Article 20 – Protection in respect of conviction for offences

In this article we made a comprehensive and detail study about Article 20 of Constitution of India i.e., protection in respect of conviction for offences, and landmark SC judgement.

 

1. Introduction

 

The Constitution of India, often hailed as the world's most extensive and detailed constitution, is the supreme law of the land. It not only lays down the framework for governance but also serves as a protector of the fundamental rights and liberties of Indian citizens. Article 20, a crucial component of Part III of the Constitution, plays a pivotal role in safeguarding the rights and dignity of individuals.

 

2. Protection in Respect of Conviction for Offences (Article 20)

 

Article 20 provides protection in respect of conviction for offences. It constitutes a limitation on the legislative power of the Parliament or State Legislatures under Article 246 read with the three Legislative lists contained in the seventh Schedule. The Protection contained in Article 20 is available to all persons. ‘Person’ in Article 20 includes a corporation which is accused, prosecuted, convicted or punished for an offence. Article 20 provides protection against-

 

A. Ex-post facto laws [Article 20(1)]

B. Double jeopardy [Article 20(2)]

C. Self-incrimination [Article 20(3)]

 

2. A. Ex-post facto laws [Article 20(1)]

 

An ex-post facto law is a law which is enacted subsequent to some occurrence i.e., the commission of some act or omission.

 

Three types of ex-post facto laws

 

(a) A law which declares some act or omission as an offence for the first time after the completion of that act or omission.

(b) A law which enhances the punishment or penalty for an offence subsequent to the commission of that offence.

(c) A law which prescribes a new and different procedure for the prosecution subsequent to the commission of that offence.

 

Clause (1) provides protection only in respect of the above first two categories

 

The first part of clause (1) of Art. 20 relates to the first category of expost facto laws:

 

It explains that a person can only be convicted of an “offence” if the charge against him is an “offence” under the “law in force” at the time of the commission of that act. It gives constitutional recognition to the principle that no one can be convicted except for the violation of a “Law in force”.

 

The term “offence” is not defined in the Constitution. Section 26 of the General Clauses act, 1897 defines the term “offence” as “an act or omission made punishable by any law for the time being in force”. Thus, something would be an offence only if that thing is made punishable by a “law in force”.

 

Art 20 (1) relates to the general principle of evidence which provides that “ignorance of law is no excuse”. It means that no person can plead as a defence, his ignorance about the law to which he is subject. No one knows what laws would be enacted in future. No one knows what act or omission would be declared punishable in future.

 

The expression “law in force” in Article 20(1) postulates the actual factual existence of law at the relevant time and it excludes the retrospective operation of any subsequent law. It means that if an act was not an offence at the time when it was committed, it cannot be an offence at the date subsequent to its commission.

 

But, (new) interpretation of a provision of law does not create any new offence. The Supreme Court in Lily Thomas Vs. Union of India, AIR 2000 SC 1650, explained that the decision of the Apex court in Sarla Mudgal Vs. Union of India, holding that the second marriage of a Hindu husband after conversion to Islam without having his first marriage dissolved under law, would be invalid, (the second marriage would be void in terms of the provisions of Sec. 494, PC, 1860) and the apostate-husband would be guilty of the offence under Sec. 494, IPC, 1860, did not lay down any new law. No new law having been created, Art 20(1) would have no application.

 

Subsequent penalty to the commission of offence-

 

Article 20(1), second part relates to second category of export facto laws. It prohibits the enhancement of punishment or penalty subsequently. It provides that “No person shall” be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The accused managing agents of a company committed an offence in 1947. Subsequently in 1949, the Criminal Law (Special Courts) Amendment Act, 1949 amended the Prevention of Corruption Act. The amended law enhanced the penalty for the offences committed under the Act by an additional fine to be equivalent to “The amount of money found to have been procured by the offender through the offence committed by him”. It was held that enhanced punishment prescribed by the amended law which came into force in 1949 could not be imposed on the accused for the offence committed in 194. Article 20(1) prohibits the enhancement of punishment or penalty for an offence retrospectively.

 

In Satwant Singh Vs. State of Punjab, Section 420 of the IPC, 1860 prescribed an unlimited fine for an offence under this provision. The Supreme Court observed that Art 20(1) was not infringed by the Ordinance, because the minimum fine prescribed by it could not be said to be greater than what could be imposed on the accused under Sec. 420 at the time at which he committed the offence. The Court explained that under Article 20(1), Law imposed a penalty greater than that which might be inflicted under the law in force at the time of the commission of the offence.

 

In Maru Ram Vs. Union of India (AIR 1980 SC 2147) the Supreme Court held section-433 A of Criminal procedure code 1974, not violative of Art 20(1) as it provided that a person sentenced to life imprisonment for an offence for which death was one of the punishments or such person would not be released from prison unless he had served at least 14 years of imprisonment. Since Section 433 – A did not enlarge punishment retroactively and that it merely prescribed a minimum sentence of 14 years imprisonment for a murderer, the Court held it not bad under Art 20 (1).

 

Art 20(1) does not prohibit the laying down any manner for the recovery of the Government dues.

 

In State of West Bengal Vs. S. K. Ghosh AIR 1963 SC 255, a government servant, committed embezzlement before August 1944, for which he was suspended. Subsequently, an Ordinance, dated August 23, 1944, was issued providing for the confiscation of the property of a person convicted for embezzlement of government money. The property of the accused was forfeited under the Ordinance. The Ordinance was held valid as it did not impose a penalty but merely provided a speedier remedy for the recovery of the embezzled money.

 

Beneficial ex-post facto laws.

 

Article 20 (1) prohibits the imposition of enhanced penalty or punishment. But it does not bar any reduction in the punishment. Thus, an ex-post facto law, which only mollified the rigour of a criminal law, does not fall within the prohibition of Article 20(1).

 

In Rattan Lal Vs. State of Punjab AIR, 1965 SC 444, the accused, a boy of 16 years of age, was convicted for committing the offence of house trespass outraging the modesty of a girl. While the accused was undergoing the sentence of imprisonment an Act came into force which provided that a person below the age of 21 years should not ordinarily be sentenced to imprisonment. The accused pleaded that he might be given the benefit of the act. The Supreme Court, held that the ex-post facto law which was beneficial to the accused did not fall within the prohibition of Article 2001). The court laid down that the rule of beneficial construction required that an expost facto law could be applied to reduce the punishment.

 

Again in T. Barai Vs. Henry Ah Hoe AIR, 1983 SC 150, the Supreme Court laid down that an accused should have the benefit of a retrospective or retroactive criminal legislation reducing punishment for an offence.

 

Procedural Ex-post Facto Law

 

Clause (1) of Article 20 does not prohibit the trial of offences under the ex-post facto laws. A law enacted subsequent to the commission of the offence, prescribing a new procedure, different from the ordinary procedure for prosecution or trial, is not hit by Article 20(1).

 

Under the American Constitution the protection is available even against ex-post facto procedural laws.

 

Imposition of Civil Liability retrospectively not barred

 

The term “penally” in Article 20(1) indicates that the prohibition contained therein applies only where punishment imposed for offences is criminal in nature. It does not prohibit the imposition of a civil liability retrospectively.

 

In Hathising Manufacturing Co. Vs. Union of India, AIR 1960 SC 923, a liability to pay compensation to their employees with effect from November 28, 1956. Failure to discharge the liability was made punishable by imprisonment. It was contended that the Act enacted in 1957 infringed Article 20(1) as it imposed a liability to pay compensation since Nov 28, 1956. The Supreme Court upheld the constitutionality of the impugned Act and held that the liability imposed was a civil liability and since the failure to discharge a civil liability was not an offence, Article 20(1) would have no application.

 

It has been held that Article 20(1) has no application to cases of preventive detention, or where security is demanded from a press under a press law. Article 20(1) does not apply to disciplinary proceedings.

 

 

B. Double Jeopardy [Article 20(2)]

 

 

Clause (2) of the Article provides protection against “Double Jeopardy”. The clause lays down “No person shall be prosecuted and punished for the same offence more than once”. This clause enacts the well-known principle of criminal jurisprudence that “no one should be put in jeopardy twice for the same offence”. It is based on the Common Law Maxim “Nemo debet bis vexari”, which means that a man must not be put twice in peril for the same offence.

 

Where a person has been convicted for an offence by a competent court, the conviction operates as a bar to any further criminal proceedings against him for the same offence.

 

The Protection contained in Article 20(2) would be available only if the following essentials are complied with

 

(i) The person must be accused of an “offence”

 

The term “offence” means any act or omission made punishable by any law for the time being in force.

 

(ii) The person must have been prosecuted before a Court or a judicial, tribunal

 

The term “Prosecution” means initiation or starting of any proceeding, criminal in nature, before a court, or a judicial tribunal. Article 20(2) would have no application where the proceedings are held under any revenue authorities. (Maqbool Hussain Vs. State of Bombay AIR 1953 SC 325). The appellant a citizen of India, brought from a foreign country, some gold without making a declaration and prosecution started against him under the said law. The court held that the sea customs authorities were not a Court or a judicial tribunal and the adjudging of confiscation under the Sea Customs Act, 1878, did not constitute a judgement or an order of a Court or a judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. The proceeding taken before the sea custom authorities, did not amount to prosecution nor the order of confiscation constitute a punishment imposed by a Court. It was held that prosecution under Foreign Exchange Regulation Act, was the first prosecution not barred by Art. 20(2).

 

In S. A Venkatraman Vs. U.O.I, AIR 1954 S 375, the appellant, a Government servant was charged with committing corruption. As a result of the report of the Enquiry Commissioner, he was dismissed from the service. The same result would follow if the departmental enquiry is held after the prosecution of the accused. In a criminal proceeding before a court article 20(2) is available only when the accused has been not only prosecuted but also punished after such prosecution. If no punishment, Clause 2 of Art 20 would have no Application. Prosecution and punishment must co-exist for the operation of Art 20(2)

 

Where a prosecution was a nullity and as a result, the accused was discharged, a fresh prosecution for the “Same offence” would not be violative of Art. 20(2).

 

Article 20(2) would have no application where the person is prosecuted and punished for the second time, but the subsequent proceedings is merely the continuation of the previous proceeding, as is the case of an appeal against acquittal or an appeal against conviction.

 

(iii) “Offence” must be the same in both the proceedings

 

In Lee Roy Frey Vs. Superintendent District Jail, AIR 1958 SC 119, the accused was punished under the Sea Customs Act, 1878. Later on, prosecuted under section 120B of the IPC for conspiracy to commit the act. It was held second prosecution was not barred by Art. 20(2) as it was not for the same offence. Same act of a person constitutes two different offences, punishment for one offence bar prosecution and punishment for the other offence.

 

In Mohinder Singh Vs. State of Punjab AIR 1999 SC 211, the Supreme Court held that offence of attempted dacoity under sec 399 and 402 of IPC and Section 3 of TADA act, 1985 and offence of possession of fire arms without a valid licence under section 25 of the Arms Act 1959, and section 5 of the TADA Act 1985, were two distinct offences and therefore trial for the former offence would not be a bar to trial for the latter offence. Double jeopardy is distinguished from the rule of “Issue Estoppel”. The rule of issue estoppel precludes evidence being laid to prove a fact in issue as regards which evidence has already been laid and a specific finding recorded at an earlier criminal trial before a competent court.

 

The accused made a statement leading to the recovery of a fire arm which he was alleged to have used against the victims. He was prosecuted and acquitted. It was held the evidence was precluded by the rule of issue estoppel held prosecution cannot adduce evidence to set aside the finding of fact arrived at in the previous criminal trial of the accused.

 

Double jeopardy and Issue Estoppel

 

While Article 20(2) bars double punishment, rule of issue estoppel bars reception of evidence on an issue on which finding was in favour of the accused at a previous trial. Article 20(2) has no direct bearing on question at issue while what is required for the application of the rule of issue estoppel is the identity of issue and the acquittal of the accused at a previous trial on the same issue, while Article 20(2) would be attracted if “offence” is the same in the second prosecution.

 

 

3. Self-Incrimination [Article 20(3)]

 

Clause (3) of Article 20 provides.

 

“No person accused of any offence shall be compelled to be a witness against himself”.

 

This Clause is based on the maxim “nemo tenetur prodere accussare seipsum”, which means that “no man is bound to accuse himself”

 

The protection is available only if the following ingredients are present

(i) It is a protection available to a person accused of an offence;

(ii) It is a protection against compulsion to be a witness, and

(i) It is a protection against such compulsion resulting in his giving evidence against himself.

 

The words “accused of an offence” indicate an accusation made in a criminal prosecution before the Court or a judicial tribunal where a person is charged with having committed an act which is punishable under the Indian Penal Code, 1260 or any special or local law.

 

In Nandini Satpathy Vs. R. L. Dani AIR 1978 SC 1025, the Supreme Court held that Section 160(1) of Cr.P.C which barred the calling of a woman to a police station was violated in the case. The court ruled that Article 20(3) extended back to the stage of police investigation not commencing in court only, since such inquiry was of an accusatory nature and could end in prosecution. The ban on self-accusation and the right to silence while an investigation or trial was underway the court viewed, extended beyond that case and protected the accused in regard to other offences, pending or imminent, which might deter him from voluntary disclosure of criminatory matter.

 

It follows that the protection contained in Article 20(3) is also available at the stage of police investigation. Further that the right of silence guaranteed by Article 20(3) is not limited to the case for which the person is examined but extends to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. It was also held that the protection could be claimed by a suspect also.

 

The Court observed in State of Bombay Vs. Kathi Kalu Oghad AIR 1961 SC 1808, “self- incrimination must mean conveying information based upon the personal knowledge of the person giving the information”.

 

It follows that giving thumb-impression or impression of foot or palm or fingers or specimen of writings or exposing parts of the body by way off identification are not covered by the expression “to be a witness” under Article 20(3).

 

Distinction between to be a witness & "furnishing evidence"

 

The Court distinguished “to be a witness” from “furnishing evidence”. To be a witness", the Court held, meant making of oral or written statements in or out of court by a person accused of any offence. It meant imparting knowledge in respect of relevant facts by an oral statement or statement in writing made or given in court or otherwise. While, "furnishing evidence" in its widest significance included production of documents or giving materials which might be relevant at a trial to determine the guilt or innocence of the accused.

 

It has been held that the tape-recording of statements made by the accused, though the recording was done with the knowledge, but without force or oppression, is not hit by Article 20(3), since there is no element of compulsion within the meaning of this clause.

 

The protection under Article 20(3) is confined 16 an accused in a criminal proceeding and does not apply to witnesses or to civil proceedings or proceeding other than criminal.

 

4. Conclusion

 

Article 20 of the Constitution of India plays a pivotal role in safeguarding the rights and dignity of individuals accused of crimes. Its provisions are rooted in the principles of fairness, justice, and the rule of law, ensuring that individuals are protected from retrospective laws, double jeopardy, and self-incrimination. These safeguards not only uphold the fundamental rights enshrined in the Constitution but also contribute to a just and equitable criminal justice system in India.

 

In a democratic society, the protection of individual rights, even in the face of criminal accusations, is paramount. Article 20 stands as a testament to India's commitment to upholding the principles of justice and fairness, ensuring that the rights of its citizens are protected, regardless of their legal circumstances.