Principle of Non-Retroactivity of Penal Statues: A Fundamental Human Right?

By Tanya Shishir 21 Minutes Read


The deep-rooted antipathy towards retrospective laws is an ancient one. Immunity against retroactive criminal law has been implied to be an indispensable factor in law and has been a part of the international and national law regime for a fairly long time now. The oldest case for the establishment of this principle would be that of Timokrates and the Athenian Ambassadors wherein the essentiality of the same was brought to attention.[1] Furthermore, the protection against retroactive law was also incorporated in Roman law; it is evident from the prohibitions laid down in the Corpus Juris Civilis.[2] It states that the course of the action to the injury of another person cannot be changed under any circumstances. This rule was later adopted by the common law courts and also made its way to the law adopted by the United States of America.

Although there is a lack of substantial literature on the justification of this right, it has been recognized to be valid and has been accepted in a general sense. It has also been duly mentioned in a good many human rights declarations since the year 1789. Having said that, it is also interesting to note that the law has evaded the principle in many situations as well. A decent instance would be the case of Shaw v Director of Public Prosecutions[3] of 1961. The Court was of the opinion that even though the law didn’t recognize the charge, the act of the defendant could place the welfare of the public in peril. Consequently, there was a shift in charging standards, and offences were created. It was thereby highlighted that an offence that wasn’t initially stated in a criminal statute could be recognized as a legal charge in circumstances that required the same.

This judgment along with other similar ones has been subjected to criticism. Nevertheless, any judgment given in a retrospective manner till date can’t be referred to as a travesty of justice. This leads us to the fundamental issue of the status of retrospective criminal law. It is very essential to set forth a clear answer to the question that whether the right against retrospective approach towards penal statutes is an absolute human right or whether its application can be justified by the varying degrees of crimes and their concerned distinctive issues in individual cases.

Ex Post Facto: a Brief History

Rights against a retrospective approach towards laws fundamentally originate from the basic principle crimen sine lege, nulla poena sine lege which translates to ‘no crime without law, no punishment without law.’ It is an inherent feature of criminal law and is referred to as the principle of legality. It essentially highlights the nature of criminal statutes and procedures where the penalization by law is limited as the conduct is criminalized and penalties are fixed in advance of any criminal prosecution. The two important corollaries that can be entailed under the principle of legality are a) penal statutes must be construed strictly, and b) penal statutes should not be given retrospective effect. Possible retrospective nature of penal statutes is reckoned as antithetical to any civilized concept of law. The principle against retrospective practices is utilized in a more refined codification and interpretation of the laws as the laws; being non-retrospective in nature are rather strict in nature and in terms of interpretation.

The first formulation of the principle was in Article 8 of the French Declaration of the Rights of Man in 1789.[4] The principle made a reappearance in the French Constitution in 1791 and remains a part of the French Code Penal. Further, it was incorporated in the Bavarian Code in 1813 and the German Penal Code in 1971.

The principle of legality was identified in Article 1, Section 9(3) of the American Constitution in the year 1789. Article 7 of the European Convention on Human Rights clearly states that no one shall be held guilty of a penal offence made so retrospectively. Subsequently, Article 15 of the International Covenant on Civil and Political Rights states that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

The Latin phrase ‘ex post facto’ translates to ‘out of the aftermath’ and is used to refer to retrospective laws. In the 1990s, the phrase ‘ex post facto’ law was first defined by the Supreme Court of the United States in the case of Calder v. Bull[5]. It was defined as a law that criminalizes an action that was done prior to the enactment of a statute and aggravates the said offence or one that prescribes a greater punishment than the pre-existing law provides for that act. It was further elaborated in the case of Fletcher v. Peck[6] when Chief Justice Marshall stated that such law is the “one which renders an act punishable in any manner in which it was not punishable when it was committed.” The application of retroactive laws has been looked upon as a violation of constitutional guarantees in the United States as discussed in the case of Beazell v.Ohio.[7]

Section 9 and 10 of Article 1 of the Constitution of the United States[8] were taken into account while the Indian Constitution was in its initial stages of drafting. Article 20(1) of the Indian Constitution is concerned with the protection from ex post facto laws. It states that “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.” Article 20(1) of the Indian Constitution, if interpreted in a literal sense, would conclude that ex post facto law is invalid. With that being said, it is pertinent to note that the Constitution is a dynamic document and its elasticity should not be circumvented. An observation along the same lines was made by Justice Vivian Bose in the case of State of West Bengal v. Anwar Ali Sarkar.[9]

What is wrong with a Retrospective Approach towards Penal Statutes?

In the words of Hobbes:

“No law, made after a fact done, can make it a crime. For before the law, there is no transgression of the law.”

Retrospective law as a concept sounds so harrowingly objectionable that one might think that a debate over the right against it isn’t even rational. Well, it does indeed make sense that a man needs to be aware of all the rules of the game in order to gear towards actually being a part of it and if the rules are constructed along the way, it defeats the whole purpose of the game. The problematic aspects of retroactive laws can be narrowed down to two primary issues: it is unfair and it is inconsistent.[10]

It has been contended that in the absence of the principle against retrospective operation, the justice system would be unstable and full of uncertainty and that prohibition of the same is a fundamental contribution to the construction of a coherent and rational system of justice. Proponents of the principle have highlighted the essentiality of confidence in an authoritative law. A significant point to note here is that the authority of the law that is being talked about is not synonymous with permanence.

A rather common and crucial principle in law is that of ignorantia juris non excusat which fundamentally means that a person cannot escape liability by claiming ignorance of the law. This leads us to a third corollary to the principle of legality which states that penal laws should be accessible and intelligible. In the absence of accessible penal laws, it would be unfair to not consider the ignorance of the law as an excuse. Subsequently, it is self-evident that a retrospective approach would not be in accordance with this principle.

Lastly, the objective of the principle of non-retroactivity is to prevent abuse of individuals and to protect them from tyranny. It does make sense that retroactivity has an advantage in the context of the welfare of the society as it can protect the society as a whole from the detrimental circumstances unforeseen by the makers of the law. However, the proponents contend that societal welfare is secondary and that individual liberties should be prioritized by rendering foreseeable remedies and justice.

Ex Post Facto Laws: an Extensive Analysis

The question that comes before us in this context is whether the adherence to the principle of legality is a mere acceptance of a tradition that sought to limit the judicial function to a mechanical application of the legislative intention in the statute? The very purpose is to look into the operation and effect of judicial decisions and how the obligations under criminal law are affected. The principle of separation of powers limits the realm of judicial activity in such a manner that if, by any possibility, the wrongdoer is let away with a loophole in the law, the only body that can deal with it is the law-making authority. It is impossible for the lawmakers to deal with individual cases or make a common law that fits in with the facts of every, or even ninety percent of the cases. This proposition, in its entirety, doesn’t seem too realistic. With this, it is further contended that the concept of applying a retrospective practice to substantive law may not entirely be a universal bad and occasionally might serve as a positive peculiarity. This brings us to an important question: if retrospective law was actually linked with the advantage of the concerned parties, would we still object to it? Most probably not.

The question of the validity of any principle is linked with its interpretation. Why do we need a new charge in the case of prior existence of a statute for dealing with a specific set of offences? The fundamental concept behind the enactment of new laws is the proposition that it is better than the previous one in terms of facilitating justice. However, how fair is extending this concept to acts that have been committed in the past? Although the basis of endorsing retroactive laws is to render justice, ironically enough, it is simply unjust. A relevant addition to this argument would be the fact that retroactivity does not need to be a general principle with its scope expanding to every single case. The argument in favour of retrospective application of penal statutes is simply for exceptional circumstances.

What are these exceptional circumstances? Law and morality, on the surface, have an intimate relationship. However, they have been separated for a long time now. While morality is a vast and ever-changing concept, the law is fairly narrow and not as elastic in terms of interpretation. Retroactivity, which can be referred to as a corollary of the retributive theory of punishment[11] has a direct link with morality. In the words of Glanville Williams, “Morality can have no special exemption for those who “commit the oldest sins the newest kind of ways.”[12] The exceptional circumstances that are being talked about in this context are the ones wherein it is axiomatic that the wrongdoer’s acts were morally wrong even if the law didn’t criminalize it at the time of the commission of the act.

Although arguments in favour of retroactivity have been criticized by jurists, the law-makers have always acknowledged the space for retrospective operation of criminal law, if needed. We have already discussed Shaw’s case. Another instance of retroactive operation would be the Nuremberg trials. Between 1945 and 1947, 13 different trials were held for war criminals which represented a large scale execution of Nazis. During these trials, steps were taken that went beyond the existing code of international law. Punishment was provided for all crimes against humanity and waging of a war of aggression was declared to be a crime. The Nuremberg trials were, therefore, retrospective in nature. They were justified by the fact that the acts done by the Nazis were so immoral in nature that applying an exception to the principle of non-retroactivity couldn’t be evaded.

Laws made by the judges are also essentially retrospective in nature. It is apparent that the concerned party is affected every time the court makes a decision wherein a previous case is reversed or a previously unsettled principle is solved with some clarity. Courts make such decisions despite the fact that the acts or omissions in question have been performed prior to the decision being given. However, judges do claim that their decisions aren’t retrospective as they are only interpreting the wide scope of the existing law. We can say that the law making power of courts has been accepted without actually determining or identifying the retrospective nature involved in the system of justice.


Although the tenets of interpretation of penal statutes do not sanction the provisions to be given a retrospective operation, there are many instances wherein this principle has been avoided, knowingly or unknowingly. This is primarily because retrospective operation has various connotations that haven’t been explored yet. There is a lack of clarity on the status of the principle of non-retroactivity. It is therefore of colossal relevance to render some clarity on whether the right against retroactivity has the status of a fundamental right.

A retributive approach to punishment has been adopted by the courts and has been used to punish retrospectively all around the globe. The arguments against the concept of ex post facto laws are justified. However, a limited application of the same would not be an issue. The principle, although significant, does not actually deserve the status of a human right that is absolute and fundamental in nature.

[1]The Athenian Ambassadors were relieved from paying twice the money owed to the state that was withheld by them by Timokrates. However, the law was held to be invalid as it was retroactive.

[2]Corpus Juris Civilis refers to the collection of works of fundamental jurisprudence issued by the order of Justinian I, Eastern Roman Emperor.

[3]Shaw v DPP [1962] AC 220

[4] G. Williams, Criminal Law, The General Part (2nd ed., 1961), p. 576.

[5]1 L Ed 648.

[6]7 3 L Ed 162.

[7]269 U.S. 167 (1925).

[8]Article 1, Section 9 of the US Constitution states that no bill of attainder or ex post facto law shall be permitted to pass and Section 10 states that no state shall pass any bill or ex post facto law.

[9]1952 SCR 284.

[10]A.D. Woozley, What is Wrong with Retrospective Law?, VOL 18, PHILOSOPHICAL QUARTERLY, 40-53(1968).

[11]Retributive justice is a theory of punishment that when an offender breaks the law, justice requires that they suffer in return. Additionally, it requires that the response to the crime is proportional to the offence.

[12] G. Williams, op. cit., p. 601.

Tanya Shishir

Tanya Shishir is a fourth-year law student from Symbiosis Law School, Hyderabad. She has previously interned with Wadhwa Law Chambers, New Delhi and Shardul Amarchand Mangaldas, Kolkata. Her keen interest lies in art, science and literature and she is majorly interested in the laws that protect them. She is also an advocate for human rights. In between collecting dried flowers and painting abstract faces, she is found reading and developing new perspectives on human rights. Her goal is to pen down those perspectives to make an impact on the society.

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