This article is written by Michael Shriney from the Sathyabama Institute of Science and Technology. The article describes double jeopardy, including its origin, basics, case laws, and international perspective. It also discusses how double jeopardy is applied.
It has been published by Rachit Garg.
The doctrine of double jeopardy is a legal defence that protects an accused/defendant from being tried again for the same accusations and facts after a lawful acquittal or conviction. Double jeopardy is a doctrine from the Indian Constitution, specifically Article 20(2), which deals with and specifies the meaning of the double jeopardy doctrine. It has been incorporated as a part of our basic right by the founders of the Indian Constitution under Part III. The criminal justice system works on the assumption of some principles where no compromise is acceptable, such as the double jeopardy principle, in which values are defended by the system.
In general, Article 20 of the Indian Constitution deals with the protection from criminal convictions. There are three safeguards in place to keep an accused person from being convicted, namely, ex post facto law [Article 20(1)], double jeopardy [Article 20(2)], and self-discrimination [Article 20(3)].
The Fifth Amendment to the United States Constitution includes a double jeopardy provision. Double jeopardy is exclusively used in criminal courts, and does not prohibit defendants from being charged in a civil court for the same offence. The origins, essentials, circumstances under which this doctrine cannot be applied, international perspective with other nations, and case laws are all covered in detail in this article.
Protection against a conviction
Article 20 of the Indian Constitution deals with protection in the case of a conviction for a crime. It relates to the right to freedom, which is one of the fundamental rights granted by the Indian Constitution. Articles 19, 20, 21A, and 22 protect the right to liberty. Article 20 is a part of the right to freedom, as it establishes three types of safeguards for accused criminals, which are as follows:
Ex post facto law [Article 20(1)]
An ex post facto legislation is one that imposes punishments or convictions on already committed offences and increases the punishment for such acts. This is based on the Constitution of the United States of America. It also has a retrospective effect. It means when a law enforces a penalty or punishment for an act that was not subject to punishment at the time of the commission of the offence, or enforces an extra penalty to what was prescribed at the time of the commission of the offence, or when there is a change in the rule of evidence or procedure that requires conviction.
Double jeopardy [Article 20(2)]
The doctrine of double jeopardy is a rule that states that no one should be put twice in peril for the same offence. “No individual shall be arrested and punished for the same offence more than once,” the Indian Constitution said in article 20(2). The doctrine evolved from the Fifth Amendment of the United States Constitution, however, there are differences between the United States and England. In India, the scope of protection is restricted. The doctrine existed in India prior to the Constitution of India, as evidenced by the General Clauses Act of 1897, Sections 26 and 300 of the Criminal Procedure Code of 1973.
Self-discrimination [Article 20(3)]
Self-discrimination is prohibited because “no person accused of any offence will be compelled to be a witness against himself,” according to the law. It is based on the maxim ‘Nemo tenetur prodere accusare seipsum,’ which says that no one is obligated to blame oneself. It relates to the admissibility of confessions made under pressure, which are not allowed to be used as evidence. Furthermore, no one will be required to make remarks against oneself that are considered self-harming or confessional statements.
Grounds for applicability of the doctrine of double jeopardy
In legal terms, jeopardy refers to the danger that defendants in criminal cases suffer, such as jail time or penalties. In three situations, double jeopardy has been stated as a valid defence:
- First and foremost, the individual must be charged with a crime. In the General Clauses Act of 1897, the term ‘offence’ is defined. Any act or omission that is criminal under the law in force at the time.
- Before a court or a judicial tribunal, the investigation or proceeding must have occurred.
- In the prior process, the person must have been arrested and punished.
- The offence must be the same as the one for which he was previously convicted and sentenced.
Conditions where the doctrine of double jeopardy does not apply
The double jeopardy clause’s protection may not always be applicable. The courts have evolved some principles for determining the application of double jeopardy as a valid defence, mostly through legal interpretations over history.
- Civil lawsuit: Double jeopardy is a defence that can only be used in criminal court and cannot be used in civil court. The defendant cannot defend himself against punishment in civil court for the same crime committed in criminal court. For example, if ‘A’ killed ‘B’ in a drunk and drive case, ‘B’s family can sue in both civil and criminal courts. They can sue in civil court to recover the ‘B’s financial damages. In a civil proceeding, ‘A’ cannot defend himself with double jeopardy to protect him from punishment for his crime. However, he could use double jeopardy to defend himself in criminal court.
- Jeopardy must begin: The executive authorities must first put the defendant in jeopardy before applying the double jeopardy doctrine. This requires that defendants must be tried first before claiming double jeopardy doctrine as a defence. After the trial jury is called in, jeopardy begins or attaches to the case.
- Jeopardy must end: Jeopardy must begin and conclude in the same way. To put it another way, before the double jeopardy doctrine may be utilised to prevent the defendant from being arrested and punished for the same offence, the case must come to a conclusion. When a judge enters an acquittal judgement before submitting the matter to the jury or when the sentence has been served. When the court renders a decision, jeopardy is usually over.
Origin of the doctrine of double jeopardy
The word ‘double jeopardy’ comes from the English common law rule ‘Nemo bis punitur pro eodem delicto,’ which means “no one should be punished twice for the same offence.” The word ‘double jeopardy’ comes from the common-law rule ‘Nemo debet bis vexari,’ which means “a man must not be put in peril twice for the same offence.” In simple terms, it implies ‘penalty twice’ or “punishment given more than once for the same offence.”
There is no specific origin for this doctrine, which is mentioned in one court and appears to be part of the common law in England in addition to every other system of jurisprudence, concluding that it does not have a beginning and has always existed. The doctrine of double jeopardy was known to the Greeks and Romans, and it was eventually acknowledged in Justinian’s Digest as the rule that the governor should not allow the same person to be charged for a crime for which he had previously been tried and convicted. The criminal procedure at the time was different from what we have now, with the defendant subject to arrest by the prosecutors within 30 days following acquittal.
The doctrine of double jeopardy in the Magna Charta has not been discussed, nor can it be interpreted by implication. Continental and English systems have drawn the doctrine of double jeopardy from the shared source of Canon law. As early as 847 A.D., Canon law stated that no one, not even God, can be judged again for the same offence. This idea has been incorporated into Roman law through the Justinian Code.
Double Jeopardy was also recognised as a constitutionally protected right in a number of nations, including the United States, Canada, Mexico, and India. In India, double jeopardy existed in the form of Section 403 (1) of the old Code of Criminal Procedure, which has now been replaced by Section 300 Amendment, and Section 26 of the General Clauses Act of 1897. This doctrine existed before the formation of the Indian Constitution. Article 14(7) of the International Covenant on Civil and Political Rights, Article 4(1) Protocol 7 of the European Convention on Human Rights, and Article 50 of the European Union Charter of Fundamental Rights are all recognised as international documents.
If a person has been tried for an offence in the United States or England, he cannot be tried for the same offence twice, whether or not he was acquitted in the first trial. However, in India, a person who has been convicted and acquitted might be prosecuted and punished again under Article 20(2). If he or she was prosecuted and convicted for an identical crime, he or she might use Article 20(2) as a defence. Article 20(2) of the Constitution provides protection against double jeopardy. It states that no one shall be arrested and punished more than once for the same offence.
Judicial perspective on the doctrine of double jeopardy
The courts in India have made certain observations relating to the doctrine through their judgements in various cases, the courts state that the doctrine of double jeopardy is embedded the maxim, ‘nemo debet bis vexari si constat curiae quod sit pro una et eadem causa’, which means that no one should be vexed twice if it appears to be for the same cause. The court declared this in the case Union of India v. P.D. Yadav (2001). There were certain details of the concept that the courts examined and defined in later decisions.
The judgements make it clear that an investigation is not the same as a prosecution. This was asserted in the case Venkataraman v. Union of India (1954), where the accused was subjected to an investigation by the inquiry commissioner after being fired from his job. Following his discharge, he was accused of violating the Indian Penal Code, 1860 and the Prevention of Corruption Act, 1988. He argued double jeopardy, but the Supreme Court decided that the investigation conducted by the inquiry commissioner to end his employment was not prosecution and therefore the charges may be brought, and the defence of double jeopardy was dismissed.
The doctrine of double jeopardy, on the other hand, may only be used when the punishment is for the same offence. The doctrine cannot be applied if the offences are of a different nature, as mentioned in the case Leo Roy v. Superintendent District Jail (1957), where the Supreme Court stated that even though the person had been tried and convicted under the Sea Customs Act, 1878 they could be put on trial again under the Indian Penal Code, 1860 because there were two distinct charges and offences.
In the case of a continuous offence, each day when a person commits a crime is considered as a separate crime, and the accused may be punished separately for each one. This does not constitute double jeopardy, as the High Court of Judicature at Allahabad determined in the case of Mohammad Ali v. Sri Ram Swaroop (1963).
Case laws regarding the doctrine of double jeopardy
Maqbool Hussain v. State of Bombay, 1953
Facts of the case
In this case, the Petitioner, an Indian citizen, travelled from Jeddah to Bombay’s Santa Cruz Airport. He didn’t indicate that he had taken 1250.361 grams of gold with him when he landed, but when he was searched, he was discovered in violation of the Indian government’s notification. The gold was seized by the Customs Authorities under Article 167, Clause (8) of the Sea Customs Act VIII of 1878. The gold owner, however, had the option of paying a fine of 12,000 rupees, which had to be paid within four months of the order’s date. The Appellant received a copy of the order, but no one came forward to claim the gold. The Supreme Court of India ordered that the plea be considered by the Bank of the Constitution, together with Criminal Appeal , because the same issue was made in reference to “autrefois convict” or “double jeopardy.”
Issues involved in the case
The question is whether the Sea Customs Act, 1878 and the order of Court or the Judicial Tribunal can be used to support a plea of double jeopardy.
Judgement of the Court
The prosecution under the Foreign Regulation Act, 1947 was upheld because the previous detention under the Sea Customs Act,1878 did not constitute a judgement or order of a court or judicial tribunal to support the argument of double jeopardy.
Kalawati v. State of Himachal Pradesh,1953
Facts of the case
In this case, the accused (plaintiff) murdered her spouse (defendant) in order to protect her from the cruelty. The fact is that she was attempting to protect herself from cruelty after being abused by her husband. In this instance, the accused killed her husband in reaction to his harassment. She was acquitted owing to a lack of evidence. However, the state eventually filed an appeal against her at the Higher Court.
Issues involved in the case
The question is whether the right to appeal under Article 20(2) of the Constitution violates this case.
Judgement of the Court
The Supreme Court decided that the appeal is a continuation of the prior trial rather than a new trial for the same offence, and that the appeal against the acquittal judgement would not be subject to Article 20(2) as there was no penalty in the earlier trial. Thus, an appeal against an acquittal order in a murder trial would not violate Article 20(2) of the Constitution.
Thomas Dana v. State of Punjab, 1959
Facts of the case
In this case, the two petitioners were detained by the police while attempting to smuggle a large amount of Indian and foreign currency as well as other illegally imported goods out of India, and the Collector of Central Excise and Land Customs issued orders confiscating the seized goods and enforcing heavy personal penalties on both of them. The Additional District Magistrate convicted and punished the petitioners. This resulted in an appeal to the Supreme Court.
Judgement of the Court
The Supreme Court decided that in order to request protection under Article 20 (2), the following requirements must be met.
- That there was a previous prosecution.
- As a result of this the accused was punished.
- That the punishment was for the same offence.
International perspective of the doctrine of double jeopardy
All common-law nations contain double jeopardy provisions in their laws, though some have made it essential to include it in their Constitutions, while others have included it in their legislation. Though its origin is so common, it has been discovered that its interpretation and execution have been varied.
After the murder of Stephen Lawrence, the Macpherson Report suggested that the double jeopardy rule be repealed in murder cases and that it should be permissible to retry an acquitted murder suspect if “fresh and valid” new evidence becomes available later. In its report ‘double jeopardy and Prosecution Appeals’, the Law Commission eventually backed this conclusion in 2001. If “new, compelling, reliable, and significant evidence” is discovered that was not previously known and comes to knowledge later, the accused suspect might be tried afresh under the new circumstances.
The doctrine of double jeopardy is mentioned in Article 103(3) of Germany’s Constitution, which prevents penalties for the same offence committed more than once under general legislation.
Article 39 of the Japanese Constitution deals with the doctrine of double jeopardy. It stated that no one can be held criminally punished for an act that was legal in the first place it was performed or for which he was acquitted, and that no one can be put in double jeopardy.
The doctrine of double jeopardy is defined by the Fifth Amendment of the United States Constitution, which covers continued prosecution after acquittal, conviction, certain procedural errors, and repeated penalties in the same accusation. The double jeopardy rule prevents the government from ‘punishing’ someone twice or seeking to ‘punish’ someone criminally for the same offence.
After a conviction, every accused individual has the option of at least one appeal. If the conviction is found unconstitutional due to a lack of evidence in an appeal, it is termed an acquittal, and no further prosecution is allowed. The doctrine of double jeopardy is dealt with under Article 20(2) of the Indian Constitution, which does not restrict the holding of a departmental inquiry either before or after the start of criminal prosecution. As a result, after a person has been convicted and punished, this doctrine is highly important to our judicial system. The doctrine has been incorporated into legal systems all across the world.
- Lectures on Constitution law- I, Dr. Rega Surya Rao.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: