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BALANCING JUSTICE: EXPLORING RETROSPECTIVITY IN JUDICIAL INTERPRETATION OF PENAL STATUTES BY.: - ADV. RAJSEE M. KHEDKAR
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"BALANCING JUSTICE: EXPLORING RETROSPECTIVITY
IN JUDICIAL INTERPRETATION OF PENAL STATUTES"
AUTHORED
BY.: - ADV. RAJSEE M. KHEDKAR
ABSTRACT :-
An essential aspect of legal discourse is the retrospective
interpretation of penal statutes by judges, which reflects
the dynamic relationship between statutes, court decisions, and changing
social norms. Through an exploration of its principles, applications, and
ramifications, this abstract explores the complex aspects of retrospectivity in
the context of interpreting penal statutes.
When
legal interpretations are applied retroactively to prior occurrences or
behaviours, it's known as retrospective judicial interpretation. This practice
frequently raises complex issues with justice, legal certainty, and the rule of law. When it comes to penal legislation, which are an area
where state power and individual liberty collide, the backward application of
legal interpretations takes on greater importance, affecting not only the rights
of the accused but also more general concepts of justice and
accountability.
The
doctrine of legality, which states that people should be able to predict the
legal ramifications of their
conduct based on clear and accessible laws,
is fundamental to the analysis of retrospectivity in penal
statutes. But this idea may be called into question
due to the fact that legal interpretation is always
changing and that court rulings are often applied retroactively, which could
violate people's rights and threaten the rule of law.
Additionally, striking
a careful balance
between the demands
of justice, legal
certainty, and the necessity of modifying legal
principles to conform to shifting society standards is required when applying
court interpretations of penal statutes retroactively. Retrospective
interpretations run the risk of weakening public confidence in the legal system
and compromising the authority of court rulings, even if they can correct
historical wrongs and guarantee consistency in legal interpretation.
The
theory of precedent, textualism, and purposivism are some of the interpretive
strategies courts use to work through these complications; each provides a
unique viewpoint on the retroactive application
of criminal statutes. Purposivism concentrates on legislative intent and the larger goals of punitive
statutes, whereas textualism stresses the importance of statutory language and historical context.
On the other hand, by following earlier
court rulings, the theory
of precedent aims to guarantee uniformity and predictability in legal
interpretation.
In addition, the effects of retrospectivity in judicial interpretation shape social norms and more general legal concepts in addition to specific cases.
Courts contribute to the formation of legal principles, the elucidation of legislative ambiguities, and the growth
of social attitudes
toward crime and punishment by retrospectively reviewing previous
judicial interpretations of penal statutes.
To summarize, the retrospectivity of judicial interpretation of penal statutes
reflects a complex interplay of legal principles, community norms, and judicial discretion. This abstract examines the principles, applications, and implications of retrospectivity in the context
of penal statutes, shedding light on the
complexities of legal interpretation and its impact on individual rights, legal
certainty, and the rule of law.
INTRODUCTION:-
THE TRANSITORY and ever-changing process of enacting laws is critical in regulating human behaviour
within society. Judges, of course, play a vital role in this entire process.
Judges are the primary drivers of legal progress due to
the power vested in them by
law and the nature of the judicial process.
It matters
how judges resolve
cases. It matters
most to those who are unlucky, litigious, wicked, or saintly enough
to end up in court.
Learned Hand, one of America's best and most well-known
judges, claimed he feared
a lawsuit more than death. The impact of a case ruling
on a person's life can be far-reaching and epoch-making, especially when, as Dworkin
points out, "law
often becomes what judges
say it is." And when the law in question
is criminal law, it is necessary to exercise caution in determining how
judges' interpretative tools affect a litigant's life in both visible and
invisible ways. A study of judicial decisions under
criminal law reveals a picture with many grey areas due to the adjudicatory function
performed by the courts. One of the most
intriguing aspects of criminal law is the concept of retrospectivity. This
paper attempts to reinvigorate the precepts
and ideas that address the issue of retrospectivity in judicial decisions.
At
the nexus of statutory law, judicial interpretation, and the administration of
justice is the retrospectivity of judicial interpretation of penal statutes,
which is a key feature of legal language. It includes applying legal
interpretations to previous actions or occurrences in retrospect, which raises
difficult issues with the rule of law, justice, and legal certainty.
Retrospective application of court interpretations has major ramifications for both the accused
and the larger community in the framework of penal statutes, which determine the boundaries of
state power and regulate the criminal justice system.
Furthermore,
broader ideas of justice and accountability are implicated in the retroactive
application of judicial interpretations in penal statutes. Retrospective
interpretations run the risk of weakening public confidence in the legal system
and compromising the authority of court rulings, even if they can correct
historical wrongs and guarantee consistency in legal interpretation. The argument over the retrospectivity of judicial interpretation of penal statutes is centered on this conflict
between the needs of justice, legal certainty, and the necessity of modifying
legal principles to accommodate shifting society standards.
Courts
utilize diverse interpretive strategies to navigate these complications, each
providing unique insights into the retroactive implementation of criminal
laws. Purposivism concentrates on the legislative intent and
the larger goals of penal statutes, whereas textualism stresses the
significance of historical context and the wording of the statute. Conversely,
by following earlier court rulings, the doctrine of precedent aims to maintain
predictability and uniformity in legal interpretation.
In order
to shed light on the intricate interactions between legal principles, societal norms, and judicial discretion in the
administration of justice, this essay will examine the concepts, applications, and implications of retrospectivity in the context
of judicial interpretation of penal statutes. It attempts to contribute to a greater
understanding of the opportunities and difficulties
associated with the retroactive application of legal interpretations in the criminal
justice system through a
comprehensive review of previous judicial decisions and academic debates.
HISTORICAL BACKGROUND:-
It
has always been believed that penalizing someone for actions they took before
to their outlawing is immoral has long existed. For example, Greek philosophy
held that frequent or retroactive modifications were undesirable; in fact, it was believed
that changes to the law were
fundamentally undesirable since
they undermined the moral authority
of the law. "Placing their faith in the educative
values of the laws and mores rather
than deterrent power,
the Greeks were suspicious of changes that diluted
the antiquity of laws and hence cast doubt upon wisdom of their ancestors".[1] The two maxims nulla poena sine crimen (no punishment without crime) and nulla crimen sine lega (no crime
without a law) were advanced by jurists under the Roman Empire. The spirit of
these principles was not aligned with retroactive laws.
Codification
was a popular practice that finally improved the effectiveness and application
of the law. In the context
of Roman law, "there is evidence, that though specified
penalties could be mitigated,
they could not be increased...this rule also reached its most rigorous
statement...insisted that for certain crimes
both offence and penalty be exactly described in the statute under
which the accusation was brought".
The West over the years established a rigid ban on retrospective laws. The French
Declaration of the Man and Citizen
of 1789 declared
(article 8) that "no one shall suffer
punishment except by virtue of
law passed and promulgated before the commission of the offence."
Human
rights charters, written by international organizations in the 20th century,
aimed to restrict the applicability of laws that were passed retroactively.
Many nations have included bans on retroactive laws in their constitutions at
the domestic level[2].
The aforementioned clauses mostly address substantive laws, and in a limited
number of nations, a distinct legal branch either permits or forbids retrospectivity
in court rulings.
A
large number of international instruments were developed with the aim of
eradicating the conditions of injustice and torture connected to the Second
World War. Retrospective legislation is opposed on the grounds that it is
unfair and unethical, as established by the Nuremberg verdicts. For example,
the application of criminal legislation retroactively is forbidden by article 7 of the ECHR. The European Court
of Human Rights
stated in R. v. Headley that any expansion of the scope
of this common law offense must be done gradually and case-by-case, rather than
all at once.
Article
7 of the ECHR, which mandates that all criminal offenses be expressly specified
by law, emphasizes the need for prudence. In Kokkinaskis v. Greece[3], the European Court noted that article
7 encompasses more than just forbidding the retroactive application of the criminal code to the detriment of the
accused; rather, it also more broadly embodies the principles that the criminal
code is the only source of definitions of crime and punishment (nullum crimen,
nulla poena sine lege), and that the criminal code cannot be broadly interpreted to the detriment of the accused, for example, by
analogy.
It was said during
the discussions surrounding the International Covenant
on Civil and Political
Rights (ICCPR) 1966 that one may interpret non-retrospectivism in different
ways depending on one's beliefs
about the evils that should be avoided.
For example, the United States
proposed that legality should shield against new judicial
interpretations of statutes, but not against retrospective passing of statutes.
On the other hand, France contended that legality needed to guard against
judges, administrators, and lawmakers enacting laws that are retroactive. The
latter opinion is claimed to be represented in the text of the ICCPR. No
author, however, can definitively state that nations with a civil law heritage
adhere to the maxim; those that do not fall into this group have an alternative
viewpoint.
In
one form or another, it is evident that the majority of international
constitutions contain a "presumption against retrospectivity," and
that a common internal practice among numerous countries is seen as
establishing a universal legal concept acknowledged by the international
community. Consequently, it may be concluded that the legality
standards must be upheld and maintained, and that judicial
retrospectivity is heavily influenced by societal norms. For a stable legal
equilibrium to be upheld, the concept of judicial independence and the courts'
creative powers must be honoured.
Nulla poena
sine lege :-
In
terms of criminal law, retrospectivity is defined by nullum crimen sans lege,
nulla poena sine lege (no crime without law, no punishment without law), or the
ex post facto prohibition, which states that behaviour must be made illegal
and punishments set before any criminal charges are brought. It is
a sacred precept that is
also a fundamental component of the legality
principle, which restricts the use of force by state agents through the
establishment and enforcement of particular laws[4].
The aforementioned premise can be extended to include two significant corollaries: (1) punitive statutes
must be strictly
interpreted; and (2) they cannot
be applied retroactively.
Retrospectivity
has historically been considered to be one of the first characteristics listed
in any list of elements that are incompatible with any civilized understanding
of the law. Additionally, it is one of the tenets that "just and effective law should be focused on the future." As a corollary, the
prohibition against non-retrospectivity is also applied to support stricter
interpretations of punitive
statutes and better codification of existing laws. The advantages that are most
frequently mentioned are: guaranteeing that people can receive notice of
prescribed behaviour so they can reasonably modify their behaviour
to avoid punishment (the principle of maximum certainty); shielding the
populace from arbitrary or oppressive state action in the face of legal
ambiguities or gaps; and enacting the explicit purposes of the law by clearly
defining behaviour that is universally condemned.
Although
one thing is certain from all attempts to define "retrospectivity":
the term has no universally accepted definition. 'Retroactive' and
‘retrospective' legislation creation are sometimes used interchangeably,
despite the fact that writers have identified a fine line separating the two.
The fundamental concerns of retrospectivity of judicial decisions are:
I.
Law changes in two primary ways: Through legislative
and judicial action. In that case, to what extent the process of adjudication
under penal law is subject to the tenet of non-retrospectivity?
II.
Since the principle of legality requires
judges to take a certain
attitude towards penal laws (for instance, strict
interpretation), how do the judges reconcile policy and welfare concerns with
that of provisions of penal statutes?
III.
Does adherence to the principle
of nulla poena
sine lege amount
to mere acceptance of the ancient dogma, which sought to limit the
judicial function to a mechanical application of the legislative intention in
the statute?
Remarkably,
regardless of the nature of the judicial function, the attention is on the new
rule and how it brings about change, thus the debate over whether judges
"make" or "declare" the law is not the main focus of the study. Examining
how court rulings
impact criminal law rights
and obligations is the goal. The
statement that "every decision on a debated point adds a little to the law
by making that point certain for the future" cannot be refuted. Judicial
rulings are extremely important because, regardless of the outcome of the case,
they will resolve the law on the specific issue at hand.
The idea of separation of powers is frequently used to restrict
the scope of judicial involvement; it states that only
democratically elected legislators should address a loophole even if a ruling
allows morally repugnant individuals
to remain free. This claim is not
supported by evidence, and the important
thing is to recognize the valid reasons
that demonstrate retrospectivity is not always a bad
thing and can even occasionally be beneficial (particularly when it comes to
judicial decisions). It is a crucial component of any legal framework.
Furthermore, it can be inferred that the definitions chosen
by different legal
systems do not apply non-retrospectivity to court rulings or
the adjudication process itself.
Conventional
perspectives outlined the bright line principle, which states that legislation
is prospective and judicial
lawmaking is retrospective. The principle appears
to be impartial in its application and gives rules that are
enacted in accordance with it a legitimacy concept that is founded on processes. It is difficult to criticize the retroactivity of judicial lawmaking
as unjust or improper
if adjudication is by its very nature
retrospective. In a similar vein, if the legislation
is designed to look forward, it does not appear arbitrary to distinguish
between individuals whose actions preceded
the effective date of a new statute and those who
will be impacted by it”.[5]
The primary goal is to determine under what circumstances a retrospective
judicial decision is still dubious because
it violates established penal law principles and affects specific rights.
A comprehensive understanding allows us to acknowledge that the exercise
of power and ideals
implied in the law of crimes results in reform through judicial adjudication in
any dynamic society. A realist
perspective would contend
that the ability
to be shielded from the retroactive
implementation of criminal court rulings is not unqualified since it may be
tailored to the particulars of each case. It is especially important to keep in mind that "nulla poena represents the peak of all values expressed in criminal law; in fact,
the treatment of criminals serves
as an indicator of a
civilization's quality.”
The
capacity to interpret penal statutes is limited by the rule of rigorous
interpretation, as is most usually obvious. In general, it forbids a decision
from going outside the bounds of the written statute. The criminal statute's limited interpretation restricts the
application of the law to the most apparent meaning
that almost any reader may understand from it. This stops power misuse. However, because the rule
of statutory interpretation is sometimes exaggerated, the strictness of the
aforementioned rule may not
always be as strong.
Previously, as Hall pointed
out:[6]
When legislators adopted the belief that criminal laws had a significant
influence on people's moral development, numerous insignificant actions were
labelled as crimes. As guardians of citizens' inherent and unalienable rights,
the courts determined that it was appropriate and just to apply a stringent interpretation of the criminal provisions of legislation, giving
the accused person
the benefit of the doubt on any questionable interpretation.
But as modern civilization changes and criminology becomes more scientifically
understood, a fresh approach to solving crime's problems is required. It's not
always possible to characterize crimes and offenders precisely on the first
try.
The main objective of the case is to demonstrate how judicial retrospectivity—despite the fact
that it negatively impacts some rights—benefits future legal developments. This
is because, given the current state of affairs, courts have the authority to
determine whether new circumstances call for departing from the traditional
strict interpretation rule in a given case.
RETROSPECTIVE AND PROCESS OF JUDICIAL ADJUDICATION: -
There
appears to be a common definition or understanding of rétrospectivity due to
the extensive use of legislation that restrict or forbid the execution of retrospective laws. However,
we need to find and settle on a definition of it before we can respond
positively to it. Many phrases, such "ex
post facto" and "retrospectivity," are used interchangeably to describe various facets of retroactivity. The term
"retroactive" is more easily used to describe laws that have a formal and explicit retrospective effect, such as when an enactment specifies
that it would take force prior to its publication, according
to writers who have tried to draw a distinction. Such laws will
frequently, though not always, have more significant effects in the past. The
expression ' Ex post facto laws' is used in several different senses:
i.
An act may be called
retrospective because it affects existing
contracts as from the
date of it is coming in to operation.
ii.
It may be more properly described as retrospective
because it applies to the actual transactions that have been completed or to
rights and remedies that have already accrued, or
iii.
It may apply again to such matters as procedure and
evidence and in each of these matters retrospective legislation has a different
effect. The term retroactive and retrospective are most commonly employed
interchangeably. As far as judicial decisions are concerned, we refer to
'retrospectivity' of judicial decisions, in order to have a different approach
to the concept, than that associated with legislative retroactivity. A broader
definition of retrospectivity is one suggested by Dennis Pearce, which says:
"A law is retrospective if it impairs an existing right or obligation."
According to this concept,
the essence of retrospectivity lies in the fact that the new legislation
"affects" rights and obligations that have "arisen in the past." In fact, a common characteristic of retrospectivity is that an individual may perform an entirely lawful
action or an action subject to minor sanctions one day, and on another,
their actions may be associated with an unknowable or contemplated sanction. This
allows the legal ramifications of past actions to be decided in the future by
legal texts that were not available at the time the action was taken.
This
definition may be more inclusive, covering any laws that modify preexisting
rights and obligations. However, this does not clarify which laws are
considered to be unquestionably retrospective, nor does it outline the standard
by which a law is deemed to be outside the purview of retrospective
legislation. If safeguarding specific interests serves as the rationale for
defining or outlawing retrospectivity, then judicial rulings may only be
challenged when they adversely impact these "interests." The
following is how the interests of those who are concerned are likely to be
impacted:[7]
i.
Individuals commonly act so as to achieve
advantageous results.
ii. Retroactive
law changes the legal results of acts after these acts have been performed.
iii.
Therefore, retroactive laws defeat reasonable expectations...a great deal of activity, which has or may have
substantial legal consequences is undertaken regardless of these consequences.
The American (article 1) Constitution and the
Indian Constitution article 20(1)[8]
both impose restrictions on legislative retrospectivity. As a result, "the status quo from which a deviation can operate
either prospectively or retrospectively does not exist for the judge as it does for the legislator." The requirement under
the aforementioned rules
is applicable to the substantive
penal legislation. In Golak Nath v. State of Punjab[9], the Supreme
Court of India
established the doctrine of
prospective overruling, which addresses judicial retroactivity in the context
of constitutional law for the first time. This was done to prevent the turmoil
that a retrospective judgment would bring about. The court outlined the
following issues in brief:[10]
i.
If the Golak Nath judgment
were to apply
retrospectively, it would introduce chaos.
ii.
In the extraordinary situation that was caused by this
decision, the court had to evolve the doctrine
which had its roots in reason and precedents so that the past may be preserved and the future protected.
iii.
The limits of retrospective effect should be left to
the courts having regard to the requirements of justice.
The
court's decision also demonstrates how this theory was appropriated from the
United States, where it was known as the "Sunburst Doctrine" and was
most commonly associated with the writings of Cardozo J. As far as he was concerned, a verdict would almost always be
retroactive. Retrospective operation is only denied in cases where the burden
is too high. The idea of prospective overruling has evolved primarily
to avoid the consequences of a retroactive verdict under certain
circumstances, with particular reference to the Indian position.
RETROSPECTIVE DECISION
MAKING :-
Despite a brief overview
of the definition and application of judicial retrospectively in various countries, the primary
goal is to distil the fundamental principles of any retrospective decision, as established in Calder
v. Bull[11]. In fact, the court's authority is
frequently used to establish new crimes or abolish ones that already
exist. It ultimately comes down to changing the original
status or charge under the statute or making an action that was done before the law was passed
but was innocent at the time it was done, criminal. In this regard, a few
examples could shed some light on India's practice of making retroactive court
decisions.
The
common element among the examples that will be examined in the following is
that, in the cases where responsibility is established by law, the court's
decision modifies the law significantly once the subject is brought before it.
Due to the decision's modification of the established legal framework surrounding the matter at hand, the party seeking
relief is no longer
entitled to the advantages or application of laws that would have been in effect had the change not occurred. For example, in the
cases of BMW hit and run involving
Sanjeev Nanda (1999) and Utsav Bhasin (2008), the court charged both accused
with culpable homicide not amounting to murder instead of applying punishment
under Section 304 B for rash and negligent driving, which carries a maximum penalty
of two years. The incidents of rash and negligent driving are legally
categorized under Section 304 B. However, due to community response and repeated calls from other state agencies for a more severe
criminal response, the offense was escalated. Notably,
on the day of the incident, the appropriate punishment was meant to be for
rash and negligent driving, but the court proceeded with charges of culpable
homicide not amounting to murder, altering the applicable offense.
In
the landmark ruling of Chairman, Railway
Board and Ors v. Chandrima Das,[12] the court introduced novel aspects to
the domain of criminal responsibility. The Government of India was deemed
responsible for compensating a woman who had been raped by railway employees. This case represents one among
many instances where the state has been compelled to take action due to its failure to ensure the safety of individuals within its jurisdiction. The notion of constitutional tort, crafted by the
judiciary, places the responsibility on the state to safeguard its citizens
from criminal acts and violence perpetrated by its employees. This judgment has
significantly departed from traditional norms of criminal liability, showcasing
a modern compensatory legal framework alongside conventional punitive measures.
In
another groundbreaking verdict, Sarla
Mudgal v. Union of India[13],
the court dealt a severe blow to the emerging practice of conversion to Islam
for the purpose of contracting multiple marriages. The court deemed such acts tantamount to bigamy under Section 494 of the Indian Penal Code. This decision unequivocally rejected the invocation of personal laws,
emphasizing the breach of moral norms and stipulating that conversion
would be punishable if not undertaken in good faith.
A
decision that retroactively modifies the legal standards of evidence, allowing
for the acceptance of less or different testimony than previously required by
law at the time of the offense, can have retrospective implications. In the
case of State of Uttar Pradesh v. Ram
Sagar[14],
the court advocated for a relaxation of the requirement of 'proof beyond
reasonable doubt' in instances of police misconduct. In this particular case,
an individual was brought to the police station and subjected to physical abuse
by constables after lodging a complaint against a fellow constable. In his
dying declaration, the victim identified only the constables present at the
station, not the Station House Officer (SHO). However, the court held both the
constables and the SHO responsible for culpable homicide, despite the lack of
explicit proof regarding the SHO's involvement. The court's decision
also prompted a reconsideration of the rules of evidence within the legal framework, recognizing
the inherent challenges faced by victims in proving instances of torture within
police custody beyond a reasonable doubt.
SOME OF THE FAMOUS
CASE LAWS: -
In this case, the Supreme Court examined the retrospective application of
an amendment to the Penal Code. The Court ruled that if a penal statute is amended to the disadvantage of an accused person, the amendment cannot be applied
retrospectively if it increases the penalty or creates a new offense.
This case dealt
with the retrospective application of an amendment to the Essential Supplies (Temporary Powers) Act, 1946. The Supreme Court
held that if a penal statute is amended
to the benefit of the accused, it can be applied retrospectively.
In this case, the Supreme Court considered the retrospective application of an amendment to the Prevention of Corruption Act, 1947. The Court held that if an amendment mitigates the
penalty, it can be applied retrospectively.
This case involved the retrospective application of an amendment to the
Bombay Agricultural Produce Market Act, 1939. The Supreme Court held that
retrospective operation should not be given to a statute so as to affect existing
rights unless the language
of the statute clearly so requires.
These cases illustrate the complexities and considerations involved in
determining the retrospective application of judicial interpretations of penal
statutes in India.
CONCLUSION:-
The concept of the rule of law is often equated with 'precise legality,' which serves to enhance
individual protection, ensure equal treatment, and establish certainty in legal
proceedings. Undoubtedly, it entails the right of individuals to have their
conduct governed by clearly defined rules established beforehand, with a strong
aversion to retroactive measures.
A
pragmatic assessment suggests that in contemporary times, the importance of
'rights' is paramount, leading to heightened expectations. Each legal system
devises its own framework to address new demands for security and dignity. It is in the best interest of society to promptly
address emerging concerns in accordance with constitutional guarantees.
Consequently, expectations may peak when a case involving significant issues
comes before the court. Particularly in a country where the highest
court holds the authority to safeguard constitutional values and issue binding
rulings, the judicial process can yield remarkable outcomes.
Although ideally,
criminal wrongdoing should
be adequately addressed within a criminal
code, excessive judicial conservatism may allow serious offenders to
evade accountability. While limitations on judicial
lawmaking may be desirable, they do not stem from the doctrine
of non- retrospectivity.
Perhaps greater emphasis on principles of stare decisis or legislative
intervention could be pursued.
Retrospectivity
is a controversial topic in the field of judicial interpretation of penal
statutes, requiring careful consideration and wise legal principle balancing.
Retrospective application of laws naturally conflicts with principles of justice, predictability, and individual rights,
even though it is sometimes necessary to correct historical wrongs or
address new social issues.
The conflict
between the integrity of legal principles and retroactive justice
has been a problem
for courts throughout legal history. A fundamental tenet of legal systems around
the world is the jurisprudential idea that people
shouldn't be punished
for deeds that were lawful
at the time they were committed. Retrospective legal action is often
necessary, though, to address systematic injustices or address unanticipated
events due to the changing standards of society and the demands of justice.
Therefore,
if we acknowledge that retroactivity in judicial rulings is susceptible to the
same critiques as legislation, given the challenge of establishing a fair
system, there exist several factors that mitigate the retroactive effects of
judicial decisions. For example, while judicial rulings may occasionally alter
legal precedent, it is uncommon
for such changes
to catch parties entirely off guard. Typically, a
decision overturning established legal understanding on a specific matter will be preceded by a series
of precursor rulings
or will be sufficiently justified to safeguard societal interests,
thus minimizing any potential injustice.
In essence,
the process of retroactivity entails a balancing
act between authority to modify the law, encountering practical
challenges, the courage to enact change, and reasoning towards resolution, all
aimed at meeting the aspirations and expectations of the populace for a better
future. This process mitigates
conflicts between legal doctrine and rationality. In light of both
national and international developments, the notion that 'legality' challenges
rigid interpretations of jurisprudence, advocating for rules to be applied
pragmatically rather than strictly, even at the risk of deviating from
traditional interpretations.
[1] Charles Sampford, Retrospectivity and
the Rule of Law 10 (2006)
[2] (a) The Indonesian Constitution (Article 28(I)):
prohibits prosecution under retroactive application of law as this is
considered a human right that may not be derogated from in any circumstances.
(b) The Indian Constitution (Article 20): protects from conviction for
violation of law that as not an offence at the time of the commission of the act
and from a penalty greater than that under the law in force at that time. (c) The
Japanese Constitution (Article 39): protects persons from being held criminally
liable for an act which was lawful at the time it was committed. (d)
Constitution of Argentina mandates that punishment without trial based on law enacted
before an act was committed is not permitted.
[3] (1994) 17 EHHR 397
[4] Jerome Hall, General Principles of Criminal Law 28 (1947)
[5] Jill E. Fisch, "Retroactivity and Legal Change: An
Equilibrium Approach”
[6] Livingston Hall, "Strict or Liberal Construction
of Penal Statutes".
[7] David slawson , “ Comstitutional and legislative Consideration
in Retroactive Lawmaking”.
[8] Art. 20 (1) states: "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."
[9] AIR 1967 SC 1643
[10] Arvind P. Datar, "Prospective
Overruling: Correct Doctrine, Incorrect Application", (2008) 7 SCC (Jour) 41.
[11] 3 Dall. 386, 1 L.Ed. 648 (1798). The case makes a reference
to a few examples such as creation or abrogation of offences, altering the
rules of evidence or enhancing or reducing the prescribed punishment etc.
[12] AIR 2000 SC 988.
[13] AIR 1995 SC 1531
[14] 1986 Cr LJ 836.
[15] AIR 1965 SC 745
[16] AIR 1964 SC 381
[17] AIR 1955 SC 84
[18] AIR 1976 SC 2602
Article Information
BALANCING JUSTICE: EXPLORING RETROSPECTIVITY IN JUDICIAL INTERPRETATION OF PENAL STATUTES BY.: - ADV. RAJSEE M. KHEDKAR
Authors: ADV. RAJSEE M. KHEDKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/01
- Issue 7
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International Journal for Legal Research and Analysis
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