CRIMINAL LIABILITY UNDER CHANGED LAW

BY

PRAVEEN DALAL*

I. Introduction

 The changed circumstances and notions of a society and the lacunas prevalent in the existing legal system sometimes require the changing, amendment, modification or/and repeal of the existing law. In such a situation the law is generally changed as per the requirements of the situation.

For instance, “codifying” the same as Hindu Marriage Act, Hindu Succession Act, etc the legislature drastically changed the traditional Hindu Law. This happened due to the felt necessities of the time.

This change in the law has, however, to take care of the “vested rights and accrued liabilities” that generally arise when the previous law is in force. Thus, in between the journey of the former law and the subsequent law certain rights and liabilities originate that have to be dealt properly by the subsequent changed law. The subsequent law cannot ignore these  “contemporary developments” of the former law. That is why in almost all the subsequent laws the rights and liabilities are not only kept intact but they are also “carried forward” and dealt with under the subsequent law as per the provisions of the old law.

 II. Concept of vested rights and accrued liabilities

 The subsequent law generally incorporates the provision that “keeps alive” the “cause of action(s)” accrued under the former law. This is a normal practice adopted in cases of “civil laws”. To supplement this the provisions of the “General Clauses Act” are invoked to keep alive the rights and liabilities that accrued under the former law. The position is same when it comes to “criminal law”. Since the consequences of criminal law are far reaching it is essential to deal the same in some length. The discussion under this heading is confined to “accrued liabilities” only.

 III. Accrued liabilities and changed law

 The criminal law is very categorical regarding “accrued liabilities” under the former law. For instance, the repeal of “TADA” and the enactment of “POTA” did not affect the “criminal liabilities” that arose under the TADA. These liabilities are very much there and any offence committed under TADA can still be tried under the existing law[1], till the matter is finally decided by the apex authority. An important aspect of this “accrued liability’ is that the subsequent law cannot impose a punishment greater than that which was “originally prescribed” under the former law.  If the subsequent law provides an ‘enhanced punishment” for the same offence than it will be unconstitutional being violative of Article 20(1) of the Constitution of India. It will also be violative of Article 21 of the Constitution of India since the same will be a deprivation of life or/and liberty without “due process of law”. At the same time it will be violative of Article 14 since the enhanced sentence will subject the concerned person to ‘unequal and harsh treatment” that was not faced by other persons.

            The other side of these protections is equally important though generally it is ignored. For instance, if Article 20(1) provides a protection from “ retrospectively enhanced criminal liability” than it equally “maintains and preserves” the “punishment” that may be imposed for the commission of the crime when it was committed. If the punishment for a crime committed, when the law was in force, is retrospectively repealed[2] it would be violative of not only Article 20(1) but also Article 14[3] of the Constitution of India. Article 20(1) provides that no person shall be convicted of any offence except for the 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 which might have been inflicted under the law in force. The above Article reveals that a person[4] who has committed a crime under a validly subsisting law can be subjected for the punishment provided under that law only and generally it can be neither greater nor lesser than that punishment. Similarly, exempting any category of persons from the punitive provisions of any validly subsisting law by retrospectively amending or repealing the same will be violative of Article 14 of the Constitution of India. There cannot be any “reasonable classification” based on an “intelligible differentia” that can distinguish the grouped persons from the rest. Further, it is difficult to prove that there exists a rational relation between the classification and the object sought to be achieved by the subsequent law. This sort of treatment will undermine the “rule of law” and would be per-se against the “interest of the justice” and the same cannot see the light of the day if it is timely challenged in a court of law. 

 IV. Accrued liability and legislative powers 

The retrospective amendment of any law requires the satisfaction of the mandates of Article 13, Article 245 and Article 246 of the Constitution of India. The Parliament has law making power under Articles 245 and 246 but the same is subject to the following restrictions:

(i) The restrictions contained in Article 13,

(ii) The restrictions contained in Articles 245 and 246 themselves, and

(iii) The restrictions contained in other parts of the Constitution of India.

            The present discussion is confined to restrictions contained in Article 13 only and it is not covering other restrictions. The scope of Article 13 is very wide and all laws made by the legislature are subject to Part III dealing with Fundamental Rights. Thus, if a law made by the Parliament is in violation of any of the Fundamental Rights, the same will be void to the extent of such contravention[5]. It is important to note that a law that is repealing a criminal law and thereby the offences committed under that law with a retrospective effect will have to satisfy the tests of “constitutionality” and “due process”. It is difficult to visualise such a law without these tests in a democratic and welfare State like India. The same may not be a valid exercise of the legislative power if done otherwise. The expression “law” includes, unless the context otherwise requires, any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law[6]. Thus, the scope of Article is very wide and it covers all sort of “law making exercises” except the “amendment process” as mentioned U/A 368 of the Constitution[7]. It is established that Fundamental Rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the Fundamental Rights by process of judicial interpretation. There cannot be any distinction between the Fundamental Rights mentioned in Chapter III of the Constitution and the declaration of such Rights on the basis of the judgments rendered by the Supreme Court[8].

Thus, horizons of Constitutional law are expanding. These expanding horizons of the Constitution must be kept in mind by the legislature while enacting any law. The main object of Article 13 is to secure paramountcy of the Constitution in regards to Fundamental Rights. At the same time the Legislature has also to keep in mind the “Directive Principles of State Policy” while making laws for the country[9]. It must be noted that laws advancing the Directive principles are generally presumed to be “reasonable and legitimate”. This is the reason why a harmony between the Fundamental Rights and the Directive Principles has been declared to be a basic structure of the Constitution. Thus, the Parliament has a “plenary power” to make laws but it is subject to the “checks and balances” provided by the Constitution of India. A law that is retrospectively eliminating a “criminal liability”, imposed under a valid and subsisting law, cannot survive the wrath of the Constitution of India.  

V. Accrued liability and procedural law

 The concept of “accrued liability” applies only to “substantive laws” and not to “procedural laws” as no one can claim a “vested right” in the procedure.  In India we have both “substantive” and “procedural” laws. The Indian Penal Code and Information Technology Act are “substantive laws” whereas the Indian Evidence Act, Criminal Procedure Code and Civil procedure Code are “procedural laws”. Thus, by a retrospective law the procedure can be amended, changed or even repealed. Similarly, the protection of Article 20(1) is available for and can be seeked against “criminal matters’ only and it do not extends to “civil matters”. Thus, a “civil liability” can be enhanced with retrospective effect.

 VI. Information Technology Act and accrued liability

 The Information technology Act, 2000(Act) is a “substantive law” and not a “procedural law’, hence its amendment must satisfy the mandates of the Constitution. A failure on the part of the legislature to consider these issues may make the amended law vulnerable to the attack of “unconstitutionality”.

Even if the Act is repealed absolutely, the proceeding initiated under its repealed form will govern the position. The legislature cannot direct the Courts to determine the criminal liabilities as per the amended law when the proceedings have already been initiated under the old law. Such a direction will perturb the well-recognised concept of “Separation of powers” and will be a “Fraud on the Constitution”. That will equally be an interference with the “Judicial Review” powers of the Courts. Such a situation will, however, not arise in India since the “Legislature” is sensitive and caring enough to keep in mind these “Constitutional concerns while amending the Act.

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