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.
Around 1946-1948 India was recognised as a part of the United Nation. Therefore In 1949 Constitution of India was rectified and provisions u/a 20(1) were inserted in the Indian Constitution. It is mentioned under Article 11(2) of UDHR, 1948 and Article 1 Sec. 9 of U.S. Constitution, 1788, Article 15(1) ICCPR, Article 7 European Conventions of Human Rights.
Accused can use this right during conviction or sentence but not a trial.
Protection is available to both citizens and foreigners for criminal cases.
Exceptions
In Indian constitution, no absolute right is given to its citizens therefore Art 20(1) subject to certain restrictions.
a) Preventive Detention: In order to maintain peace and to stop the further commission of an offence in society, preventive detention is used by way of imprisoning offenders. Article 20(1) implies convicted and offence words which make it clear that the article has no application to preventive detention. It imposes restriction against conviction/ punishment etc. but not against detention. Article 20(1) provides constitutional protection to individuals charged against criminal offences prohibited by law.
b) Civil liability/Proceeding: In case of civil liberties or civil proceedings, Art 20(1) shall not be applicable.
c) Repealed statutes: If the accused committed an offence which was recognised in law when committed but later repealed, in such matters the court can redress the case applying those repealed statutory provisions. For e.g. – persons charged under the Terrorism and Disruptive Activities Act (TADA) and Prevention of Terrorism Act (POTA) continue to languish in jail even though the laws have been repealed. Even Though such laws have been languishing but such punishment shall be continued until the tenure of punishment will be completed. In G.P. Nayyar v. State (Delhi Administration) AIR 1979: The Supreme Court held that repealed statutes remain applicable to crimes committed before the statute’s repeal therefore denied the appeal.
In the case of Rattan Lal vs State of Punjab (1964),( Rule of beneficial construction: When there are two or more possible ways of interpreting any statute’s section or word, the meaning which gives relief and protection to accused should be chosen. E.g.- A in his board exams commits cheating, as per punishment of existing laws he gets imprisonment of 2 months, later such as amended and prescribes punishment as fine of Rs. 2,000. As per beneficial construction rule, A instead of getting punishment of 2months subject to a fine of Rs. 2,000.) the court laid down the rule of beneficial construction required that an ex-post facto law could be applied only to reduce the punishment. ((A boy of 16 years convicted for house trespass and outraging the modesty of an 8 year old girl. The magistrate sentenced him to six months punishment, later the Probation of Offenders Act, 1958 came into force which said a person below age of 21 should not ordinarily be sentenced to imprisonment. The SC held that the rule of beneficial interpretation required that ex post facto law can be applied to reduce the punishment.))
Hathising Mfg. Co. v. Union of India, AIR 1960 : In June 1957 an amendment Act was passed which imposed liability on that employer who is closing their undertakings to pay compensation to their employees retrospectively & if failure to dischargement could lead to imprisonment. The Supreme Court held such liability was a civil liability which was imposed by the laws, not an offence; therefore article 20(1) couldn’t apply here.
Kedar Nath v. State of West Bengal, 1954: The accused committed an offence in 1947, which under the Act then in force was punishable by imprisonment or fine or both. The Act was amended in 1949, which enhanced punishment for the same offence by an additional fine equivalent to amount of money procured by the accused through the offence. The SC held that the enhanced punishment could not be applicable to the act committed by the accused in 1947.
ARTICLE 20(2):
Fundamental right which is guaranteed under Article 20(2) of Constitution of India incorporates the principles of “autrefois convict” Double jeopardy which means that person must not be punished twice for the offence. Doctrine against Double Jeopardy embodies in English common law’s maxim ‘nemo debet bis vexari, (no man shall be punished twice, if it appears to the court that it is for one and the same cause). It also follows the “audi alterum partem rule”. “Autrefois acquit”(Previously tried and acquitted). Article 20(2) has been adopted from the fifth amendment of the US Constitution but doesn’t incorporate the principle of autrefois acquit as incorporated by the US Constitution
(Section 300 of the amended Criminal Procedure Code,1973) , which states, 300(1) a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been under sub- section (1) of the section 221 or for sub-section (2) there of. It is to be noted that, the Code of Criminal procedure recognize both the pleas of autrefois acquit as well as autrefois convict. The conditions which should be satisfied for raising either of the plea under the Code are: firstly; that there should be previous conviction or acquittal, secondly; the conviction or acquittal must be by be a court of competent jurisdiction, and thirdly; the subsequent proceeding must be for the same offence. The expression “same offence” shows that the offence for which the accused shall be tried and the offence for which he is again being tried must be identical, and based on the same set of facts. {State of Rajasthan v Hat Singh, (2003)}
Under the American and British Constitution the protection against Double Jeopardy is given for the second prosecution for the same offence irrespective of whether an accused was acquitted or convicted in the first trial. But under Article 20(2) the protection against double punishment is given only when the accused has not only been ‘prosecuted’ but also ‘punished’, and is sought to be prosecuted second time for the same offence (Held in Smt. Kalawati v. state of H.P., AIR 1953: In this case, the appellant was accused of committing murder and was prosecuted, later acquitted by the district judge. The State appealed against the decision. The defendants took the plea of double jeopardy. The Court held that the appeal against acquittal cannot be considered to be the second prosecution, but the continuation of original prosecution, therefore the rule against double jeopardy will not play a role in this situation.)
Maqbool Husain v. state of Bombay,1953, the appellant – bought gold to India – He had not declared it to customs authorities.-they confiscated gold- later they charged him under FERA- Appellant contention was that he was already prosecuted and punished as his gold was confiscated -but SC ruled Sea customs authorities are not court/tribunal and hence Prosecution under FERA not barred
Thomas Dana v. the State of Punjab, 1958 – In this, it was held by the Apex Court that to claim the protection of the rule against double jeopardy enumerated under Article 20(2), it is necessary to show that
there was a previous prosecution
the prosecution led to punishment and
the accused is being punished for the same offence again.
In Venkataraman v. Union of India,[1954] An enquiry was made before the enquiry commissioner on the appellant under the Public Service Enquiry Act,1960 & as a result, he was dismissed from the service. He was later on, charged for committed the offence under Indian Penal Code & the Prevention of Corruption Act. The court held that the proceeding held by the enquiry commissioner was only a mere enquiry & did not amount to a prosecution for an offence. Hence, the second prosecution did not attract the doctrine of Double Jeopardy or protection guaranteed under Fundamental Right Article 20 (2).
It is to be noted that Article 20 (2) will applicable only where punishment is for the same offence, In Leo Roy v. Superintendent District Jail,[1958] The Court held: if the offences are distinct the rule of Double Jeopardy will not apply. Thus, where a person was prosecuted and punished under sea customs act, and was later on prosecuted under the Indian Penal Code for criminal conspiracy, it was held that second prosecution was not barred since it was not for the same offence.
The State of Bombay v. S.L. Apte and anr.,[1961] The Constitution Bench of this Court while dealing with the issue of double jeopardy under Article 20(2), held: “To operate as a bar the second prosecution and the consequential punishment there under, must be for “the same offence”. The crucial requirement therefore for attracting the Article is that the offences are the same i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyze and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out.
Kolla Veera Raghav Rao v.Gorantla Venkateswara Rao, 2011- In this, the difference between Article 20(2) and Section 300 CrPC was discussed and was held that Section 300 CrPC is wider in the sense that no one can be tried and convicted for the same offence or a different offence on the same facts. Article 20(2) leaves a doubt in the minds as to whether a person can be prosecuted for the same offence on different facts, the section makes it amply clear that as long as facts are the same, the person cannot be prosecuted at all. Also Art 20(2) only includes Autrifois convict not acquit.
Article 20(3)
Self incrimination means:A person shall not be asked to make statements against himself (i.e. self harming statements/confessional statements).
No person accused of any offence shall be compelled to be a witness against himself
Article 20 (3) does not apply to departmental inquiries into allegations against a government servant since there is no accusation of any offence.
In Nandini Satpathy v. P.L. Dani,1977 the appellant, a former Chief Minister was called to the Vigilance Police Station for the purpose of examination for a case filed against her under the Prevention of Corruption Act, 1947. During the investigation, she was served with a long list of questions in writing which she denied to answer and claimed protection under Article 20(3). The Supreme Court held that the objective of Article 20(3) is to protect the accused from unnecessary police harassment and the right against self-incrimination is available to witness and the accused in the same manner, and it is applicable at every stage where information is furnished. The privilege under Article 20(3) is applied at the stage of police investigation when the information is extracted.
This right to silence is not limited to the case for which the person is being examined but further extends to other matters pending against him, which may have the potential of incriminating him in other matters. It was also held that the protection could be used by a suspect as well.
In State of Bombay v Kathi Kalu, 1961, it was held that it must be necessarily shown that the witness was compelled to make a statement likely to incriminate him. Compulsion is an essential ingredient but if a person makes a confession without any inducement, threat or promise Article 20(3) does not apply. The accused may waive his right against self-incrimination by voluntarily making an oral statement or producing documentary evidence, incriminatory in nature.
In the case of Selvi v. State of Karnataka, 2010 the apex court rejected High Court’s reliance on the utility, reliability and validity of narco analysis test and other such tests as methods of criminal investigation. The Court found that it is a requisite compulsion to force an individual to undergo narco-analysis test, polygraph tests and brain-mapping. The answers given during these tests are not consciously and voluntarily given, so the individual is unable to decide whether or not to answer a question, hence it amounts to testimonial compulsion and attracts protection under Article 20(3). The Court stated that narco-analysis test is a cruel and inhuman treatment which violated the right to privacy of an individual. That courts cannot permit administration of narco-analysis test against the will of the individual except in cases where it is necessary under public interest. For this purpose, it is essential that the Union Government should come out with certain guidelines which are to be strictly followed while conduction such a test.
1. The permission of the Court and the written consent of the person undergoing such a test should be made compulsorily.
2. The person who is supposed to undergo such a test must be given all the necessary details about the test before he is asked to sign the consent form.
3. Control and supervision of the forensic laboratories should be made under the autonomous bodies like NHRC and the States Human Rights Commissions.
4. NHRC has suggested that at the time of polygraph test a forensic psychologist, a psychiatrist and an anaesthetist should remain present. Similar team can be directed to remain present at the time of Narco Analysis with the additional safeguard of entire proceeding audio and videotaped.
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