Nullum crimen sine lege, nulla poena sine lege- A Principle of Legality: Aniket Pandey

 ‘Nullum crimen sine lege, nulla poena sine lege’- A Principle of Legality

Author: Aniket Pandey

ISSN: 2581-8465

Abstract: –

Under the Constitution, Article 21 provides every person with the right of life and personal liberty, however, this basic freedom is endangered when such a person gets accused of any criminal offense. Now since as per the Constitution no individual shall be deprived of his life or personal liberty other than through a procedure stated by the law. Therefore, it becomes imperative to safeguard his personal life and liberty. Now, in order to do the same, we have an important principle of legality based on the legal maxim, ‘nullum crimen sine lege, nulla poena sine lege’ (no penalty without a law) which basically says that in the absence of pre-determined legislation, no-body must be punished. This allows the citizens to anticipate when a particular action would be punishable, further to act accordingly with the laws given to such act or omission. The given legal maxim conveys certain rules which are as follows, non-retrospection of laws, strict construction of penal statutes, the importance of certainty in legislation, and lastly, meaning and significance of accessibility of law. This paper aims to thoroughly discuss these rules putting emphasis upon Article 20(1) of the Constitution which prohibits the application of ex-post facto laws, verdicts pronounced by certain judges and lastly certain negative and positive critical remarks upon the principle legal maxim.

Brief: Meaning of the maxim, ‘nullum crimen sine lege, nulla poena sine lege’: –

Dicey wrote, Englishmen are ruled by law, and by law alone. An Englishman might be punished for a breach of the law; however, he can be punished for nothing else. This is backed by the reason that the person accused of an offence is put at risk of his life and liberty. It is important that he must beforehand ascertain that how he stands with relation to Criminal Law. Else, to punish him for breach of that law is severe cruelty. Not only England, but this security is almost common in all civilised legal systems across the world, including India. One such principle of legality is ‘nullum crimen sine lege, nulla poena sine lege’, which simply means that except in accordance with the defined predetermined law, there can be no crime or punishment. It is essential that a punishment is ensued on a breach of law, as the same in its all form is a loss of rights consequent on a breach of law. Further, when this quality essential to punishment is lost, the same degenerates into an arbitrary act of violence giving out bad social effects.

The maxim, ‘nullum crimen sine lege, nulla poena sine lege’ conveys the following four different rules, namely:

  1. Penal Laws cannot be retrospective.
  2. Stringent construction of the penal statutes.
  3. Legislation’s certainty.
  4. Accessibility of the law

Penal Laws cannot be retrospective: –

Penal laws cannot be retrospective or in other words, no person shall be punished. except in accordance with the pursuance of a statute, which determined the penalty for a criminal conduct. A procedural change making an act criminal which previously was legal, or making the punishment for a crime more severe than it was before, when committed. Hobbes said, before law, there cannot be contravention of transgression of the same. In other words, no law can declare a done fact, crime unless there is an established law transgressed in relation to the same. Hobbes, in Leviathan has also described the scenario during the World War-II when pecuniary penalties were inflicted by statutes upon offenders in matters of criminal offences committed prior to passing the act. Such directions can be termed, ‘ultra vires’ because when a penalty is either added or annexed to the crime or in the legal provision itself, or have been commonly imposed on like cases. Then in such cases, there is a chance that the delinquent is excused from a greater penalty. It may be noted that unexpected addition plays no part in the punishment since the ultimate aim of the punishment is not a revenge but terror and the terror of a greater punishment unknown. However, in some matters such pecuniary greater penalties are justified. This is when the penalty is considered as a restoration to society of the individual enjoying unjust benefits. It can be regarded as a quasi-contractual remedy operating through a set criminal procedure. It may be noted that countries like France, Germany, American and several other countries have prohibited the application of ex-post-facto laws in criminal field. Coming to England, where the Parliament is although competent to enact ex-post facto laws but it seldom makes such enactment in the field of criminal law and further the England courts are too reluctant to put such construction on a penal statute subject to the condition that the same is intended or expressed by the Parliament. Before moving ahead, it may be interesting to note the laws considered as ex-post-facto laws, which are as follows: –

  • A law declaring an act criminal before passing the law, or an act which was legal when committed but is made criminal by a subsequent legal process and is further sanctioned under the law.
  • A law that makes a crime more severe or aggravates the same, than it was when committed.
  • A law that alters the punishment and imposes a greater sanction, than the law annexed to the crime when committed.
  • A law which assumes to regulate the civil rights and remedies only in effect inflicts a greater penalty or the deprivation of a right for anything which when committed was legal.
  • A law which takes away from the person accused of crime some lawful protection to which he/she was entitled, for instance, the protection of former conviction or acquittal or proclamation of amnesty.

Characteristics and Significance of Article 20(1) of the Constitution: –

In India, this principle has been enacted in the Article 20(1) of the Constitution, which states that no person shall be booked for any offence other than for violation of law in force at the time of the commission of the act charged as a criminal offence, nor be such person undergo greater penalty than that which might be imposed under the law in force at the time of the commission of the criminal offence. In Rao Shiv Bahadur Singh v. State[1], the Hon’ble Supreme Court of India has clearly interpreted Article 20(1) of the Constitution in the following manner. The court stated that under the Article 20(1) of the Constitution, convicting a person or subjecting him to penalty is prohibited. However, putting him under the trial under a procedure different from what was applied at the commission of the offence does not falls in the ambit of the prohibition made under the given article. Therefore, it cannot be ipso facto be held that such trial is unconstitutional. It may be noted that a person charged with the commission of offence has no fundamental right to trial by a specific procedure except cases involving constitutional objection by way of discrimination or the contravention of any other fundamental right. For instance, Section 304B of the Indian Penal Code, was enacted on 19th November 1986 which criminalised Dowry death penalising the same under the Indian Penal Code. Hence, a new offence was officially inserted in the IPC with effect from 19th November, 1978. Now, as per Article 20(1) of the Constitution, this section cannot be applied to a dowry death which happened in 1984, prior to the enactment of the section. In Sakshi v. UOI[2], the court on the ground that such interpretation may contravene Article 20(1) of the constitution, refused to give a broader meaning to the word, “rape” under section 375 of the Indian Penal Code.

Characteristics and Significance of Article 20(1) of the Constitution (Contd): –

In yet another matter of RS Joshi v Ajit Mills Limited[3], the court has defined that, the word,   “penalty” in Article 20(1) has been applied in narrower sense as meaning a remuneration, which has be to be provided or a deprivation of freedom which has to be put up with, as a result of discovering that the individual accused of a crime is culpable of the criminal offence. However, it may be noted that an ex-post facto law which is advantageous to the alleged individual is not prohibited by Article 20(1) of the Constitution.[4] Also, the restriction under the Indian law does not prohibits the legislature to enact retrospective laws, except depriving the alleged individual of a substantial right essential for his security.[5] However, it may  be noted that Article 20(1) does not bar a civil liability being inflicted retrospectively. The Hon’ble Supreme Court of India in Hatishingh Manufacturing Company v. UOI[6], clearly held that Article 20(1) does not bar the imposition of civil liability retrospectively. 

Judicial Interpretation of Article 20(1) of the Constitution: –

The Hon’ble Supreme Court of India in the landmark case of Sarla Mudgal v India[7] interpreting Section 494 of the Indian Penal Code ruled that the second marriage of a Hindu Husband post-conversion to Islam without dissolving his first marriage would be invalid in the face of the law. It was later argued in Lily Thomas v UOI[8], that the declaration made by the Supreme Court in the aforementioned case of Sarla Mudgal v. India cannot be retrospective on the basis of Article 20(1) of the Constitution. According to their argument, that the ruling made in the Sarla Mudgal case cannot be given prospective operation, and thus cannot be applied to those who have solemnized second marriage prior to the verdict pronounced in the Sarla Mudgal v. India. However, the Hon’ble Supreme Court rejected all the contentions argued that the same had never laid down any new law in the aforementioned case of Sarla Mudgal v. India. The court making its point clear held that it is a settled principle that the interpretation of a provision of law goes back to the law it law’s date itself and thus cannot be prospective from the date of the judgment. The reason for the same is that court merely interprets an existing law and holds no power to legislate.

Strict construction of the penal statutes: –

In Juggomohan Bakshee v. Ray Mathooranath[9], the apex court held that since every penal law affects the liberty of the subject, they have to be construed strictly. According to the rule, the court must see that act or omission defined as offence is within the plain meaning of the words applying in the provision framing that act or omission an offence and further must not strain the words applied in defining an offence on any account, such as to provide for omission or a slip. This rule of interpretation is known as, ‘casus omissus’ and it should be noted that although a court cannot supply a ‘casus omissus’, the same should also not interpret a statute in such a way so as to create a ‘casus omissus’. The rule of strict construction applies to penal statutes because the charge of the crime endangers the life and liberty of the accused. In Liversidge v. Anderson, Lord Atkin observed that, in a matter where the liberty of the subject is the primary concern, the court cannot go beyond the construction of Statute.

The part creating the crime is the part to which the rule of strict construction applies, subject to the condition that it is plainly forbidden by the law. However, this doubt is subject to exceptions. Further, such doubts are rare and are to be admitted with highest reluctance.[10]

Legislation’s certainty: –

The maxim, ‘nullum crimen sine lege, nulla poena sine lege’ is an injunction to the legislature that a statute should not be drawn in such wider term that almost anyone can be brought within them at the whim of the prosecution and the presiding judge.[11] A law should be definite and certain enough so that people are aware of their duty and further precisely acquainted about the prohibition created by  law. This may help people regulate their conduct in such a way so as to avoid falling within the grips of the penal provisions. The need for certainty in penal law has been emphasised by Lord Macaulay, when he said that while enacting a code one must have uniformity and diversity where required, but certainty in every case. Now, certainty in legislation does not only stands for treating crime in terms of law, but also includes drafting prohibition in clear, certain and unambiguous terms.

Accessibility and Intelligibility of the law: –

It is important that penal laws are reachable and intelligible, as the same is addressed to the mass in the society who are bound to obey it on the agony of penalty. Emphasising upon the significance of publicising the law, the Hon’ble Supreme Court of India in Harla v. State of Rajasthan[12], observed that it would be against the principle of natural justice to allow state’s subject to be punished under laws, of which the same has no knowledge and further cannot even acquire knowledge even with the exercise of due diligence. One of the key requirements of natural justice is before a law can be operated, the same must be promulgated and published. It is important that a proper compendium and authoritative statement of penal law is available. However, the layman does not need to acquire the knowledge to differentiate between murder and culpable homicide in order to understand that he must not kill others. He should only be acquainted with the fact that he may be punished if he assaults other. The person is general need not to be told regarding the scale of punishment that the same may legally follow each specific kind of exacerbated assault.

Criticism on the principle maxim: –

Alike other principles, ‘nullum crimen sine lege, nulla poena sine lege’ is also not without criticism. One of the biggest reactions against the given maxim is that the same is valid only if every prospective criminal were a legal counsel. An ordinary man is not precisely aware as to what conduct is punishable and what is not under the criminal law. Further, no ordinary criminal consults a solicitor prior committing a crime in order to know the limits of the law defining murder or burglary. Therefore, the assumption that mass is well aware of the law and is deterred by its abstract provisions is not a reality. Other than this, we have another criticism stating that criminal law is generally known either because the same reflects current morality or because of the convictions made in the press. Now, in the former case, a common man breaking a moral principle consciously risks the fact that his conduct may be a breach of the criminal law. For the latter case, it is said that the existence of mala prohibitia comes to the notice of the common man by convictions for the breach of the same reported in the press. In the case where a new crime is created, the ones who are punished first will not realise that their conduct was punishable. The common generalisation comes only when the convictions are reported. Grant may be made for the incomprehension of those who are convicted for the first time by decreasing their punishment. Thus, it can be concluded that there lies no moral difference between legislation and framing laws by judicial decisions. However, there may be cases where the law-breaker must have considered the existence of such crime. For instance, the trade union leaders must have taken into consideration the ramifications prior to declaring a strike. In such cases, it is important to deter the offender by announcing the threat of punishment beforehand. Also, the argument that criminal law becomes popular with the reporting of conviction is overhyped. Now, even though the common public is aware of the existence of law for the frequent crimes, there is absolutely no reason for not enacting a legislation providing lucid detail about the limits of the law before convicting anyone. Coming to the third remark against the principle, which says the authority of judge is capable of being justified on the assumptions of the strict deterrent theory of punishment. Now, if an activity falls outside the horizon of nominated crime, the criminal accused is encouraged by the existence of public mischief. Now, due to difference of opinion there is a debate whether it is just to turn a moral wrong into a punishment. Notwithstanding any criticism, the principle maxim can be defended on the two grounds, namely: –

  • Firstly, the supporters strongly feel that the question of criminal policy should be left to parliament and not the judge, as there are high chances of difference of opinion arising between the two.
  • Secondly, judges may get influenced by the common bad character of specific offenders while framing the rules.

Conclusion: –

The given principle basically says that unless, a punishment is based in accordance with the existing law, it cannot serve any utilitarian objective by making the criminal offender suffer. Prohibiting the retroactivity of law, the principle conveys that an individual should not be punished for something which was not a crime prior to the enactment of a particular statute of legislation. In India, we have the Article 20(1) of the Constitution which endorses the given rule of the legal maxim. Based upon the principle, it is imperative upon the judge to strictly construe the penal statue during the trial of an accused. This is necessary so that the judge does not the strain on the word used in defining the offence on any account. The legal maxim demands certainty in legislation so that not everyone is brought within them at the whim of the prosecution. Lastly, it is important that the penal legislations are reachable or accessible to the common mass so that they are educated enough to be bound by the law.

[1] Rao Shiv Bahadur Singh v. State, 1953 SCR 1188

[2] Sakshi v. UOI, (2004) 5 SCC 518

[3] RS Joshi v Ajit Mills Limited, AIR 1977 SC 2279 (India)

[4] Rattan Lal v State of Punjab, AIR 1965 SC 444 (India)

[5] Trompson v Utah, 170 U.S 343

[6]  Hatishingh Manufacturing Company v. UOI, AIR 1960 SC 923 (India)

[7] Sarla Mudgal v India, AIR 1995 SC 1531 (India)

[8] Lily Thomas v UOI, AIR 2000 SC 1650 (India)

[9] 7 W.R (PC) 18

[10] R v Prince (1884) QBD 247

[11] WILLIAM G., CRIMINAL LAW 600(2d ed.)

[12] Harla v. State of Rajasthan, 1952 SCR 110.

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