Retrospective effect of fundamental rights


The fundamental rights guaranteed under the Constitution have no retrospective operation

Keshavan Madhavan Menon vs. State of Bombay

The case in – ‘Keshavan Madhavan Menon vs. State of Bombay’, AIR 1951 SC 128 (F), has been relied on to show that the fundamental rights guaranteed under the Constitution have no retrospective operation, and that the invalidity of laws brought about by Art. 13 (1) of the Constitution relates only to the future operation of the pre-Constitution laws which are in violation of the fundamental rights. On this footing it was argued that even on the assumption of the convictions in this case being in respect of new offences created by Ordinance No. 48 of 1949 after the commission of the offences charged, the fundamental right guaranteed under Art. 20 is not attracted thereto so as to invalidate such convictions. This contention, however, cannot be upheld. On a careful consideration of the respective Articles, one is struck by the marked difference in language used in the Indian and American Constitutions.

Sections 9 (3) and 10 of Art. 1 of the American Constitution merely say that “No ‘ex post facto’ law shall be ‘passed’ . . . . .. . . “ and “No State shall “pass ex post facto’ law . . … . . . . .. . . ..”

But in Art. 20 of the Indian Constitution the language used is in much wider terms, and what is prohibited is the conviction of a person or his subjection to a penalty under ‘ex post facto’ laws. The prohibition under the Article is not confined to the passing or the validity of the law, but extends to the conviction or the sentence and is based on its character as an ‘ex post facto’ law. The fullest effect must therefore be given to the actual words used in the Article. Nor does such a construction of Art 20 result in giving retrospective operation to the fundamental rights thereby recognised. All that it amounts to is that the future operation of the fundamental right declared in Art. 20 may also in certain cases result from acts and situations which had their commencement in the Pre-Constitution period

The Queen vs. St. Mary Whitechapel’, (1848) 116 ER 811

In – ‘The Queen vs. St. Mary Whitechapel’, (1848) 116 ER 811 at p. 814 (G), Lord Denman C. J. pointed out that a statute which in its direct operation is prospective cannot properly be called a retrospective statute because ‘a part’ of the requisite for its action is drawn from a time antecedent to its passing. The general principle, therefore, that the fundamental rights have no retrospective operation is not in any way affected by giving the fullest effect to the wording of Art. 20. This Article must accordingly be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of ‘ex post facto’ laws whether the same was a post Constitution law or pre-Constitution law. That such is the intendment of the wording used in Art. 20 (1) is confirmed by the similar wording used in Arts. 20 (2) and 20 (3). Under Art. 20 (2)1 for instance, it cannot be reasonably urged that the prohibition of double jeopardy applies only when ‘both’ the occasions therefor arise after the Constitution. Similarly, under Art. 20 (3) it cannot be suggested that a person accused before the Constitution can be compelled to be a witness against himself, if after the Constitution the case is pending.

9. In this context it is necessary to notice that what is prohibited under Art. 20 is only conviction or sentence under an ‘ex post facto’ law and not the trial thereof. Such 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 at the time cannot ‘ipso facto’ be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular Court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved.

SOURCE: AIR 1953 SC 394 : (1953) SCR 1188 : (1953) CriLJ SC 1480


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