Author: Ajay Pratap Singh, Law student at Amity University.
Edited by: Shruti Mayur, Law student at Amity University.
INTRODUCTION
There are three aspects to the protection provided by Article 20: Firstly, it affords one protection against ex-post fact laws as it holds that no one can be deprived of life, liberty, or property, or be subjected to any penalty, as these are referred to as a punishment before an act which at that time was not unlawful is declared to have been illegal. By this it also precludes the aggravation of the penalty to an extent higher than what the law applicable at the time of the offense provided for; Secondly, it affords protection to persons from self-crimination, it means the person cannot be made to say things that incriminate him /her, the right to silence also emanates from this protection; and Finally, it protects persons in the form of protection from double jeopardy that means that an individual cannot be punished for the same act done by him twice.
Keywords: Ex Post Facto Laws, Self-incrimination, Double jeopardy, Protection, Punishment, Penalty, Confessions, Right to remain silent
MEANING
- For situations where no one shall be guilty of any offense if the acts that amount to the offense are prohibited under the laws in existence at the time of the commission of the act for which one is charged; And no such person shall be liable for a penalty which at the time of the commission of the offense was not discernibly proper.
- No natural person can be again tried or punished for the same offense.
- No person who stands accused of some offense cannot be compelled to act as a witness for his case.
COMPARISON WITH OTHER COUNTRIES
It can be safely said that today over a hundred countries have an Article in their Constitution or other legal concerns that somehow resemble Article 20 of the Indian Constitution. They mostly aim at strengthening the general prevention of torture in one’s treatment, fair trials without undue delays, and non-consensual settlements as well as reiterations of similar charges. Here are a few examples from various countries: The following is a list of basics from different countries:
United States
Ex Post Facto Law:
Ex post facto laws were banned by the U. S Constitution through Article I Section 9 in the case of federal laws together with Article I Section 10 in the case of state laws. This means that laws cannot be applied back in time to main criminals concerning unlawful acts that were legal at the time they were perpetrated.
Double Jeopardy:
The provision as regards double jeopardy is as provided in the Constitution of The United States Of America under the Fifth Amendment and this provision makes it unlawful to put the life or the limb of any person in danger for the same offense twice.
Self-incrimination:
The Fifth Amendment also contains ‘the self-incrimination clause where it states… ‘nor shall any person… be compelled in any criminal case to be a witness against himself’.
United Kingdom
The UK does not have a written constitution, but similar protections are provided through common law and statutory provisions: For similar protections in the UK, there is no written constitution although there are constitutional laws under the common law system and the statutes passed by the Parliament.
Ex Post Facto Law:
The normal legal system and the ECHR’s Article 7 which was adopted by the United Kingdom and passed into the nation’s laws through Section 7 of the Human Rights Act 1998 also protect against the creation of criminal laws whose effects began prior to their passage.
Double Jeopardy:
The rule of double jeopardy was a part of common law which prohibited the trial of a person for the same offense once acquitted. Originally, it meant that an individual could not be re-tried for the same offense, a principle that was altered by the Criminal Justice Act 2003.
Self-incrimination:
The right against ‘be called to incriminate a self’ is among the rights stipulated under the common law and under Article 6 of ECHR on the right to fair treatment.
Canada
Ex Post Facto Law:
Section 11(g) incorporates the principle of this provision that a person cannot be convicted of an offense if it was not a crime under either Canadian or international law at the time of commission of the act.
Double Jeopardy:
In the Charter, Section 11(h) bars any individual from being tried or punished for the same offense if that person has either been acquitted or convicted before.
Self-incrimination:
Under the Charter of the Federal Republic of Nigeria, the right against self-incrimination is captured under Section 11(c) of the Charter which states that a person shall not be compelled to be a witness in any proceedings against him in respect of the offense alleged against him.
Australia
Ex Post Facto Law:
Currently, there is no ex post facto clause in the Australian Constitution; however, a right can be implied from the Constitution, and so this principle is protected under the Australian legal system.
Double Jeopardy:
The principle of double jeopardy is also recognized in Australia as part of the common law and is also reflected in several of the state codes. Recent changes provide for a review in instances of grave circumstances when new evidence is made available.
Self-incrimination:
This right commonly referred to as the privilege against self-incrimination is enshrined both under the common law and the act, more specifically the Evidence Act 1995.
EXPLANATION
Article 20: Protection against the conviction of offenses
Article 20 of the Constitution of India is a fundamental right that safeguards the rights of an accused/convict. It lays down three concepts:
Article 20(1): Ex-post-facto law
Article 20(2): Double Jeopardy
Article 20(3): Right against self-incrimination
Article 20(1): Ex-post-facto law
Every law has two natures:
- Prospective and
- Retrospective
A law is prospective in nature if legislation is made in the area or within the sphere of future acts. In this case, a retrospective law regulates the past activities of the convicts. The offense is other than a violation of a law in force at the time when the act charged as an offense was committed; nor shall any person be deprived of the benefit of the law in force at the time when the offense criminals, but they are passed after a crime had been committed making what previously was legal a crime. Concerning speaking, it is a law that turns such previously legal behavior into an illegality. For instance, let “A” steal, and this took place on the 17th of November, which was not an unlawful act on that particular day. The legislature passed a measure making theft an offense on November, 20th. The Ex Post Facto laws pointed to A as liable for whatever punishment the legislature had set as was the case with the new laws; thereby, demanded that A accept the punishment under the set new laws even though he had no knowledge of the effects of his actions at the time that they were committing the crimes.
Article 20(1) provides: It shall be invalid for any person to be convicted of any offense other than a violation of a law in force at the time when the act charged as an offense was committed; nor shall any person be deprived of the benefit of the law in force at the time when the offense was committed; and penal laws shall be prospective only.
There are two aspects in Article 20 (1).
According to the first aspect, no one may be found guilty of a crime unless they committed an illegal or forbidden act when the relevant law was passed. Any law that is in effect when the act is performed must be implemented, and violators must be punished and brought to justice for their actions. This justifies using the phrase “law in force” in Article 20 (1).
A law passed after an act has been committed indicates that an act that was lawful before the legislation’s enactment may now be considered unlawful. However, Article 20 (1) will protect the act’s interests and prevent the perpetrator from being held accountable for the law’s violations.
Any individual is shielded from a punishment more than that which was imposed for their act at the time they committed it under the second clause of Article 20 (1).
Due to an ex post facto law, no one shall be exposed to a harsher penalty than what he would have already faced for the previous act at that specific time.
Article 20(2): Double Jeopardy
“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 offense.” This maxim embodies the protection against double jeopardy.
Another significant privilege is protected by this clause, which states that “no individual shall be prosecuted and punished for the same offense more than once.” This means that once an offense is committed, a person cannot face further legal action or punishment for that offense. It protects the accused from being subjected to additional penalties or subsequent legal actions for the same criminal offense. Any law that imposes two penalties for the same offense is void if it does so.
It should be underlined that only when the accused has already been “prosecuted” and “punished” once does Article 20 offer protection from double punishment. Even if the two offenses share a trait, this rule does not bar further trials and convictions for a different crime.
Ingredients of Double Jeopardy
- The person should be already accused of an offense
- The prosecution for that offense must be going on
- The result of that prosecution must be punishment
Article 20(3): Right against self-incrimination
“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 medieval 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.
Another question that strikes our mind is, what is Article 20(3) of the Constitution? Under Article 20(3), the accused cannot be made to testify against himself. At all times, including during the trial stage, the protection is accessible against physical and mental compulsion. It is important to remember that protection only applies to personal knowledge. Things that can be physically manifested, such as my watch, my thumbprint, or a blood sample, are not included.
Ingredients: If the following requirements are met, Article 20(3) protection is available.
- The person must be “accused of an offense” to qualify for protection under Clause 3 of Article 20.
- The prohibition is on being forced to testify. He is required to testify, and the requirement is that he testify “against himself.”
CASE LAWS-
- Sharma v. Satish Chandra (1954) :M. P. Sharma v. Satish Chandra (1954) :
Issue: This case was concerned with the extent to which Articles 20(3) applied in relation to the search and seizure of documents.
Explanation: On this aspect, the Supreme Court was unyielding in its ruling indicating that the protection against having to incriminate one’s self cannot be tantamount to the search and seizure of documents. In the matter, it held that the search and seizure of documents from the accused do not make the process a testimonial compulsion and hence do not fall under Article 20(3).
- State of Bombay v. Kathirullingghad (1962) :[1979-1980] 96 BOMLR 414- In this case, they decided to strike down the provision of the Bombay Police Act which was challenged by the state of Bombay was State of Bombay v. Kathi Kalu Oghad (1962).
Issue: This case also discussed Article 20 (2) whereby explains the aspect of double jeopardy.
Explanation: The Supreme Court considered that without having his case tried and arraigned in one jurisdiction, and punished, one cannot be again arraigned, tried or punished in another jurisdiction for the same offense. In this one, it was held that prosecution of an individual for an offense for which he has already served his prosecution amounts to violating Article 20(2).
- State of Bombay v. Narasu Appa Mali (1952) : State of Bombay vs. Narasu Appa Mali 1952 was a case dealing with the interpretation of the newly adopted written Constitution of India on the abrogation of the ‘Doctrine of Lapse’.
Issue: Effectively, when a law makes an act an offense, it is retroactive; this violates Article 20(1).
Explanation: As held by the Supreme Court interpreting Article 20(1) it observed no law shall be retrospective in the sense that its effect is to be given from the past in any penal matters. This case held that no offender should be made to suffer the consequence for an act that was legally deemed criminal when it was performed.
- Nandini Satpathy v. P. L. Dani (1978) : Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1361 :
Issue: This right to be not held responsible for one’s action is vast where one is.
Explanation: In this regard, the Supreme Court stated more, that the right against self-incrimination relates to search and seizure as well. This ruling went further to expound this by stating that, it is unlawful to compel a person to give information that will incriminate him or her, as this is inapposite to Article 20(3).
- S. Paripoornan v. State of Kerala (1994) :K. S. Paripoornan v. State of Kerala (1994) :S. Paripoornan v. State of Kerala (1994) :
Issue: Whether this was a violation of Article 20(3) of the constitution was the act of the police to force a person to provide a handwriting sample.
Explanation: The Supreme Court concluded that a threat to compel the handwriting of the suspect is not an infringement of Article 20(3). It was also concluded that the request for a handwriting sample does not amount to testimonial compulsion.
- Selvi & Ors. v. State of Karnataka (2010):100. State of Karnataka (2010): State of Karnataka (2010) :
Issue: Criminalistics, especially aspects of Drug evidence received under the exercise of the Narco-Analysis test.
Explanation: As per the judgment it is held that the application of the narco-analysis on an accused is a violation of Article 20(3) which says protection against self-incrimination. It continued holding that the evidence obtained from such tests is inadmissible as it violates the right against testimonial compulsion.
DOCTRINES
The doctrine of Double Jeopardy:
This is a legal maxim that no one shall be held liable to be punished for the same offense twice. It is kept safe by Article 20(2) of the Indian constitution. Double jeopardy safeguards society from subjecting a particular person to trial as well as punishment for an identical violation with the intention of doing it again.
Doctrine of Self-Incrimination:
This doctrine protects people out there from being compelled to give statements that can lead to their imprisonment. It finds its reflection in the provision under Article 20(3) of the Constitution of India. It also safeguards one’s entitlement not to testify to facts that may harm him/her during the course of a case.
Doctrine of Ex Post Facto Laws: Doctrine of Ex Post Facto Laws:
This doctrine banished the idea of applying a penal law in the past especially when the law was implemented after the event took place. Under section 87-A of the Indian Penal Code, Article 20(1) of the Indian Constitution prohibits the state from making any law that suddenly offers a punishment for an act that was not unlawful at the time the act was committed. The doctrine makes sure that people are not put to jail for things that were not legally wrongful at the time when they were committed.
The doctrine of Testimonial Compulsion:
This doctrine concerns Article 20(3) of the Charter and prevents persons not to giving testimonial evidence which leads to self-incrimination. It also embraces both; oral and written procedures. The doctrine establishes a principle that people cannot be compelled to give evidence that will be admissible in criminal prosecution against them.
The doctrine of Reasonable Restriction:
However, Article 20 sets some basic rights for an individual while reasonable restriction of the provisions of this article allows for limitations of these rights, especially in the case of public order, morality, etc. These restrictions must be reasonable under the constitution.
Doctrine of Legal Necessity:
This doctrine emphasizes the importance of protecting individual rights even in situations where it might seem necessary for the state to encroach upon them. It ensures that legal procedures and safeguards are followed, even in exceptional circumstances.
The doctrine of Due Process:
Though not explicitly mentioned in Article 20, this doctrine ensures fair treatment and procedural safeguards during legal proceedings. It emphasizes that legal proceedings must be fair, and just, and follow established procedures, protecting the rights of the accused.
INTERPRETATIONS
Interpretations of Article 20’s clauses have evolved through judicial decisions and legislative actions to ensure its application in contemporary legal contexts:
Protection from Ex Post Facto Laws (Article 20(1)):
Evolution: Judicial interpretation has clarified that ex post facto laws not only include criminalizing an act retroactively but also increasing the punishment for an act after it has been committed. Courts have expanded the scope of what constitutes ex post facto laws to protect individuals from retrospective criminal laws.
Example: Courts have held that enhancing the punishment for an offense retrospectively would violate Article 20(1) as it would expose individuals to a greater punishment than what was applicable when the offense was committed.
Protection from Double Jeopardy (Article 20(2)):
Evolution: Courts have clarified that “same offense” under double jeopardy means the same set of facts and not necessarily the same legal provisions. It prevents successive prosecutions for the same offense, whether under the same law or different laws.
Example: If an individual is acquitted of murder, they cannot be tried again for the same murder, even if new evidence emerges.
Protection against Self-Incrimination (Article 20(3)):
Evolution: Courts have expanded the scope of protection against self-incrimination to cover not only testimonial evidence but also documentary and other forms of evidence.
Example: Courts have ruled that compelling an accused to give voice samples or undergo narco-analysis tests without consent violates the protection against self-incrimination.
Interpretation in Contemporary Contexts:
Technology and Privacy: With advancements in technology, courts have extended Article 20 protections to digital communications and data, ensuring individuals’ privacy rights are upheld.
Terrorism Laws: Courts have balanced Article 20 protections with the need for stringent laws to combat terrorism, ensuring that accused persons are not unfairly targeted or subjected to arbitrary prosecutions.
Legislative Safeguards:
Criminal Procedure Code Amendments: Legislative actions have been taken to align procedural laws with Article 20 protections, ensuring fair trial rights and preventing abuse of legal processes.
Data Protection Laws: New legislation is being framed to protect individuals’ rights against self-incrimination concerning digital data, ensuring these rights are upheld in contemporary digital contexts.
Judicial Review:
Landmark Judgments: Courts have delivered numerous judgments interpreting Article 20 in various contexts, ensuring its relevance and applicability in contemporary legal scenarios.
Balancing Rights: Courts consistently balance individual rights under Article 20 with the state’s interest in maintaining law and order, ensuring a fair balance between individual liberties and societal interests.
FUTURE IMPLICATIONS
Article 20 of the Indian Constitution, with its safeguards against double jeopardy, self-incrimination, and retrospective laws, plays a crucial role in protecting the rights of individuals within the legal system. Some potential future implications related to Article 20 could include:
Continued protection of individual rights: Article 20 ensures that individuals are safeguarded against certain legal injustices and arbitrary actions. Its continued application and interpretation by the judiciary will be essential in upholding fundamental rights in the future.
Evolving legal challenges: As society changes and new legal challenges emerge, the principles enshrined in Article 20 may face new interpretations and applications. Courts may need to address novel situations to ensure that the essence of these protections is maintained.
Balancing individual rights and societal interests: There may be cases where the strict application of Article 20 protections conflicts with the broader interests of society, such as in cases of national security or public safety. Balancing individual rights with societal needs will be an ongoing consideration.
CONCLUSION & COMMENTS
Article 20 of the Indian Constitution, is evident that the protections it provides against double jeopardy, self-incrimination, and retrospective laws are fundamental pillars in upholding individual rights within the legal system. These safeguards serve as a cornerstone in ensuring fairness, justice, and human dignity for all individuals.
Looking towards the future, the implications of Article 20 continue to be significant. The evolving legal landscape will require continuous interpretation and application of these principles to address new challenges that may arise. Upholding the essence of these protections will be crucial in maintaining a balance between individual rights and societal interests, especially in cases involving national security or public safety.
As we navigate the complexities of the legal system, Article 20 stands as a beacon of protection, safeguarding individuals from unjust convictions, and excessive punishments, and ensuring fair treatment in the eyes of the law. By upholding these principles, we reinforce the values of justice, equality, and respect for every individual within our legal framework.
REFERENCES
- Books / Commentaries / Journals Referred
- LAW Commentary On The Constitution Of India
- Online Articles / Sources Referred