article 20
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This Article is written by Dhruv Vatsyayan. He is pursuing his B.A.LL.B. at Law School, Banaras Hindu University and is in his first year. In this article, he discusses provisions for Protection in respect of conviction for offences with a special focus on Article 20 of the Indian Constitution.

Introduction

Every day in our daily lives, we come across various news reports where someone is being accused of some offence(s).

The basic question which every legal enthusiast faces on coming across these is whether there is some sort of fundamental rights or protection for the accused ones or ones to be presented before courts for trial.

Our great Constitution makers must have also faced the same question and dilemma at the time of framing of the constitution. Thus, to deal with the same, Article 20 was included in Part III of the Indian Constitution.

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 is among those Articles of the Indian Constitution, which can’t be put aside even during an emergency. Thus, forms a cornerstone of the Indian Constitution.

Now, let’s do a survey of three legal doctrines of the Indian Criminal jurisprudence, which reflects the three clauses of the Article 20, i.e. Ex-post facto law, Doctrine of Double Jeopardy and Prohibition against self-incrimination.

Provision against Ex post facto law: Clause (1) of Article 20

The provision in question, i.e. Article 20 (1) says that one must not be prosecuted and convicted in accordance with those laws which didn’t exist at the time of the commission of the offence by the accused and also must not be inflicted with punishments greater than those existing at the time of commission.

This provision negates the chance of retrospective implementation of laws regarding criminal offences. In simpler speak, this provision brings a clampdown to the legislative prerogative of the legislation by prohibiting retrospective implementation of a law having criminal nature.

Illustration

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.

Though the legislation in India has the authority to implement laws retrospectively this clause prohibits the Legislature to enact 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 case of Kedar Nath v. State of West Bengal. In this case, the Hon’ble Supreme Court of India observed that, whenever an act is declared as a criminal offence and/or provides penalty for same by the legislature, it is always prospective in nature and can’t be implemented retrospectively to uphold what is being said under Article 20 (1).

However, only the procedure of sentencing and convicting is what is prohibited under this clause, and not the trial itself. Thus, a person accused according to a particular procedure can’t be questioned under this clause and doctrine of Ex post facto law.

Dealing with a similar situation, in the case of Mohan Lal v. State of Rajasthan (AIR 2015 SC 2098) which involved Narcotics, Drugs and Psychotropic Substances Act, the court opined that, only conviction and/or punishments under an ex post facto law is prohibited under Article 20 and not the trial or prosecution itself. Also, trial under a different procedure than what existed during the commission of the act doesn’t come under the ambit of the same and can’t be struck down as unconstitutional.

In another important judgement in case of Maru Ram Etc. vs Union Of India & Anr (1980 AIR 2147), the Court observed that Article 20 (1) also includes the rule that there will be no retrospective infliction of penalties heavier than those existing ones at the time of commencement of the offence.

However, an exception also exists to the restriction under this provision. In the case of Rattan Lal v. the State of Punjab, the Hon’ble Supreme Court allowed for such retrospective implementation of Criminal Laws, where the issue pertinent is, reduction of punishment in the said offence. Now, let’s discuss the Doctrine of Double Jeopardy.

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Double jeopardy: Clause (2) of Article 20

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. 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.

However, the prosecution may happen if the facts are distinct in subsequent proceedings. Same was established by the Supreme Court of India in case of A.A. Mulla v. State of Maharashtra and 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 CrPC which says that someone who had been convicted/prosecuted by a competent court for some offence will not be liable to be prosecuted again till the previous conviction/acquittal remains in force. Thus, prohibiting from a conviction for the second time, for the same offence and on the same set of facts. This provision does devise a rule for where the second trial is permissible and where not.

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.

Nonetheless, there exists an exception to this provision, i.e. the Principle of Issue Estoppel. The above-mentioned exception provides for estoppel against the ongoing prosecution if the fact-finding happens to be in favour of accused but it does not bar from subsequent proceeding for a different offence. However, to invoke this defence, not only the parties involved but the facts in issue should also be the same. Landmark case for the same is Ravinder Singh v. Sukhbir Singh.

As we’re done with Doctrine of Double Jeopardy, let’s now discuss Prohibition against self-incrimination.

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.

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.

Let’s understand this with an illustration;

Let us suppose that there is some Mr Jones, who is being tried for an offence of murder of his stepbrother and while in police custody, he says that “I have killed my stepbrother”.

Same could be admissible in court under section 27 of Evidence Act and doesn’t violate Article 20 (3), but it is upon the prosecution to find out whether the information provided is voluntary or under compulsion. 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 Narco Analysis test is frequently used by authorities to gather information and evidence and does not violate the provision under Article 20 (3).

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 Narayanlal vs Maneck, to claim the immunity from being self-incriminated, there must exist a formal accusation against the person and mere general inquiry and investigation don’t form grounds for the same.

Article 20 (3) also lays out 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 5th Amendment into it. Also, the authorities can not compel the accused to produce evidence, which can be used against his trial. Those evidence can be Oral or Documentary. However, an exception to this lies under Section 91 of CrPC which gives authority to a court or an officer to issue an order demanding documents that were under the possession of the accused. 

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

Thus, here we come to the end of the segment discussing Article 20 (3) of the Indian Constitution and other provisions providing for the prohibition against self-incrimination.

Conclusion 

If we would bother to analyse all the clauses of the Article 20 of the Indian Constitution, we would come across this interesting inference that these clauses i.e. Article 20(1), Article 20(2) and Article 20(3) reflects protection of convicted persons from 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 forms the bedrock of the Indian Constitution and guarantees basic human rights to the convicted and accused people.

Its availability even during when an emergency is being imposed under Article 352 of the Indian Constitution is what makes it unique and so much important for the discharge of democratic values.


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