Right of Freedom: Article 20 | Constitutional Law - CLAT PG PDF Download

Ex Post Facto Law, Double Jeopardy, and Right Against Self-Incrimination (Article 20) 

Article 20 of the Constitution of India is designed to protect the rights of individuals accused of crimes, whether they are citizens or non-citizens, including corporations. This article cannot be suspended even during a state of emergency under Article 359. Article 20 limits the legislative powers of both the Union and State Legislatures and consists of three clauses that offer protection regarding conviction for offenses:

(a) Ex-post facto laws [Art. 20(1)]. 
(b) Double jeopardy [Art. 20(2)]. 
(c) Self-incrimination [Art. 20(3)]. 

Art. 20 (1): Ex-Post Facto Law 

According to Article 20(1), no person shall be convicted of any offense except for the violation of a law in force at the time of the commission of the act charged as an offense. Additionally, no person shall be subjected to a penalty greater than what could have been imposed under the law in force at the time of the commission of the offense. This means that the legislature is prohibited from enacting criminal laws with retrospective effect.
Article 20(1) does not apply to trials, civil liabilities, preventive detention cases, or disciplinary proceedings.

Prohibition Against Enacting Ex Post Facto Penal Law 

• This means that if an act or omission was innocent when done, the legislature cannot make a law that retroactively declares such act or omission a crime. The legislature is not allowed to create laws that punish acts or omissions committed before the law came into force.
• For example, if bringing gold into India was not an offense at the time, and a law was enacted in 1970 making the import of gold into India an offense retroactively applying to 1960, such a law would be considered a retrospective criminal law, which is not allowed by the Constitution.
• Therefore, an act can only be considered an offense if it is made punishable by a law that is in force at the time of the act. Individuals are only expected to be aware of the laws that are in force at the time they commit an act. The principle of 'ignorance of the law is no excuse' does not apply in these situations.
• In the case of Transmission Corporation, A.P. v Ch. Prabhakar, the Supreme Court addressed the question of whether Article 20(1) prohibits legislation that increases the degree of crime or allows for greater punishment, even if it also permits the same punishment under the new law as under the prior law. The court considered whether the new law deprives the accused of any substantial right or immunity that existed at the time of the commission of the offense.

Prohibition Against Conviction 

• Article 20(1) not only prevents the legislature from enacting ex post facto laws that deprive individuals of the protections granted by this article but also stipulates that no person shall be convicted of an offense based on such laws. 
• This means that courts are also prohibited from convicting individuals based on laws that violate the protections outlined in Article 20(1).

Benefit of Reduction in Punishment 

• Article 20(1) does not prevent the accused from benefiting from a reduction in punishment, such as modifications to the severity of a criminal law. The principle of beneficial construction allows for the application of an ex post facto law to reduce punishment.
• For instance, in a case where a 16-year-old boy was sentenced to six months of rigorous imprisonment for house trespass and outraging the modesty of a girl, and later the Probation of Offenders Act, 1958 was enacted, which stated that a person below the age of 21 should not normally be sentenced to imprisonment, it was ruled that the ex post facto law, which was advantageous to the accused, did not fall under the prohibition of Article 20(1) (Ratan Lal v State of Punjab AIR 1965 SC 444).
• It is important to note that the Probation of Offenders Act was not a penal statute; rather, it was a social welfare legislation aimed at reforming offenders. Penal laws, on the other hand, typically have a prospective operation. In the mentioned case, the accused boy could not benefit from the legislation.

Art. 20(2): Double Jeopardy 

Article 20(2) states that "no person shall be prosecuted and punished for the same offense more than once." The principle of double jeopardy is also recognized in Section 26 of the General Clauses Act and Section 300 of the Criminal Procedure Code (Cr. PC). The purpose of this principle is to prevent the harassment that would occur if a person were subjected to multiple criminal proceedings for a single crime.

Definition of Double Jeopardy 
Double jeopardy is a legal concept that protects individuals from being tried and punished more than once for the same offense. It is rooted in the common law maxim "nemo debet bis vexari," meaning "no man shall be put twice in peril for the same offense." The U.S. Constitution also includes a similar provision, stating that "no person shall be twice put in jeopardy of life or limb."
Double jeopardy has two key aspects:

(a) Autrefois Convict:  This aspect of double jeopardy asserts that a defendant cannot be tried again for the same offense if they have already been convicted for it.

(b) Autrefois Acquit:  This aspect allows a defendant to argue that they cannot be tried for the same offense if they have been acquitted of it in a previous trial.

• In U.S. law, double jeopardy protection applies not only against a second punishment but also against a second trial for the same offense, regardless of whether the accused was acquitted or convicted in the first trial.
• In India, Article 20(2) protects individuals from being prosecuted and convicted more than once for the same offense. Both prosecution and punishment must occur simultaneously for Article 20(2) to apply. If a person is acquitted after prosecution, they can be prosecuted again for the same offense. In this sense, Article 20(2) only includes the principle of "autrefois convict" and does not encompass "autrefois acquit." Therefore, it is narrower than the American and English doctrine of double jeopardy.

Administrative and Departmental Proceedings 

• The protection offered by Article 20(2) is applicable only in cases where punishment is imposed by a court of law or a judicial tribunal. In this context, "prosecution" refers to the initiation of any criminal proceedings before a court or judicial tribunal.
• For instance, a government servant who is prosecuted and convicted by a court of law can still face punishment through departmental proceedings for the same offense. Similarly, a person fined under the Customs Act can be prosecuted under the Foreign Exchange Regulation Act because the customs authority is not a court, as established in the case of Maqbool Hussain v State of Bombay AIR 1953 SC 325. Additionally, an inquiry and subsequent dismissal of a government servant do not prevent prosecution for an offense under the Indian Penal Code or the Prevention of Corruption Act. This is because an inquiry is not considered prosecution in a court, and disciplinary action is not a punishment imposed by a court, as clarified in the case of S.A. Venkataraman v UOI AIR 1954 SC 375.

Double Jeopardy and Res Judicata/Issue Estoppel 

• Res judicata, meaning "the thing has already been decided," is a legal principle embodied in Section 11 of the Code of Civil Procedure. It asserts that when an issue of fact has been tried and decided by a court on a previous occasion, the finding is final and binding on both parties and cannot be raised again. This principle applies to both civil and criminal trials.
• Since res judicata is based on the identity of issues in two trials, it is also known as the "doctrine of Issue Estoppel." This doctrine prevents evidence from being presented to prove a fact in issue when evidence has already been presented, and a specific finding has been recorded in favor of the accused at an earlier criminal trial.
• While Article 20(2) bars "double punishment," the rule of Issue Estoppel bars the "reception of evidence" on an issue that was decided in favor of the accused in a previous trial. Article 20(2) is only applicable if the "offense" is the same in both prosecutions.

 Art. 20(3): Protection Against Self-Incrimination 

• Article 20(3) of the Indian Constitution states that "no person accused of any offense shall be compelled to be a witness against himself." This provision protects the accused from being forced to incriminate themselves, such as making a statement that makes the case against them more probable, even if considered in isolation. This protection extends to natural persons as well as corporations and other entities.
• This clause is based on the legal maxim "nemo tenetur prodere accussare seipsum," which means "no man is bound to accuse himself." The principle behind this protection is that the accused is presumed innocent until proven guilty, and it is the prosecution's responsibility to establish their guilt. Therefore, the accused is not required to make any admission or statement against their will.
• Article 20(3) aims to prevent the torture of accused individuals by investigative agencies to extract confessions. Historically, in the 18th century in England and in the 20th century in countries like communist Russia, Nazi Germany, and others, torture was a legal practice. The Universal Declaration of Human Rights, in Article 5, declares that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Person Accused of an Offense 

• The immunity provided under Article 20(3) is available only to individuals who are "accused of an offense." For example, in the case of M R Sharma v Satish Chandra AIR 1954 SC 300, the Supreme Court ruled that a person cannot claim this protection if they were not an accused at the time of making the statement but became an accused later. Unlike in the United States and England, the protection in India is limited to the accused and does not extend to other witnesses.
• In the case of Nandini Sathpathy v PL Dani (AIR 1978 SC 1025), during an investigation, the accused was interrogated with a list of questions. She refused to answer these questions, citing Article 20(3) as protection. The Court held that this protection extends back to the stage of police investigation, not just to court proceedings. Such inquiries are considered accusatory in nature. Furthermore, the right against self-accusation and the "right to silence" apply not only to the specific case but also to other offenses, pending or imminent, to prevent the accused from voluntarily disclosing incriminating information.
• Article 20(3) guarantees that no individual accused of an offense can be forced to testify against themselves. The right to remain silent is an extension of civil liberty as enshrined in the Constitution. When interpreting retracted confessions, courts must be cautious, considering the guarantee under Article 20(3) and humanizing standards under Article 21. Retracting a previous statement should be viewed in light of the right to remain silent as a civil liberty. This principle was reinforced in the case of Aloke Nath Dutta v State of West Bengal (2007) 12 SCC 230.