ARTICLE 20 Ex Post Facto Legislation Double Jeopardy Prohibition against self-incrimination

ARTICLE 20 Ex Post Facto Legislation Double Jeopardy Prohibition against self-incrimination

The Article 20 is one of the pillars of fundamental rights guaranteed by the Constitution of India. It mainly deals with protection of certain rights in case of conviction for offences. When an individual as well as corporations are accused of crimes, the provisions of Article 20 safeguard their rights. The striking feature of the Article 20 is that it can’t be suspended during an emergency period. The Article has set certain limitations on the legislative powers of the Union and State legislatures. 

ARTICLE 20

Article 20 of the Indian Constitution makes up of 3 clauses.

In a simpler sense, these three clauses deal with issue of unnecessary and rather undesirable actions by Legislature, Executive & implementing authorities.

The basic crux of these provisions are:

First, it establishes that no one should be convicted for any offence other than those violating the law in force at the time of the commission of the offence and also, one couldn’t be penalised with a greater punishment than what existed at the time of the commission of the act.

Second, no one could be convicted and punished more than once for the same offence involving the same set of facts.

Third, no one should be compelled to produce such evidence and information which could be used against him during trial incompetent judicial tribunals.

ARTICLE 20

Ex Post Facto Legislation The clause (1) of Article 20 protects individuals against ex post facto legislation, which means no individual can be convicted for actions that were committed before the enactment of the law. In other words, when a legislature declares an act to be an offence or provides a penalty for an offence, it can’t make the law retroactive so as to prejudicially affect the individuals who have committed such acts prior to the enactment of that law.

ARTICLE 20

Assume that a man, Bhairav Surve, practising black magic in Dhamangaon village of Maharashtra, murders a child of his locality on 20th December 2012. Later, in December 2013, the legislature of Maharashtra passes the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 and by virtue of provision against Ex post facto law, Bhairav Surve can’t be prosecuted and charged under the mentioned Act as the commission of offence dates back to when the act didn’t exist.

ARTICLE 20 Double jeopardy: Clause (2)

“Nemo debet bis vexari pro una et eadem causa”

The Doctrine of Double Jeopardy, which traces back its origin to American jurisprudence of punishment, means that ‘no person can be prosecuted and punished twice for the same offence in subsequent proceedings’. And, Article 20 (2), which reads that no one could be convicted and punished more than once for the same offence involving the same set of facts guarantees against the multiple convictions and Double jeopardy.

In the case of Venkataraman v. Union of India, the Supreme Court of India established that this provision deals exclusively with Judicial punishments and provides that no person is prosecuted twice by the judicial authorities. 

ARTICLE 20 Double jeopardy: Clause (2)

 The most crucial landmark judgement came in case of Maqbool Hussain v. State of Bombay, where the person accused was possessing some amount of gold, which was against lex loci at the time and gold was confiscated by the customs authority. And, later when the person was prosecuted before a criminal court, the court was confronted with the question whether this amounts to Double Jeopardy.

But, the Supreme Court observed that departmental proceedings, i.e. by Customs Authority, in this case, doesn’t amount to trial by a judicial tribunal, thus the proceedings before the criminal court is not barred in this case and the proceedings can go on. In a nutshell Departmental Proceedings are independent of trial by a judicial court or tribunal.

ARTICLE 20 Double jeopardy: Clause (2)

 However, the application of this provision does demand certain conditions to be fulfilled: 

First, that the accused or the person in question must have been tried by the court previously and it is concerned only with judicial prosecution and proceedings.

Secondly, the court trying the case must be competent, i.e. it should act under its competent jurisdiction and shouldn’t exercise its power, Ultra Vires.

Thirdly, the previous proceeding must have ended in either acquittal or conviction and if it ended merely after inquiry, such cases are not covered under the ambit of Sec 300 (1) of CrPC.

Fourthly, the previous conviction/acquittal must be in force and should not have been set aside by appeal or re-trial. This is an essential condition because in absence of let’s say, previous conviction, there will be no bar for the second prosecution and the second trial may happen.

And lastly, in the subsequent trial, he/she must be tried for the same offence and on same facts for any other offence, which is having a different charge under Section 221 (1)/(2) of CrPC.

Prohibition against self-incrimination: Clause (3) of Article 20

 Another foremost rule which provides for protection from a conviction for offences is ‘Prohibition against Self-incrimination.’ The same is provided by the Constitution of India in Part III under Article 20 (3). It describes that no one could be forced to utter and provide such information or evidence orally or by documentary means which could be used against himself during the further trial procedure. In short, no individual can be forced to accuse himself.

Also, the term ‘Witness’ includes both, Oral and documentary evidence as held in M.P. Sharma v. Satish Chandra. As held in the same case, however, there is no restriction where a search for document or seizures is being done by the authorities. However, the information and evidence produced voluntarily by the accused is permissible.

Prohibition against self-incrimination: Clause (3) of Article 20

 This immunity is only limited to criminal proceedings. The Article 20 (3) can be rightfully used as an anchor only by those accused of an offence and against whom an FIR has been lodged, which in normal course would result in prosecution. 

Article 20: Protection in respect of conviction for offences .

 (1) 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. 

(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

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