Introduction
Article 20 is the cornerstone of Indian Constitution just like the other fundamental rights. It cannot be abrogated even during an emergency. It provides for the protection in respect for conviction of offences and limits the legislative powers of the parliament or state government under Article 246 read with legislative lists under the seventh schedule.[1] The right is available to all persons, be it citizens or non-citizens. The term ‘person’ mentioned in the Article includes corporation which is accused, prosecuted, convicted or punished for an offence.[2] It provides for protection against;
- Ex-post facto laws [Article 20(1)]
- Double jeopardy [Article 20(2)]
- Self-incrimination [Article 20(3)]
1. Ex-post facto laws
An ‘ex-post-facto law’ refers to the law enacted subsequently to some occurrence. It can be of three types[3]–
- A law which declares some act or omission as an offence for the first time after completion of that act or omission.
- A law which enhances the punishment or for an offence subsequent to commission of offence.
- A law which prescribes for a new procedure for prosecution of an offence subsequent to commission of the act.
However, Article 20(1) provides for protection in just first two categories.
“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.”[4]
The ingredients are as follows:
- ‘Offence’ declared by law subsequent to the commission of the act- For instance, In Om Prakash v. State of Uttar Pradesh[5], offering bribe was not an offence in 1948, however, Criminal Law (Amendment) Act, 1952 inserted Section 165A and made it illegal. It was held that accused could not be punished under Section 165A for offering bribe in 1948.
- Law enhancing penalty subsequent to commission of act- for example, in Kedar Nath v. State of West Bengal[6], Prevention of Corruption Act, 1947 provided for punishment of imprisonment and fine. However, it increased the penalty by amendment which came into force in 1949. The court held that it cannot punish as per enhanced penalty committed in 1947.
- Beneficial ex-post facto laws- In Rattan Lal v. State of Punjab[7], Supreme Court allowed for retrospective implementation of criminal laws where issue is regarding reduction of punishment.
- Procedural ex-post facto laws- In Mohan Lal v. State of Rajasthan[8], involving Narcotics, Drugs and Psychotropic Substances Act, court asserted that only conviction or punishment and not trial under a procedural law.
Critical analysis:
The prohibition is only against the prescribing judicial punishment having retrospective effect. However, it does not prohibit enforcement of sanction by civil or revenue authority[9]. For instance, loss of deprivation of business, forfeiture of property, etc. Under the literal interpretation it fails to include civil law which affects civil liberties.
2. Double Jeopardy
Article 20(2) of the Indian Constitution provides for double jeopardy. It states;
“no person shall be prosecuted and punished for the same offence more than once.”[10]
This is based on the maxim ‘Nemo debet his vexari’, which means a man must not be put twice in peril for the same offence. Where a person has been convicted by the competent court once, them no further criminal proceedings can start again for the same offence. This has been made a fundamental right so that nobody is harassed for unnecessary cause.
The ingredients of the article are-
- The person must be accused of some offence- In Venkataraman v. Union of India[11], Supreme Court asserted that the provision deals with judicial punishment and hence, no person can be punished twice.
- The accused person shall be convicted by the competent court or judicial tribunal- The Court in Maqbool Hussain v. State of Bombay[12], the person was accused for processing gold which was against the law of the land prevailing at that time and hence, gold was confiscated by customs authority. The person was later on again convicted in criminal proceedings. However, Supreme Court opined that proceedings of judicial tribunal are different from that if criminal one.
- The accused person must have been punished after prosecution before a court- Where a prosecution was nullified and accused was discharged, a fresh prosecution, in this case, shall not be in violation of this provision. In D.A Kelshikar v. State of Bombay[13], it was held that enhancement of punishment by authority does not amount to second punishment.
- The offence must be the same in both the cases- In A.A. Mulla v. State of Maharashtra[14], court elucidated that the provision shall not be applicable in cases where facts are different in later offence or punishment.
Critical analysis:
The provision shall not affect the ‘continuing offence’. A second trial may however, be allowed when a mistrial is the result of ‘manifest necessity’, for instance, when jury cannot reach a decision it simply prevents continuation of trial. The plea of double jeopardy is different from rule of estoppel. The same was clarified in Ravinder Singh v. State of Haryana[15].
In Zahira Habibullah Sheikh v. State of Gujarat[16], retrial was ordered since accused were acquitted since there was non-recording of relevant witnesses and evidences. The court also held that denial of fair trial violates interest of both victim and accused person. The court in Imtiyaz Ahmad v. State of Uttar Pradesh[17], asserted ‘access to justice is a fundamental right’. The High Court cannot abuse its power to stay criminal proceedings as it will cause injustice to victim. Also, in a situation wherein High Court arbitrarily quashes such criminal proceeding then the Supreme Court can initiate fresh trial and such cannot be claimed as double jeopardy. Also, the public prosecutor does not have power to withdraw arbitrarily the criminal case.
3. Self-incrimination
The provision is based on the maxim, ‘nemo teneturprodereaccussareseipsum’ which means no man is bound to accuse himself. Article 20(3) spells out;
“no person accused of any offence shall be compelled to be a witness against himself”.[18]
An accused in India, is treated as innocent until proven guilty. The word ‘person’ includes not only natural humans but also companies and corporations.
The ingredients of the provision are-
1. Protection is available to person who is accused of an offence– In Delhi Judicial Service Examination v. State of Gujarat[19], court clarified that a person charged of contempt to court shall not be treated as an accused of an offence within the meaning of this provision.
In Nandini Satpathy v. P.L. Dani[20], Smt. Nandini Satpathy, former Chief Minister of Orissa, was directed to appear at Vigilance Police Station for being examined in a case under the Prevention of Corruption Act registered against her for disproportionate assets. During the investigation, she was interrogated with many questions, given to her in writing. Justice Krishna Iyer held that the application of provision goes back to the stage of police investigation also. The ban on self-accusation and right to silence continues even during investigation or trial. Also the term ‘compelled testimony’ shall comprise of both physical threats and psychic tortures. Right to consult an advocate of one’s own choice shall not denied to any person.
2. Protection against compulsion to be a witness– The term ‘witness’ comprises of both oral and documentary evidence[21].
3. Compulsion to give evidence against oneself- Tape recording of statements made by the accused without his knowledge or through force or oppression does not come under the purview of Article 20(3) as clarified in Usufalli v. State of Maharashtra[22].
Selvi v. State of Karnataka[23]– Supreme Court asserted that the psychological tests taken with involuntary administration would tantamount to violation of protection against self-incrimination and one’s mental privacy.
Sonvir v. State (NCT) of Delhi[24], in this case the issue before the court was whether the sample of fingerprints given by the accused without prior permission of the Magistrateunder Section 5 of Identification of Prisoners Act, 1920 during investigation under Section 4 of the Act, be admissible or not? The court held that it is not compulsory for Police to obtain Magistrate’s Order for taking fingerprints.
[1] A.K Gopalan v. State of Madras, AIR 1950 SC 27.
[2] M.P Sharma v. Satish Chandra, AIR 1954 SC 300.
[3] Transmission Corporation of A.P. v. Ch. Prabhakar, AIR 2004 SC 3368.
[4] Indian Const. art. 20, cl. 1.
[5]Om Prakash v. State of Uttar Pradesh, AIR 1957 All 388.
[6]Kedar Nath v. State of West Bengal, AIR 1953 SC 404.
[7]Rattan Lal v. State of Punjab, AIR 1965 SC 444.
[8]Mohan Lal v. State of Rajasthan, AIR 215 SC 2098.
[9] Hathisingh Manufacturing Co. v. Union of India, AIR 1960 SC 923.
[10] Indian Const. art. 20, cl. 2.
[11]Venkataraman v. Union of India, AIR 1954 SC 375.
[12]Maqbool Hussain v. State of Bombay, AIR 1953 SC 325.
[13]D.A Kelshikar v. State of Bombay, AIR 1960 Bom 225.
[14]A.A. Mulla v. State of Maharashtra, AIR 1997 SC 1441.
[15]Ravinder Singh v. State of Haryana, AIR 1975 SC 856.
[16]Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374.
[17]Imtiyaz Ahmad v. State of Uttar Pradesh, AIR SC 2012 642.
[18] Indian Const. art. 20, cl. 3.
[19]Delhi Judicial Service Examination v. State of Gujarat, AIR 1991 SC 2176.
[20]Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025.
[21] M.P Sharma v. Satish Chandra, AIR 1954 SC 300.
[22]Usufalli v. State of Maharashtra, AIR 1968 SC 147.
[23]Selvi v. State of Karnataka, 2010(4) SCALE 690.
[24]Sonvir v. State (NCT) of Delhi, (2018) 8 SCC 24.
This Article Wriiten By Naina Agarwal, Student of Rajiv Gandhi National University of Law, Patiala.
Also Read – Fundamental Rights – Meaning And Concept
