Today, cheating in a relationship is per se not a crime (unless Section 69 of the BNS comes into picture). But what if in the coming days, the legislature declares cheating a crime of all times? Will all the present day school going nibbas and nibbis who claim their boyfriend or girlfriend cheated on them, or anyone else for that matter, later be able to drag their ex to jail for cheating? The answer lies with the ex post facto law in Indian Constitution. But how can the Constitution of India tell what law will be in force in the future? Well, that’s where the key lies! Let us explore the concept of ex post facto and how it protects the interests of people.
Ex Post Facto Law Meaning
Ex post facto is a Latin term which means “from a thing done afterward”. Speaking of a law which is ex post facto, it retrospectively changes the legal consequences or status of actions committed earlier, or relationships that existed before its enactment. Retrospective application of laws is not something new, and most of the time, the statute itself specifies the timeline of application.
Ex Post Facto Law in Indian Constitution
The Article 20 of the Constitution of India particularly lays for the protection in respect of conviction for offences. It lays about double jeopardy, as well as the right against self incrimination. Sub-Section 1 of the provision lays the foundation of ex post facto law.
Article 20 (1)
“Article 20 – (1) 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.”
In simple words, the ex post facto law under the Constitution of India particularly addresses criminal trials in India. The Constitutional provision for ex post facto law prima facie prevents conviction for an offence based on the timeline of enactment of a specific law. It states that no person should face punishment as a consequence of law which did not exist at the time when the offence was committed. In fact, no person should face greater punishment as compared to that inflicted based on law in force when the crime was committed.
To keep it simple, the ex post facto law lays that criminal law should punish anyone in compliance with the laws that exist at the given time. If a crime is committed today and tomorrow, the law introduces a more severe punishment, then that does not apply to the crime committed yesterday. It will only be applicable to the crimes committed afterwards.
Example of Ex Post Facto Law
- Mob Lynching under BNS: The Bharatiya Nyaya Sanhita, 2023 came into force on July 1, 2024. The new criminal laws declare mob lynching a crime under Section 103 (2), which lays the punishment for murder. The provision seeks to punish when a group of five or more commit murder. So, someone who is accused of mob lynching in 2023 cannot be prosecuted after implementation of New Criminal Laws.
- Death by Negligence: The punishment for negligent death under the Indian Penal Code was a maximum imprisonment for 2 years or fine or both. However, some changes have been introduced under the Bharatiya Nyaya Sanhita in this direction. The punishment for causing death by rash or negligent act under BNS attracts imprisonment up to 5 years with fine. Hence, medical negligence allegations of a surgery done in January 2024 cannot be prosecuted under the BNS.
- Marital Rape: There has been a lot of debate on criminalizing marital rape in India. However, the IPC, or now BNS, does not punish a husband for rape in case of forced sexual relations with his wife. However, if in future, the act is considered a crime, someone who alleged that her husband raped her now while it was not considered a crime, shall not be punishable.
Ex Post Facto Law Exceptions
- Continuous Offence: As the term suggests, when a crime is continuous in nature, there can be no advantage for the accused that it started when the law did not recognize it as a crime. However, a continuous offence may be punishable from the day the law recognized it as an offence.
- Taxation Laws: It has been clarified by the Courts several times that taxation law is not a punitive or criminal law, and hence, retrospective application may be allowed. A retrospective tax is not in contravention of the ex post facto law in Indian Constitution.
- Procedural Changes: The general foundation of ex post facto law is that any change in law should not increase the punishment for the accused. This does not necessarily hint at procedural changes, unless it negatively affects the accused person. Hence, any procedural changes, for example in the Bharatiya Nagarik Suraksha Sanhita or the Bharatiya Sakshya Adhiniyam, shall not violate ex post facto law.
Conclusion
Based on all the discussion and scanning of ex post facto law in Indian Constitution, one thing is clear! The law which governs today will decide whether an act is a crime or not, and what punishment the offender deserves. The general principle in case of conviction is that no greater punishment will be attracted. However, the benefit of reduced punishment will go to the accused for sure. That is how the ex post facto law protects the people against unjust application of laws in a retrospective manner.
