
In R.S.Joshi v. Ajit Mills Ltd
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-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.
In Jawala Ram v. Pepsu, AIR 1962 SC 1246, A tax can be imposed retrospectively. Imposing
retrospectively special rates for unauthorized use of canal water is not hit by Art. 20(1).
In Union of India v.Sukumar, AIR 1966 SC 1206.
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).

DOUBLE JEOPARDY Article 20(2)

In The State of Bombay v. S.L. Apte and Anr.,
The Constitution Bench of this Court while dealing with the issue of double jeopardy under Article 20(2),
held:
To operate as a bar the second prosecution and the consequential punishment there under, must be for
the same offence.
The crucial requirement therefore for attracting the Article is that the offences are the same i.e. they
should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations
of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.
It is, therefore, necessary to analyze and compare not the allegations in the two complaints but the
ingredients of the two offences and see whether their identity is made out. The next point to be
considered is as regards the scope of Section 26 of the General Clauses Act. Though Section 26 in its
opening words refers to the act or omission constituting an offence under two or more enactments,
the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which
constitute the two offences with which a person is charged. This is made clear by the concluding portion
of the section which refers to shall not be liable to be punished twice for the same offence. If the
offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked.

 Section 26 in The General Clauses Act, 1897

Section 26:
Provision as to offences punishable under two or more
enactments.
Where an act or omission constitutes an offence under two or
more enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those enactments,
but shall not be liable to be punished twice for the same offence.