This article was written by Dhruv Vatsyayan and further updated by Rachna Kumari. This article provides an in-depth analysis of the relationship between constitutional and procedural laws with respect to the right against self-incrimination and other related laws enshrined under the Constitution, Bharatiya Nagarik Suraksha Sanhita, 2023 and international laws. 

Introduction 

In a democratic society, rights are the cornerstone of individual freedom and serve as a bedrock upon which a just and fair nation is built. Fundamental rights empower citizens to express themselves freely, participate in building the nation and hold the government accountable in case of violation of rights. 

India, being the world’s largest democracy, enshrines a comprehensive set of rights in the Constitution, guaranteeing fundamental rights to all citizens. These fundamental rights are enshrined in Part III of the Indian Constitution. Some of these rights include the right to equality, the right to protection in respect of conviction for offences, the right to life, the right to freedom of expression, etc. 

Every day, we encounter numerous news reports regarding persons being accused of some offences. Any inquisitive legal enthusiast ponders over the question of whether there exists a fundamental right or protection for the accused. Hence, to address the same, Article 20 was included in Part III of the Constitution of India.

If we analyse all the clauses of Article 20 of the Indian Constitution, we will come across this interesting inference that Clauses (1), (2) and (3) of Article 20 reflect the protection of accused and convicted persons from the excess of Legislation, Judiciary and Executive actions respectively. Also, these protections are available to all the people i.e., Indians as well as foreigners and, thus, form the bedrock of the Indian Constitution and guarantee basic human rights to the convicted and accused people. Its availability, even during an emergency is being imposed under Article 352 of the Indian Constitution is what makes it unique and so important for the discharge of democratic values.

Since, new criminal laws i.e., the Bharatiya Nyaya Sanhita, 2023 (hereinafter mentioned as “BNS”), the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter mentioned as “BNSS”) and the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter mentioned as “BSA”) have received the assent of the President and will be applicable from July 1, 2024, this article incorporates various corresponding provisions of the Indian Penal Code, 1860 (hereinafter mentioned as “IPC”), the Code of Criminal Procedure, 1973 (hereinafter mentioned as “CrPC”) and the Indian Evidence Act, 1872 (hereinafter mentioned as “Evidence Act”) respectively.

History and evolution of the fundamental rights 

Over time, the history and evolution of the rights of convicts have undergone significant changes, reflecting the change in societal attitudes, legal frameworks and concepts of justice. Ancient civilisations such as Egypt, Mesopotamia, Rome, and Ancient India were governed by the laws and rules made by the kings. These rules did not acknowledge the rights of the common people. Hence, it was at the discretion of the king and other authorities to decide the offence and punishment. 

Globally, the Magna Carta, signed in 1215, is widely regarded as a historic moment in the evolution of citizen rights and the rule of law. This pivotal document signed between King John of England and his barons, established fundamental principles that limited the power of the monarchy and granted certain rights to the people. It introduced the concept of due process, ensuring that individuals could not be arbitrarily deprived of their life, liberty and property. It also established the principle of the right to a fair trial by jury and protection against unlawful imprisonment. Magna Carta gave effect to the acknowledgement of the rights of individuals in other jurisdictions as well. Subsequently, a lot of changes were made as the world started to realise the importance of human rights. 

Before independence, Indians were deprived of their rights, first by invaders and then by Britishers. The British government was focused on exploiting India economically. Hence, it did not grant even basic rights to Indians and oppressed them in various ways. The British government did not provide rights to protection in respect of conviction to leaders such as Mahatma Gandhi, Jawaharlal Nehru, Bal Gangadhar Tilak, Sardar Patel, etc. During British rule, the citizens were arrested arbitrarily. 

After India gained independence, the Constitution makers ensured that the basic rights of individuals were not taken away by the government. Hence, fundamental rights were enshrined in the Constitution to ensure that every citizen can live in peace and harmony, regardless of their race, sex, caste, or religion. Article 20, which deals with protection in respect of conviction for offences, safeguards the rights of persons who are accused of committing an offence. 

Article 20 of the Indian Constitution : Protection of accused with respect to conviction

Article 20 of the Indian Constitution consists of 3 clauses. These three clauses deal with the arbitrary actions by the Legislature, Executive and implementing authorities. The three clauses are as follows:

• Article 20(1) mandates that no person can be convicted for an act that was not considered an offence at the time of its commission. It prohibits retrospective application of criminal laws and safeguards individuals from arbitrary actions of the State. 
• Article 20(2) protects individuals from being prosecuted and punished multiple times for the same offence. It is also known as protection against double jeopardy. It guarantees that a person cannot be penalised twice for the same offence. 
• Article 20(3) provides for protection against self-incrimination. It states that no person who is accused of an offence can be compelled to be a witness against themselves. This clause safeguards the interests of the accused and ensures that individuals are not forced to testify against their own interests during the trial. 

Importance of Article 20 of the Indian Constitution

Articles 20 and 21 are the only articles of the Constitution of India that cannot be suspended even during an emergency because they provide essential protection to individuals that are considered fundamental and unalienable rights. Article 20 safeguards protection in respect of conviction for offences and Article 21 protects the right to life and liberty of an individual. These rights are considered inherent human rights and not merely those guaranteed by the Constitution. 

The unlawful arrests of leaders of opposition parties during an emergency from June 25, 1975, to March 21, 1977, gave rise to the case of ADM Jabalpur v. Shivkant Shukla (1976), also known as the “habeas corpus case”, where the Supreme Court held that a person’s right to not to be unlawfully detained could be suspended during an emergency. This case sparked a debate regarding the precedence of the Constitution over individual liberty and protection from the State’s arbitrary detention. When the Janata government came into power, it introduced the Constitutional (Forty-fourth Amendment) Act, 1978 which limited the power of government under Article 359 which empowers the President to suspend the enforcement of rights guaranteed under Part III of the Constitution. Hence, all fundamental rights can be suspended during an emergency except those provided under Articles 20 and 21. 

Besides this, it is a known fact that the state, government, and its various law enforcement agencies hold significant authority and power over the citizens. When a person is accused of an offence, he often finds himself in a position of vulnerability, facing the might of the authorities and the rigours of the judicial process. In such a scenario, it is highly probable that the accused may be subjected to abuse of power, coercion, and unfair treatment by such government agencies. The same has been seen in various cases of custodial deaths such as Smt. Nilabati Behera alias Lalit Behera v. State of Orissa & Ors. (1993), Prithipal Singh v. State of Punjab & Anr. (2011), Re-Inhuman Conditions In 1382 Prisons v. State of Assam (2017). To minimise these risks and uphold the principles of natural justice and other legal principles such as following due process, procedure established by law, presumption of innocence, etc., a few basic rights were conferred on the accused persons in the constitutional provisions itself. These rights serve as a shield against potential abuse of power by government authorities. Additionally, even the Hon’ble Supreme Court has established guidelines to protect the rights and dignity of people in police custody, in the case of D.K. Basu v. State of West Bengal (1996). 

Provision against ex post facto law: Clause (1) of Article 20 of the Indian Constitution

Article 20(1) of the Constitution guarantees a right similar to the provisions prohibiting ex post facto laws in the American Constitution which stipulates that no laws criminalising the lawful conduct of a person shall be enacted retrospectively. Basically, ex post facto laws are those laws which penalise individuals for acts that were lawful when committed but subsequently declared unlawful by a law enacted later on. Thus, legal actions done in the past cannot be retrospectively criminalised by a subsequent law; rather, new laws can only be applied prospectively. 

Article 20(1) states that an individual cannot be prosecuted and convicted under those laws that were not in existence at the time the offence was committed, nor can he be given a punishment greater than that existed at the time of the commission of an offence. 

The legislature has the power to make both prospective and retrospective laws for the welfare of the State. However, Article 20(1) brings a clampdown to the legislative prerogative of the legislation by prohibiting retrospective implementation of a criminal law. 

Article 20(1) is the provision against the ex post facto laws. An ex-post facto law is one which imposes punishments retrospectively, i.e. upon acts already done, or which increases the penalty for the past acts. Suppose a person does an act which is lawful or is not declared an offence in 2022. A law was passed in 2024 making that act a criminal offence and seeks to punish that person for what he did in 2022. Or, suppose the punishment prescribed for an offence is increased from seven years imprisonment to life imprisonment. These are examples of ex-post-facto laws which are regarded as inequitable and against the interests of justice.  

In the case of Rao Shiva Bahadur Singh v. State of Vindhya Pradesh (1955), Justice Jagannathadas stated that “There can be no doubt as to the paramount importance of the principle that such ex post facto laws which retrospectively create offences and punish them are bad as being highly inequitable and unjust.”

Article 20(1) is divided into two parts:

• The first part protects an individual from being convicted for an act that was not considered an offence by any law in force when it was committed.
• The second part ensures that no excessive punishment is given beyond what was prescribed in the law concerned at the time of the commission of the offence. 

For an individual to seek protection under Article 20(1), the following conditions must be fulfilled:

1. He/she must be accused of an offence; 
2. The accused must not have committed an act that violated a law that was in force at the time of the commission of the act. This ensures that the accused is not punished for an act that was lawful at the time it was committed; and
3. The penalty must not be greater than that which might have been inflicted under the law in force at the time of the commission of the offence. However, the accused can benefit from reduced punishment if the punishment for a crime is reduced during the trial period. 

Part I of Article 20(1) of the Indian Constitution

The first part of Article 20(1) says that no individual shall be convicted of an offence except for the violation of a ‘law in force’ during the commission of the act. A person is not liable for doing an act which was not declared as an offence before the enactment of a new law made in future which makes that act an offence. In essence, if an act is not an offence on the date of its commission, as per the then-existing laws in force, a law enacted in future cannot punish a person retrospectively. It is noteworthy that Article 20 relates to the constitutional protection given to persons who are charged with a criminal offence because of an ex post facto law. The immunity extends only against punishment by courts for a criminal offence under an ex-post facto law. In the case of Pralhad Krishna Kurane v. The State of Bombay (1951), it was held that immunity under Article 20(1) cannot be claimed against preventive detention for acts done before the relevant law is passed. 

Exceptions to the scope of Article 20(1) of the Indian Constitution

Article 20(1) does not restrict a civil liability being imposed retrospectively. In the case of Hatisingh Manufacturing Co. Ltd. v. Union of India (1960), an Act was passed in June 1957, and it mandated those employers who shut down their businesses to compensate their employees starting from November 28, 1956. If the employers failed to comply, they could be imprisoned. The Supreme Court held that the liability imposed by the law was a civil liability, which was not a criminal offence. Therefore, Article 20(1) could not be applied. Likewise, in the case of M.P.V. Sundararamier & Co. v. The State of Andhra Pradesh (1958), it was held that a tax can be imposed retrospectively. Imposing or increasing a penalty with retrospective effect for violation of tax law does not violate  Article 20(1). This is because tax is a civil liability and tax laws deal with the collection of revenue, which is a vital function of the State. Retrospective application of taxing statutes helps the government to rectify past tax policy deviations or to address specific loopholes that the taxpayer may have exploited. In the case of Shiv Dutt Rai Fateh Chand v. Union of India (1983), the Hon’ble Supreme Court held that Article 20 does not apply to proceedings under a sales tax law which have a civil sanction and are of a revenue nature. The Court further held that a penalty imposed by departmental authorities for violation of statutory provisions is only a civil liability. Further, in the case of Y. Panduranga Swamy v. The State Of Andhra Pradesh And Anr. (1971), the petitioner was accused of misconduct within the meaning of the Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960 and the Andhra High Court held that Article 20(1) does not apply to disciplinary proceedings and the petitioner can be held guilty.

Scope of Article 20(1) for procedural changes 

Only a conviction or sentence is prohibited under Article 20(1) but not trial, under an ex-post facto law. In the case of Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh(1953), it was held that a change in the procedure of the court cannot ipso facto be held unconstitutional. When an individual is accused of committing an offence, he does not have a fundamental right to be tried in a specific court or through a particular procedure unless there’s a constitutional objection like discrimination or violation of other fundamental rights. A law which changes the venue of trial of an offence from a criminal court to an administrative tribunal is not violative under Article 20(1). 

In the case of Mohan Lal v. State of Rajasthan (2015), which involved the Narcotics, Drugs and Psychotropic Substances Act, 1985, the Court held that only conviction and punishments under an ex post facto law are prohibited under Article 20, but the trial or prosecution itself is not. A trial under a different procedure than what existed during the commission of the act does not come under the ambit of the same and cannot be struck down as unconstitutional. In the case of Sajjan Singh v. State of Punjab (1964), Sajjan Singh was found guilty of misconduct in his official duties according to Section 5(2) of the Prevention of Corruption Act, 1947. Section 5(2) creates a presumption that a government servant is guilty of misconduct if he possesses assets disproportionate to their known income unless proven otherwise. It was argued that the presumption of misconduct under Section 5(3) of the Act is violative of Article 20(1) of the Constitution. The Court held that the presumption was merely a rule of evidence and not a substantive provision creating a new offence. The Court further held that the presumption did not impose a penalty greater than what might have been inflicted under the law in force at the time of the commission of the offence. Therefore, the presumption of misconduct under Section 5(3) of the Act was a valid exercise of the power of the legislature to define and punish offences. 

Part II of Article 20(1) of the Indian Constitution

Under the second part of Article 20(1), a person cannot be given a greater penalty than what he might have incurred at the time of committing the offence. The scope of Article 20(1) has been discussed by the Supreme Court in the case of K. Satwant Singh v. State of Punjab (1960). According to Section 420 of the Indian Penal Code,1860, an unlimited fine could be imposed for the offence of cheating. In 1943, an ordinance was issued that required a minimum fine to be mandatorily imposed on a person convicted under Section 420. The Hon’ble Supreme Court held that Article 20(1) was not infringed under the ordinance because the minimum penalty prescribed by it could not be said to be greater than what could have been inflicted on Satwant under Section 420 at the time he committed the offence. In essence, the key consideration under Article 20(1) is whether a retrospective law imposes a penalty greater than what could have been imposed under the law at the time of the offence. In the case of Satwant Singh, the total fine, both “ordinary” and “compulsory”, was not considered greater than what could have been imposed under Section 420 of IPC as it allowed for an unlimited fine to be imposed on the convict. 

Beneficial construction in favour of accused persons

An ex post facto law that is beneficial to the accused is not prohibited by Article 20(1). The accused can take advantage of the beneficial provision of the ex post facto law. The rule of beneficial construction necessitates that ex post facto law should be applied to lessen the punishment of the previous law on the same subject. Such legislation is not affected by Article 20(1) and can be applied retroactively. This principle is based on sound reason, common sense and favouring the accused.

In the case of Rattan Lal v. State of Punjab (1964), the accused was a sixteen-year-old boy. He was found guilty of committing house trespass and attempting to outrage the modesty of a seven-year-old girl. The Magistrate sentenced him to six months of rigorous imprisonment and also imposed a fine. The accused appealed to the Additional Sessions Judge and then to the Hon’ble High Court through a revision petition but did not take the plea that he may be given benefit under the Probation of Offenders Act, 1958, which came into force after the Magistrate’s judgement. The Act aimed at reforming the field of penology and stipulated that individuals under 21 years of age should generally not be sentenced to imprisonment. After the High Court dismissed the revision petition; the accused requested for application of the Probation of Offenders Act in his favour. The High Court refused for the same. The accused then sought relief from the Hon’ble Supreme Court through a special leave petition. The central issue before the Supreme Court was whether an appellate court could apply the Act to an accused convicted by the Trial Court before the Act was enacted. The Supreme Court, with a majority of 2:1, answered affirmatively. Justice Subba Rao concluded that, in such petitions, the principle of beneficial construction mandates that even an ex post facto law can be applied to reduce the punishment. The Hon’ble Supreme Court allowed for such retrospective implementation of criminal laws, where the issue pertinent was the reduction of punishment in the offence. This is based on the principle that laws should not be applied retrospectively in a way that imposes greater punishment than what was applicable at the time the offence was committed. But it is in the interests of the accused when a criminal law with reduced punishment is applied retrospectively. This ensures that he is not given more punishment unnecessarily. 

In the case of M/s A.K. Sarkar & Co. & Anr. v. The State of West Bengal & Ors. (2024), one of the issues was whether the appellant could be granted the benefit of the new legislation and be awarded a lesser punishment as is presently prescribed under the new law. The Hon’ble Supreme Court took reference from the case of T. Barai v. Henry Ah Hoe (1983) where it held that when an amendment is beneficial to the accused it can be applied even to cases pending where such a provision did not exist at the time of the commission of offence. The Court referred to other cases too namely, Nemi Chand v. State of Rajasthan (2016) where six months of imprisonment was modified to a fine of Rs. 50,000/-. The same principle was applied by the Supreme Court in the case of Trilok Chand v. State of Himachal Pradesh (2020) where the sentence of three months of imprisonment and Rs. 500/- of fine was modified to that of only a fine of Rs. 5,000/-. 

Landmark cases in respect of Article 20(1) of the Indian Constitution

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

Though the legislature in India has the authority to implement laws retrospectively, Article 20(1) prohibits the legislature from enacting a criminal law retrospectively. This provision ensures that no one could be booked or charged under such laws, which were not in existence at the time of the commission of the offence. 

The Landmark judgement governing this doctrine came in the year 1953, in the case of Kedar Nath Bajoria v. State of West Bengal (1953), the Hon’ble Supreme Court stated that whenever an act is declared as a criminal offence, providing a punishment for the same by the legislature, it is always applied prospectively and cannot be implemented retrospectively. 

In the case of Maru Ram v. Union Of India & Anr. (1980), the Court noted that Article 20(1) also includes the rule that there will be no retroactive infliction of penalties heavier than those existing ones at the time of commission of the offence.

Double jeopardy: Clause (2) of Article 20 of the Indian Constitution

“Nemo debet bis vexari pro una et eadem causa”

Article 20(2) is based on the above maxim which means, “No one ought to be vexed twice for the same offence.” This maxim embodies the protection against double jeopardy.

The Doctrine of double jeopardy traces back its origin to American jurisprudence of punishment and means that “no person can be prosecuted and punished twice for the same offence”. Article 20(2) reads that no one could be convicted and punished more than once for the same offence involving the same set of facts. In essence, it guarantees against the multiple convictions of a person for the same offence in the same set of facts. 

When a person is convicted for an offence by a Court of a competent authority, the conviction bars any further criminal proceedings against him for the same offence. The basic idea is that nobody should be punished twice for the same offence. If an individual is tried again in a court, he can plead his formal acquittal or conviction as a complete defence to avoid being punished twice. Formally, he can take the plea of autrefois acquit or autrefois convict. 

The Fifth Amendment of the U.S. Constitution provides that “No person shall be subject for the same offence to be twice put in jeopardy of life or limb.” This protection is not only against being punished again for the same offence but also against being put in danger by facing another trial for the same crime. The scope of Article 20(2) in India is limited as compared to the principle of double jeopardy in England and the United States. In India, protection is available only against being tried or punished again for a crime for which a person has already been convicted, but it does not protect against being tried again after being acquitted. On the other hand, both in Britain and the USA, a person cannot be tried again even if they were acquitted in the first trial. In India, both the trial and punishment must happen together for Article 20(2) to apply. If there was a trial but no punishment, the protection of Article 20(2) does not apply, and the person can be tried again for the same offence. In the case of O.P. Dahiya v. Union of India (2003), the Hon’ble Supreme Court held that when a person is neither convicted nor acquitted of the charges against him in the first trial, a retrial in such a case would not amount to double jeopardy. A retrial can be directed even when an accused is acquitted. In the case of Nasib Singh v. State of Punjab (2021), the Hon’ble Supreme Court devised some guidelines with regard to retrials. It held that the Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice.

Further, if the same set of facts constitutes offences under two different laws, then double jeopardy is not barred. As observed by the Hon’ble Supreme Court in the case of State of Bihar v. Murad Ali Khan (1988), if there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. 

It is noteworthy that in the case of Municipal Board v. Kripa Ram (1965), the Allahabad High Court held that Article 20(2) does not apply in cases of continuing offence. Similarly, the Jharkhand High Court held in the case of Lalu Prasad @ Lalu Prasad Yadav v. The State of Jharkhand through CBI (2019) that Article 20(2) does not apply to similar offences having been committed at different times and different places. 

Landmark cases on Article 20(2) of the Indian Constitution

In the case of Venkataraman v. Union of India (1954), the Supreme Court of India established that this provision deals exclusively with judicial punishments and provides that no person should be prosecuted twice by the judicial authorities. 

The most crucial landmark judgement came in the case of Maqbool Hussain v. State of Bombay (1953), 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 of whether this amounts to double jeopardy. However, the Supreme Court observed that departmental proceedings i.e., proceedings taken by the customs authority, in this case, do not amount to trial by a judicial tribunal. Thus, the proceedings before the criminal court are 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. However, the prosecution may happen if the facts are distinct in subsequent proceedings. The same was established by the Supreme Court of India in the case of A.A. Mulla v. State of Maharashtra (1996), and it was observed that Article 20(2) would not be attracted in those cases where the facts are distinct in subsequent offence or punishment. 

The defence from prosecution for the second time has also been embodied in Section 300(1) of the Code of Criminal Procedure, which says that someone who had been convicted or acquitted by a competent court for some offence will not be liable to be prosecuted again till the previous conviction or acquittal remains in force. Thus, a conviction for the same offence and on the same set of facts is prohibited for the second time. This provision does devise a rule for where the second trial is permissible and where not.

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

“nemon tenetur seipsum accusare”

Article 20(3) is based on the abovementioned maxim which means that “no person is obliged to accuse himself”. The right against self-incrimination has existed since mediaeval times but gained importance in modern times as well since its development in common law countries. This right was started to be considered an essential right and one of the important facets of the principles of natural justice.

Article 20(3) lays down that a person cannot be compelled to be a witness in his/her own prosecution or case. This is also embodied in the American Constitution by virtue of the 5th Amendment. The 5th Amendment of the U.S. Constitution states that no individual shall be prosecuted for a serious crime unless indicted by a grand jury, except in certain military circumstances during wartime or public emergencies. It also prohibits double jeopardy, self-incrimination and deprivation of life, liberty, or property without due process of law. 

The same is provided by the Constitution of India in Part III under Article 20(3). It provides that no one could be forced to provide such information or evidence orally or by documentary means, which could be used against him during the trial. 

Also, a person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures, as in the case of a dumb witness, as held in M.P. Sharma v. Satish Chandra (1954). There is no restriction on authorities to search for documents or do seizures under Sections 94 and 96 of the CrPC. The information and evidence produced voluntarily by the accused are also permissible and not barred by Article 20(3). 

Let’s understand this with an illustration. Suppose that there is some Mr Jones, who is being tried for the offence of murder of his stepbrother and while in police custody, he says, “I have killed my stepbrother”. The same could not be admitted in the Court. However, under Section 27 of the Indian Evidence Act, 1872 (Section 23 of the BSA), if Mr. Jones discloses such information that leads to discovery, such as the weapon he used and the location of the disposed weapon, then it can be used as evidence. It would not be violative of Article 20(3). The rationale behind this is that the evidence must be in the form of communication and, for the same reasons, the medical examination done during the course of a trial is permissible. This is why the narco analysis test is frequently used by investigating authorities in India to gather information and evidence and is also considered to be not violative of the provision under Article 20(3) by virtue of Section 27 of the Evidence Act (Section 23 of the BSA).

Section 27 of the Evidence Act, 1872 and Article 20(3) of the Constitution of India are interrelated to each other in the context of self-incrimination and the admissibility of confessions. Section 27 permits the admissibility of information obtained from an accused in police custody if it leads to the discovery of facts relevant to the case. Section 25 of the Evidence Act, 1872 (Section 23 of the BSA) makes confessions made to a police officer inadmissible in the Court of law. Section 27 of the Act allows the use of confessions made to the police in certain circumstances. On the other hand, Article 20(3) of the Constitution protects individuals from being compelled to be a witness against themselves. It safeguards against self-incrimination and ensures that nobody is forced to provide such evidence that may incriminate them. It aims to prevent the abuse of power by the police. Section 27 of the Evidence Act and Article 20(3) of the Constitution try to balance the collection of evidence and protection of the rights of the accused. According to Section 164 of CrPC, 1973 (Section 183 of the BNSS)  the voluntary confessional statements made to the Magistrate by following all precautions are admissible in the court and also considered a substantial piece of evidence. 

Prohibition against self-incrimination could only be put into effect if the person is accused of a criminal offence. This doctrine could not be invoked for cases other than criminal cases. Also, as held by the Hon’ble Supreme Court in Raja Narayanlal Bansilal v. Maneck Phioze Mistry (1960), to claim immunity from being self-incriminated, there must exist a formal accusation against the person and mere general inquiry and investigation do not form grounds for the same. 

Also, the authorities can not compel the accused to produce evidence which can be used against him in his trial. The evidence can be oral or documentary. However, an exception to this lies under Section 91 of the CrPC (Section 94 of the BNSS), which gives authority to a court or an officer to issue an order demanding documents that are under the possession of the accused. 

Another provision which guarantees prohibition against self-incrimination is Section 161(2) of CrPC, 1973 (Section 180(2) of the BNSS), which says that while being examined by the authorities, a person is bound to answer all the questions truly except those which have a propensity to be used against the person himself later during trial.

Compulsion under Article 20(3) of the Indian Constitution

To bring the evidence within the constraints of Article 20(3), it must be proved that: 

• The person making the statement was accused at the time of making the statement;
• It had a material bearing on his criminality; and
• He was compelled to make the statement. 

As per Article 20(3), ‘Compulsion’ is duress; compulsion must be physical, objective action and not just the state of mind of the person making the statement. However, if the person’s mind has been influenced by an external process making the statement involuntary, it can be considered a compulsion and, therefore, extorted in the case of State of Bombay v. Kathi Kalu Oghad & Ors. (1961), the Supreme Court stated that the mere fact that the accused was in police custody at the time of making the statement would not make a presumption with regard to compulsion for making the statement. In the case of Ghazi v. State of Uttar Pradesh (1966), the Allahabad High Court held that if the police used third-degree methods to obtain a statement, then it would be barred under Article 20(3). In the case of Yusufalli v. State of Maharashtra (1968), the Supreme Court held that if an accused is induced into providing incriminatory information and the accused reveals the truth without knowing that his statements are being heard or recorded then there is no element of duress, coercion or compulsion and, therefore, he cannot claim the protection under Article 20(3). Further, in the case of R.M. Malkani v. State of Maharashtra (1973), the Supreme Court ruled that a telephonic conversation between two parties, if recorded by the police by the consent of one of the parties, could be used as evidence as it was voluntary and there was no duress or compulsion to extract the same. The fact that the tape recording was done without the appellant’s knowledge does not make the conversation inadmissible against him. In the case of Laxmipat Choraria v. State of Maharashtra (1968), the Supreme Court stated that, if the accused volunteers evidence against himself, then also Article 20(3) is not violated since Article 20(3) gives only a privilege and the accused is free to waive it if he wants to. 

Section 313 of the CrPC, 1973 (Section 351 of the BNSS) allows courts to question the accused after witnesses have testified on their behalf. The Court can draw conclusions from the accused’s responses or refusal to answer as it deems appropriate. Section 313 does not violate Article 20(3) because the accused’s responses are only considered during the inquiry and do not replace evidence presented by the prosecution. The main purpose of Section 313 is to assess the accuracy of the prosecution’s version through explanations provided by the accused. 

In the case of Selvi v. State of Karnataka (2010), the Supreme Court held that compulsory administration of certain scientific techniques, such as narco analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) bear a ‘testimonial’ character and, therefore, triggers the protection under Article 20(3) of the Constitution.

The protection under Article 20(3) is not only available to individuals but also to an incorporated body if it is “accused of an offence”. 

In the case of Sharda v. Dharmpal (2003), the Supreme Court answered the issue of whether Section 151 of the Code of Civil Procedure, 1908, could be invoked to compel a person to undergo a medical examination. The Court held that the civil courts have requisite power under Section 151 of CPC, 1908, to issue such direction either suo motu or otherwise, which would lead the court to the truth. Therefore, the protection of Article 20(3) does not extend to parties and witnesses in civil proceedings. 

Further, the protection under Article 20(3) does not apply to administrative investigations, even if the primary aim of the proceedings may be to find out whether the individual has committed an offence or not. 

Protection against conviction under procedural laws

Protection against conviction under procedural laws refers to the legal safeguards and rights afforded to individuals accused of crimes during the criminal justice process. These protections ensure fairness, prevent miscarriage of justice and uphold fundamental rights of the accused.

Res judicata under the Code of Civil Procedure, 1908

“Res judicata” is a legal principle derived from Latin which literally means “a matter adjudged”. It is a fundamental doctrine within the judicial system that ensures the finality and conclusiveness of judicial pronouncements. 

Section 11 of the Code of Civil Procedure embodies the principle of res judicata. It is also known as the “rule of conclusiveness of judgement”. Section 11 states that, “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent raised, and has been heard and finally decided by such Court.” 

The doctrine of res judicata is based on three Latin maxims, which are as follows:-

1. Nemo debet bis vexari pro una et eadem causa – This maxim means that “no one ought to be twice vexed or troubled for the same cause”. This principle prohibits prosecution or punishment of a person for the same offence or cause of action twice. It ensures that once a person has been acquitted or convicted of a particular offence, they cannot be tried again on the same charges, regardless of the judgement of the first trial, hence, when the same parties should not be permitted to re-litigate the same dispute. 
2. Interest republicae ut sit finis litium – This maxim means that “it is in the interest of the State that there be an end to litigation. It emphasises the importance of resolving legal disputes expeditiously as it is in the best interest of the State or the society as a whole. This maxim serves as a fundamental concept in the administration of justice, guiding the legal system towards fairness and efficiency. 
3. Res judicata pro veritate accipitur – It means that “a matter an adjudged is accepted as true”. This principle signifies the conclusiveness and finality of legal decisions once a matter has been legally resolved and a judgment is rendered. It prevents re-litigation of issues that have already been decided by a Court. 

It is to be noted that a matter just being in a former suit would not suffice to invoke the doctrine of res judicata. It is important that the matter is directly and substantially decided in a previous suit. If two suits are identical in nature then too res judicata can be applied. 

Constructive res judicata prevents parties from re-litigating specific issues or facts that were litigated and determined in a prior case. It applies to particular issues that have already been conclusively resolved. 

Double jeopardy under the Code of Criminal Procedure (CrPC)

Section 300 of the CrPC (Section 337 of the BNSS, 2023) and Article 20(2) of the Constitution both deal with the protection against double jeopardy. However, there are differences between them in terms of scope and application. As discussed above, when a person is being accused of committing an offence for which he has been convicted before, he can take the plea of autrefois acquit or autrefois convict, which literally means ‘previously acquitted’ and ‘previously convicted’, respectively. In terms of scope, Article 20(2) is limited as it does not apply to prevent a second prosecution for the same offence if a person is acquitted in the first prosecution. On the other hand, Section 300 of CrPC has a wider scope and covers both previous acquittal or conviction of the same offence. This means that if a person is acquitted or convicted of an offence and a distinct charge could be made for the same offence, he cannot be prosecuted for the same offence again. Further, it bars a second trial of the same offence against the same person, even if there was no punishment for the same offence as a result of the first prosecution. To sum it up, we can say that while both Article 20(2) and Section 300 of CrPC deal with the protection against double jeopardy, Article 20(2) applies only in cases where there has been a prosecution followed by a conviction, while Section 300 covers both previous acquittal or conviction of the same offence. Section 300 is wider in scope as it covers both acquittal and conviction.

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

• Firstly, the accused or the person in question must be charged with an “offence”. The offence is defined under Section 3(38) of the General Clauses Act, 1897. It states that an offence shall mean any act or omission made punishable by any law for the time being in force.”
• Secondly, 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.
• Thirdly, the court trying the case must be competent i.e., it should act under its competent jurisdiction and should not exercise its power ultra vires.
• Fourthly, 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 Section 300(1) of CrPC. 
• Fifthly, the previous conviction/acquittal must be in force and should not have been set aside by appeal or retrial. This is an essential condition because in the absence of a previous conviction, there will be no bar for the second prosecution, and the second trial may happen. 
• Lastly, in the subsequent trial, he/she must be tried for the same offence and on the same facts for any other offence having a different charge under sub-sections (1) and (2) of Section 221 of the CrPC (Section 244 of the BNSS). 

With regards to barring a second trial when the accused is convicted or acquitted, one must understand the distinction between “acquittal” and “discharge”. Discharge of the accused does not amount to an acquittal. A person is said to be discharged when he is relieved from the legal proceedings by an order which doesn’t amount to judgement which is the final order in a trial resulting in either conviction or acquittal of the accused. An order of discharge should not interpreted as a judgement. Discharge may take place either after the preliminary inquiry or during a trial before a Magistrate. When there is no prima facie case against the accused and he has not been put on his defence, nor any charge is drawn against him to which he can plead, he should be discharged and not acquitted. A person who has been discharged by the Court may be charged again with the same offence if another testimony is discovered against him but a person who has been acquitted cannot be put on trial again for the same offence involving the same charges. In the case of E.K. Thankappan v. Union of India (1989), the Special Judge discharged the accused as there was no proper sanction and the Court had no jurisdiction to take cognisance of the offence rendering the entire prosecution proceedings void ab initio. The Kerala High Court while examining this case held that the discharge of the accused cannot be construed as acquittal. Hence, the second trial involving the same facts and charges is not barred. A wrong order of acquittal will not bar a subsequent trial, however, if a person, who ought to have been acquitted is erroneously ordered to be discharged only then the order of discharge shall be treated as an order of acquittal barring a retrial. 

If the offence is the same; the first conviction or acquittal is barred by Article 20(2) of the Constitution and Section 300 of the CrPC. Though, if the offence is different and based on different facts but based on the same evidence then the previous trial would not bar a second trial. “Same offence” refers to the same criminal act or omission. In the case of, Ravinder Kaur v. Anil Kumar (2015), it was held that the explanation of Section 300 mandates that the dismissal of a complaint or discharge of an accused cannot be considered an acquittal. In this case, the respondent was discharged in furtherance of a complaint made by the appellant in respect of the offence under Section 376 of the IPC (Section 64 of the BNS, 2023) of the Indian Penal Code, without any trial being conducted against him. Since the respondent was just discharged but not acquitted, therefore, the second complaint was not barred. 

Nonetheless, there exists an exception to this provision i.e., the principle of issue estoppel, also known as “cause of action estoppel”. The principle of Issue Estoppel means that once an issue has been conclusively determined between parties in a legal proceeding, it cannot be litigated again in a subsequent proceeding. So, if a specific issue has been decided in a previous trial, it cannot be raised again in a later trial involving the same parties. It is somewhat similar to the concept of res judicata. Issue estoppel, like res judicata, involves the concept of finality in legal proceedings. However, issue estoppel specifically focuses on preventing the re-litigation of those issues that have been conclusively determined in a prior proceeding. The above-mentioned exception provides for estoppel against the ongoing prosecution if the fact-finding happens to be in favour of the accused, but it does not bar from subsequent proceedings for a different offence. However, to invoke this defence, not only the parties involved but the facts in issue should also be the same.

Relevancy of previous judgements to bar a second trial or suit

According to Section 2(9) of the Civil Procedure Code, 1908, the expression “judgment” is defined as the statement given by the judge on the grounds of a decree or order. It incorporates various details about the case such as facts, issues, arguments of both parties, evidence presented before the court, etc. In general, judgment is of two types:

1. Judgement in rem – It refers to a judgement or decision rendered by a court that directly affects the rights of all individuals, as opposed to just the parties involved in the suit. In simple words, it is a judgment that operates against the whole world rather than only the parties to the legal proceedings. It is binding on the whole world as it addresses issues of broader public or community interest rather than just the private rights of the parties involved. 
2. Judgement in personam – A judgement in personam is a decision rendered by a court that is enforceable against a specific individual or party. It establishes the rights and obligations of the parties involved in a suit and is binding only on those parties. When courts issue a judgment in personam, they do so in cases where the dispute revolves around personal rights or obligations. Unlike judgment in rem which affects is enforceable against the whole world, a judgment in personam is limited in scope to the parties directly involved in the case.

Section 40 of the Evidence Act (Section 34 of the BSA) deals with the relevancy of previous judgements or orders in the course of legal proceedings. According to this provision, the existence of any judgement, order, or decree which by law prevents any court from taking cognisance of a suit or holding a trial is a relevant fact when the question is whether such court ought to take cognisance of such suit or to hold a trial. It simply means that, if a previous judgement, order, or decree has already been passed by a competent court on the same matter, then it can prevent the same parties from litigating the same issue in a subsequent suit or trial. This is based on the principle of res judicata pro veritate accipitur which is the Latin maxim for the doctrine of res judicata. This maxim means that a matter once judged by a court of competent jurisdiction must be duly accepted as correct and cannot be re-litigated between the same parties. For example, if A and B are two parties. A sued B for fraud and the Court decided the case in favour of B but later A again filed a suit against B for the same fraud, the existence of the previous judgement will be relevant in the subsequent suit and can be used to bar the trial of the case. In the case of Mrs. Sasikala Menon v. State of Kerala & Anr. (2023), the Kerala High Court held that the principles of res judicata would apply to criminal proceedings as well. 

Section 41 of the Evidence Act, 1872 (Section 35 of the BSA, 2023) deals with the relevancy of certain judgements in probate, matrimonial, admiralty, or insolvency jurisdiction. It pertains to final judgements that confer or take away legal character from a person or declare entitlement to a specific thing. These judgements are relevant when determining the existence of any legal character or the title of a person to a specific thing. These judgements are considered conclusive proof of some main aspects such as:

1. Any legal character conferred by the judgment is deemed to have accrued at the time when the judgment came into operation. 
2. The legal character declared by the judgment to belong to a person is considered to have accrued to that person at the time specified in the judgment.
3. Any legal character taken away from a person is deemed to have ceased at the time specified in the judgment.
4. Anything declared to belong to a person by the judgment is considered to have been the property of that person at the time specified in the judgment.

Section 41 establishes that final judgements in these specific jurisdictions serve as conclusive proof of the legal character, entitlements, and property rights they confer, declare, or take away, at the times mentioned in the judgment. 

In the case of Surinder Kumar v. Gian Chand (1957), the Hon’ble Supreme Court held that the judgement of a probate court granting probate of a will in favour of the petitioner must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgement in rem. 

Under Section 42 of the Evidence Act, 1872 (Section 36 of the BSA, 2023), the relevance and effect of judgements, orders, or decrees other than those mentioned in Section 41 of the Evidence Act, pertain to matters of a public nature relevant to the inquiry. These judgements are considered relevant if they relate to public matters but are not considered conclusive proof of the facts they state. 

For example, if X, a property owner, files a suit against Y, alleging that Y has trespassed on X’s land. During the trial, Y argues the existence of a public easement over the land, which allows the public to pass through X’s land. X denies any such easement right. In this situation, the existence of a previous decree in favour of Y in a similar suit filed by X against Z where Z also claimed the existence of the same public easement is relevant. However, the previous decree would not considered conclusive proof that the public easement exists. 

Section 43 of the Evidence Act (Section 37 of the BSA, 2023) deals with the relevance of judgements, orders or decrees that are not covered under Sections 40, 41, and 42 of the Evidence Act. According to this provision, such judgements are irrelevant unless their existence is a fact in issue or is relevant under some other provisions of the Act. This means that those judgements, orders or decrees that do not fall under the categories mentioned in Sections 40, 41, and 42 are not automatically relevant in a legal proceeding. However, if the existence of such a judgement is a fact in issue or is relevant under some other provision of the Act, then it may become relevant.

For example, if  A and B separately sue C for libel. A obtains a decree against C for damages, but the fact that A has obtained a decree against C is irrelevant while deciding the case of B and C. This means that even though A has obtained a decree against C, it does not mean that C is by default liable to B for the same libel. 

Section 44 (Section 38 of the BSA, 2023) of the Evidence Act, 1872 permits a party to a legal proceeding to introduce evidence to challenge a judgement, order, or decree that has been presented by the opposing party as evidence. This judgement can be used to demonstrate that the concerned judgement, order, or decree was delivered by an incompetent court obtained through collusion (an illegal agreement or through a conspiracy between the parties) or obtained through fraudulent means. 

This section ensures that those judgements or orders which are obtained through fraudulent, collusive means or passed by a court of incompetent jurisdiction can be challenged and are not accepted as valid evidence in the court. 

For example, A and B enter into a contract. A is based in Delhi. B is based in Rajasthan. A breaches the Court. B sues A in a court in Karnataka and obtains a favourable order. Now, since the courts of competent jurisdiction in this case is either a court in Delhi or Rajasthan; the order obtained by a Karnataka Court can be challenged as it was passed by a court of incompetent jurisdiction. 

International aspects of rights of a convicted person  

Under International Law, various legal frameworks and agreements discuss the significance of safeguarding the rights of individuals who are in custody, whether as prisoners, undertrials, or arrested. This recognition underscores the fundamental principle that all human beings possess inherent dignity and are entitled to certain fundamental rights that cannot be taken away. Key international instruments such as the International Covenant on Civil and Political Rights (ICCPR), the Geneva Convention, the Universal Declaration of Human Rights (UDHR) and the European Convention on Human Rights (ECHR) affirm that every individual has the right to liberty, security and protection in respect of conviction for offences.

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is a fundamental international human rights treaty adopted by the United Nations General Assembly in 1965. It entered into force on March 23, 1976, and it has now become one of the primary instruments in the protection and promotion of civil and political rights worldwide. The ICCPR, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR), constitute the International Bill of Human Rights. The ICCPR outlines the civil and political rights that are inherent to all individuals, regardless of their nationality, race, religion, sex, caste, etc. These rights include the right to life, freedom of expression, freedom of religion, the right to a fair trial, protection against arbitrary arrest or detention, etc. The covenant obliges the signatory nations to respect, protect and fulfil these rights for all the individuals within their jurisdiction. India has ratified ICCPR and ICESCR. Several articles of ICCPR discuss protection from conviction for offences. Some of them are as follows:

Article 9 of the Indian Constitution

It states that all persons have the right to liberty and security. No one shall be subjected to arbitrary arrest or detention. No human being shall be deprived of his liberty except on the grounds and in accordance with procedure established by law. Further, anyone who is arrested shall be informed of the reasons for his/her arrest during the time of arrest. He/she shall also be informed of the charges laid down against him/her. As given under our Code of Criminal Procedure (CrPC), ICCPR also states that anyone who is arrested or detained on a criminal charge shall be brought before a judge or authorised officer promptly. 

Article 10 of the Indian Constitution

Article 10 of ICCPR states that all those who are deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. It states that the accused persons should be kept segregated from the convicted persons and shall not be treated equally to the convicts. 

Article 14 of the Indian Constitution

Article 14 mandates equal treatment before the courts and tribunals. While determining any criminal charge against a person, he shall be entitled to a fair and public hearing by a competent, independent and impartial court established by law. Further, everyone charged with a criminal charge shall be presumed innocent until proven guilty. Similar to Article 20(3) of the Indian Constitution, Article 14(3)(g) of ICCPR mandates that no person shall be compelled to testify against himself or to confess his guilt. Furthermore, Article 14(6) of ICCPR requires that, if a person has been convicted of a criminal offence and later when his conviction has been reversed, or he has been pardoned on the ground that a new or newly discovered fact shows that there has been a miscarriage of justice, the individual who has suffered the punishment of such conviction shall be compensated as per the law. Similar to Article 20(2) of the Indian Constitution, Article 14(7) of ICCPR asserts that no one shall be tried or punished twice for an offence for which he has already been convicted or acquitted in accordance with the law. 

Article 15 of the Indian Constitution

It states that no person shall be considered guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. This Article resonates with Article 20(1) of the Constitution of India. 

Universal Declaration of Human Rights (UDHR)

The Universal Declaration of Human Rights (UDHR) is a key document in the history of human rights adopted by the United Nations General Assembly on December 10, 1948. It represents a global consensus on the fundamental rights and freedoms to which all human beings are inherently entitled, regardless of race, nationality, religion, gender, or any other status. The UDHR serves as a common standard of achievement for everyone and all nations. It has also been translated into over 500 languages, making it the most translated document in the world. India has been a signatory to the UDHR since 1949. The UDHR discusses human rights encompassing civil, political, economic, social and cultural rights. Some of the key provisions are as follows: 

Article 9 of the Indian Constitution

It states that no person shall be subjected to arbitrary arrest or detention. 

Article 10 of the Indian Constitution

It states that everyone is entitled to a fair and public hearing by an independent and impartial court for the determination of his rights and obligations and of any criminal charge against him. 

Article 11 of the Indian Constitution

It states that everyone has the right to be presumed innocent until proven guilty according to law in a public trial. Further, it states that no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence at the time when it was committed. The same principle is enshrined under Artice 20(1) of the Indian Constitution. 

Landmark cases

State of Bombay v. Kathi Kalu Oghad (1961)

The case of State of Bombay v. Kathi Kalu Oghad (1961) is a landmark case in Indian criminal jurisprudence with implications for criminal justice and the protection of fundamental rights of accused persons. 

Facts

Kathi Kalu Oghad, along with Champraj, was accused of the murder of the victim, namely Popat Ramji, in the state of Bombay. Upon arrest, Oghad was taken into police custody and was asked to rewrite the contents of the chit discovered on the crime site. After forensic examination, it was found out that Oghad had written an incriminating chit. Champraj and Oghad were prosecuted jointly and were convicted of murder and given life imprisonment. While appreciating the evidence, the court excluded the handwriting specimens from the admissible evidence. Oghad argued that the police violated his constitutional right to remain silent under Article 20(3) of the Constitution by compelling him to provide his handwriting specimens while in custody. Despite the absence of clear evidence of coercion by the police, the court acknowledged the possibility of compulsion. The High Court concluded that the identification of Oghad had not been proven beyond a reasonable doubt. Hence, the court acquitted him. The State of Bombay appealed the acquittal to the Supreme Court, raising questions regarding the extent of Article 20(3) of the Constitution. 

Issues

This case raised several questions with regard to the interpretation of Article 20(3) of the Constitution. The issues are as follows:

1. Whether providing specimen handwriting while in police custody constitute self-incrimination under Article 20(3)?
2. Whether compulsion can be presumed when the accused provides a statement or evidence during police custody?
3. Whether merely providing handwriting specimens make the accused a ‘witness against himself’? 
4. Whether investigative actions taken by police, such as collecting Deoxyribonucleic acid (DNA), fingerprints, handwriting samples, etc., align with the constitutional principles and the protection against self-incrimination?

Judgement 

The Hon’ble Supreme Court reconsidered the case of M.P. Sharma v. Satish Chandra (1954), which affirmed that the accused of any crime shall not be compelled to provide incriminating information against himself. It was also reiterated that Article 20(3) would apply to the production of documents as well as oral testimony. The Supreme Court in the M.P. Sharma case held that evidence could be furnished “through lips or by the production of a thing or of a document or in other modes”. However, in the Oghad case, the Supreme Court limited the scope of Article 20(3) and held that the scope of being a witness is limited to providing oral or written statements which conveyed the personal knowledge of the accused. The protection under Article 20(3) extends to “compelled personal testimony”. Through this decision, it can be implied that the Supreme Court indicates that fingerprints, specimens of handwriting, DNA, etc, are not protected under Article 20(3).  

Nandini Satpathy v. P.L. Dani & Anr. (1978)

Nandini Satpathy v. P.L. Dani & Anr. (1978) is one of the most cited cases under Article 20(3) of the Constitution, which discusses the right against self-incrimination and the right to remain silent. This right is recognised in India under Article 20(3) as well as Section 161(2) of the Code of Criminal Procedure, 1973. 

Facts

The appellant, Mrs. Nandini Satpathy, former Chief Minister of Odisha, was called to Vigilance Police Station, Cuttack, in connection with a case registered against herself and her sons under the Prevention of Corruption Act, 1988. An FIR was filed against them on the grounds of acquiring disproportionate assets during her tenure. During interrogation, she was handed a questionnaire and was asked to answer the questions orally. She did not answer a few questions and remained silent, exercising her right against self-incrimination under Article 20(3) of the Constitution. Upon her refusal to answer the questions, she was booked under Section 179 of the Indian Penal Code, 1860, which deals with the offence of refusal to answer a public servant on a subject matter. Mrs. Satpathy challenged the charges against her. After not receiving a favourable outcome from the High Court, she appealed to the Supreme Court. 

Issues

1. Whether suspect of an offence is entitled to remain silent, similar to ‘accused of any offence’?
2. Whether the right against self-incrimination is available only with reference to a particular accusation in regards to which the police is investigating, or does it extend to other pending or potential accusations outside the purview of the particular accusation which has led to the questioning?
3. Whether the right to remain silent is available only in court or during an investigation as well?
4. What are the parameters of Section 161(2) of CrPC?

Judgement

The Hon’ble Supreme Court cited the case of Pakala Narayana Swami v. Emperor (1939) and concurred with its judgement, holding that ‘any person’ includes a suspect who is believed to be aware of the facts of the case by the police. Further, the court held that a person has the right to remain silent and is available to the accused not just in the courtroom but out of the courtroom as well. To explain the ambit of Article 20, the court cited the case of M.P. Sharma and stated that Article 20(3) applies in the courtroom as well as during police investigations. The court settled the debate by holding that, if, under Section 161(2) of CrPC, there is a possibility that the question asked during interrogation is self-incriminatory, then such a question need not be answered by the witness. 

Selvi v. State of Karnataka(2010)

Selvi v. State of Karnataka (2010) is a landmark case that discussed the constitutionality of using neuroscientific investigative techniques such as narcoanalysis, brain mapping, polygraph tests, etc. during the investigation. 

Facts

The Hon’ble Supreme Court allowed a Special Leave Petition (SLP) concerning objections raised regarding the involuntary use of neuro-scientific tests such as narco analysis, BEAP (Brain Electrical Activation Profile) and polygraph tests. The narco analysis test involves the intravenous administration of the drug sodium pentothal, which causes a hypnotic trance, allowing the subject to become less inhibited. The BEAP measures the brain activity in response to a selected stimulus to determine if the subject is familiar with certain information. Further, the polygraph test measures the physiological responses, including respiration, blood pressure, pulse, etc. to measure lying or deception by the subject. 

Issues

1. Whether the involuntary administration of the said techniques violate the ‘right against self-incrimination’ guaranteed under Article 20(3) of the Constitution?
2. Whether the involuntary administration of the said techniques is justified as a reasonable restriction on ‘personal liberty’ in the context of Article 21 of the Constitution?

Judgement

The Court held that compulsory administration of neuroscientific tests against the consent of the accused amounts to testimonial compulsion and violates the right against self-incrimination guaranteed under Article 20(3) of the Constitution. Further, the Court held that other than the standard laid down under Article 20(3), the compulsory administration of neuroscientific tests needs to meet the standard of ‘substantive due process’ for restricting the personal liberty of a person. Lastly, the Court held that no neuroscientific tests could be administered to an accused without his/her consent. The consent of the accused shall be obtained before a Judicial Magistrate in the presence of the accused’s lawyer. The statement made would be considered a mere statement and not a confessional statement. 

Tofan Singh v. State of Tamil Nadu (2020)

Tofan Singh v. State of Tamil Nadu (2020) is a 3-judge Bench judgement which discusses the usage of confessions recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter mentioned as “NDPS Act”) as evidence against the person. 

Facts

The current case arose after the arrest of four persons, including the appellant by the Narcotics Control Bureau (NCB) officers under the NDPS Act, 1985 for possession and transportation of narcotic drugs. The officers exercised their powers under Section 67 of the NDPS Act to record a confession of the appellant. Section 67 empowers the officers conducting inquiries to call any person for interrogation who may be in connection with violations of the Act. Despite the appellant retracting his confession later, the Additional Special Court under the NDPS Act admitted the confession as evidence and convicted him. Aggrieved by the decision, the appellant approached the Madras High Court, arguing that he was convicted solely on the basis of his retracted confessional statement recorded by the NCB officers. The Madras HC rejected his plea and dismissed the appeal. The appellant appealed the same before the Supreme Court. 

Issues

1. Whether the officers empowered under the NDPS Act would be considered as ‘police officers’ within the meaning of Indian Evidence Act, 1872 or not?
2. Whether any confessions recorded by such officers would attract Section 25 of the Evidence Act, which states that any confessions made to police officers is not admissible as evidence in the Court or not? 
3. Whether the usage of confessions recorded under Section 67 of the NDPS Act as evidence violates Articles 20(3) and 21 of the Constitution or not?

Judgement

The Court held that a person’s right against self-incrimination and right to privacy would be applicable against confessions recorded under Section 67 of the NDPS Act. Hence, confessions recorded by the NCB officers would not be admissible as evidence. The Court further held that the officers empowered under the NDPS Act would also be considered as ‘police officers’ within the meaning of Section 25 of the Evidence Act and providing exceptions to certain officers under some penal statutes directly violates the right to equality, privacy and the right against self-incrimination under Article 14, 21 and 20(3) of the Constitution. 

Conclusion

When India was under British rule, the rights of Indians were often restricted and they faced many injustices. Prevention of such abuses of power against persons, who are accused of commissioning any offence, from happening again was of paramount importance, hence, Article 20 was included as a fundamental right in the Constitution. In today’s world too, the right to protection in respect of conviction for offences remains incredibly relevant as it protects individuals from self-incrimination and ensures fair treatment under the law. Moreover, in the digital age, Article 20 has become more significant because of the usage of new methods such as the NARCO Analysis Test, Brain Electrical Activation Profile (BEAP), etc. by the police to extract information or confession from accused against their will and consent and use the same against them in their prosecution. Article 20 works as an essential constitutional safeguard towards maintaining the rule of law and ensuring a just society. The Supreme Court of India has played a pivotal role in safeguarding the rights under Article 20 of the Constitution through various judgements. Supreme Court’s proactive approach in expanding the scope of protection through cases like Selvi and ensuring a delicate balance between the rights of both victim and accused through cases like Kathi Kalu Oghad is applaudable. As an emerging superpower and a responsible member of the global community, adhering to universal principles of human rights not only demonstrates India’s commitment to uphold International law but also reflects its reputation as a democratic and progressive nation. As we realise the importance of Article 20, we must not forget the words of Mahatma Gandhi – “The true measure of any society can be found in how it treats its most vulnerable members.”

Frequently Asked Questions (FAQs)

What is the right against self-incrimination under Article 20?

The right against self-incrimination is protected under Article 20(3) of the Constitution of India. It prohibits an accused person from being made a witness against himself.

Like the USA, does the right to remain silent apply in India?

Yes, the right to remain silent is guaranteed under Article 20(3) of the Constitution. 

Why Article 20 cannot be suspended even during an emergency?

Articles 20 and 21 are non-derogable rights that protect the fundamental rights of the citizens, such as protection from conviction of offences and the right to life and liberty. The 44th Amendment Act, 1978 restricted the scope of the President’s powers under Article 359 and established that no person can be deprived of his right to life and liberty even during an emergency.

References

• Indian Constitutional Law by MP Jain.
• V.N. Shukla’s Constitution of India.
• https://ijtr.nic.in/articles/art19.pdf 
• https://indconlawphil.wordpress.com/tag/article-203/ 
• https://indconlawphil.wordpress.com/2014/09/14/privacy-self-incrimination-and-article-203-i/ 

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