Introduction

Article 20 provides protection in respect of conviction for offences. It constitutes a limitation or restriction on the legislative power of the Parliament or the State legislature. The protection contained in Art. 20 is available to all persons, citizens or non-citizens. Generally, the protection guaranteed under Art. 20 is with reference to the criminal cases.

Art. 20 : Protection in respect of conviction for offences :-

(1) No person shall be convicted of any offence except for 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 that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

Art. 20 provides protection in respect of –

(1) Ex-post facto laws – Art. 20 (1)

(2) Double Jeopardy – Art. 20 (2)

(3) Self-incrimination – Art. 20 (3)

1. Ex-post facto laws – Art. 20 (1)

An ‘ex-post facto law’ is a law which is enacted subsequent to some occurrence i.e. the commission of some act or omission. Art. 20 (1) has

provided necessary protection against ex-post facto laws. It provides that ‘no person shall be convicted of any offence except for violation of

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.’

Thus, Art. 20 (1) can be discussed in two parts –

(a) According to first part, no person shall be convicted of any

offence except for violation of law in force at the time of

commission of the act charge as an offence.

(b) According to second part, no person shall be subjected to a

penalty greater than that which he might have been subjected

to at the time of the commission of the offence.

Comments

An ex-post facto law is a law which imposes penalty retrospectively

i.e. for the act already done. Suppose, punishment prescribed for an

offence in 2002 is 6 months, but if the punishment for the same offence

is increased in 2003, to an imprisonment of 1 year and is made

applicable to the offences committed before 2003. In such cases, the

person who is charged for the criminal offence must be protected.

There are constitutional safeguards against such law.

In Kedarnath v. State of W. B., (1953), an accused committed an offence in 1947 under the Prevention of Corruption Act.

In 1949, there was Amendment in the act by which the punishment

was increased. Supreme Court held that, the increased punishment

could not be applicable to the offence committed in 1947.

Again in T. Barai v. Henry Hoe, (1983), Supreme Court held that retrospective effect can be given to criminal legislation if it is beneficial to the accused. So, if the punishment is reduced by legislation, then accused is entitled to take benefit of it.

2. Double Jeopardy – Art. 20 (2)

Clause (2) of Art. 20 provides protection against ‘double jeopardy’. The rule of the doctrine against double jeopardy are to be found in well-established magazine of the English law ‘Nemo debit vis vexari’ meaning that a man must not be put twice in peril for the same offence. The fifth Amendment of the US Constitution also speaks about protection against double jeopardy.

According to Art. 20 (2), ‘no person shall be prosecuted and

punished for the same offence more than once.’

Object

The object of Art. 20 (2) is to avoid the harassment which must be caused to a person for successive criminal proceedings where only one

crime has been committed. So, where a person has been convicted for

an offence by a competent Court, the conviction operates as a bar for any criminal proceeding against him for the same offence.

Essential elements : The protection given in Art. 20 (2) would be available only if following essential conditions are complied.

(a) The person must be accused of offence.

(b) The proceedings must have taken place before the Court.

(c) The person must have been punished after his prosecution by the Court.

(d) The person must be prosecuted for the second time before a Court.

(e ) The offence must be same in both the proceedings.

In Vekata Raman v. Union of India (1954), it was observed that the language of Article 20 and the words actually used in Article 20(2) afford a clear indication that the proceedings in connection with the prosecution and punishment of a person must be in the nature of criminal proceeding before a court of law or judicial tribunal and not before a tribunal which entertains a departmental or administrative enquiry even though, set up by a statute but which is not required by law to try a matter judicially and on legal evidence.

In Maqbool Husain v. State of Bombay, (1953), the appellant brought some gold in India from a foreign country without making a declaration. The Custom authorities confiscated the gold under the Sea Customs Act, 1878. Subsequently, he was again charged under the Foreign Exchange Regulation Act, 1947. The Supreme Court held that, the Sea Customs Authorities were not a Court or judicial tribunal and adjudging of consfiscation does not constitute a judgement of judicial character necessary to take the plea of the double jeopardy. Hence, the prosecution under the Foreign Exchange Regulation Act is not barred.

In State of M. P. v. Veereshwar, (1957), Court held that, clause (2) of Art. 20 does not apply where a person is prosecuted and punished for the second time and subsequent proceedings is mere continuation of the previous proceedings i.e. in the case of an appeal against acquittal.

3. Self incrimination – Art. 20 (3)

The cardinal principle of criminal law which is really a bedrock of English jurisprudence is that an accused must be presumed to be innocent till the contrary is proved. It is the duty of prosecution to prove the offence. The accused need not make any admission or statement against his own free will. The fundamental rule of criminal jurisprudence has been given constitutional status under Art. 20(3) of the Constitution. According to Art. 20 (3), “No person accused of any offence shall be compelled to be a witness against himself.”

Comments

The above guarantee extends to any person accused of an offence and prohibits all kinds of compulsions to make him a witness against himself. Explaining the scope of Art. 20(3) in M. P. Sharma v. Satish Chandra,(1954), the Supreme Court observed that this right embodies the following essentials :-

(a) It is a right available to a person accused of an offence.

(b) It is a protection against compulsion to be a witness and

(c) It is a protection against such compulsion resulting in his

giving evidence against himself.

But it can be said that, the information given by an accused person

after his arrest to a police officer which leads to the discovery of a fact

under sec. 27 of the Indian Evidence Act is admissible in evidence and

is not violative under Art. 20(3) of the Constitution.

In Parshadi v. State of U. P., (1957), an accused who was charged with committing of a murder stated to the police that, he would give clothes of the deceased which he had placed in a pit and thereafter he dug out the pit in presence of witnesses to take out the clothes which were identified as the clothes belonging to the deceased.The Court held that, statement of the accused leading to the recovery is not violative to Art. 20(3).

Narcoanalysis, Polygraphy and Brain Finger Printing tests of accused –Violative of Art 20(3) :

In a significant judgement in Selvi v. State of Karnataka (2010), the accused have challenged the validity of certain scientific techniques namely, Narcoanalysis, Polygraphy, and Brain Finger Printing (BEAP) tests without their consentas violative of Art 20(3).

A three judge bench of the SC unanimously held that these tests are testimonial compulsions and are prohibited by Art 20(3). The Court has also laid down the guideline for these tests some of them are like,

1. An option should be given to the accused whether he wishes to avail such test. 2. If the accused volunteers, he should be given access to a lawyer and physical, emotional, and legal implications of such a test should be explained to him by police and his lawyer. 3. The consent should be recorded by a Judicial Magistrate