ANALYSIS OF ARTICLE 20 OF THE INDIAN CONSTITUTION
INTRODUCTION
ARTICLE 20: PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES:
Article 20(1): No person shall be convicted of any offence except for violation of law in force, at the time of the commission of the Act charged as an offence, nor 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.
Article 20(2): No person shall be prosecuted and punished for the same offence more than once. Article 20(3): No person accused of any offence shall be compelled to be a witness against himself.
Article 20 provides safeguards to persons accused of a crime. Article 20 is basically a facet of Article 21. Article 20 provides the following safeguards to the persons accused of crimes.
1. Ex-post facto Law [Article 20(1)]
2. Double jeopardy [Article 20(2)]
3. Prohibition against self incrimination [Article 20(3)]
ARTICLE 20(1)
Ex Post Facto Laws
Clause (1) lays down that no person shall be convicted of any offence except for the violation of a law in force at the time of the commission of the Act charged as an offence. Thus if the act was not an offence, at the date it was committed, no future law can make the accused liable for that act.
An ex-post facto law is a law which imposes penalties retrospectively i.e. on acts already done, and increases the penalty for such acts.
Clause (1) safeguards the accused from such laws. In the U. S. also similar provisions are there both for the central and state legislatures. However, it is to be noted that only retrospective criminal legislation is prohibited and not civil legislation.
∙ In Halthi Singh Manufacturing Co. v. Union of India (AIR 1960 SC 923), law had imposed retrospectively, the duty on the employers closing their undertakings, to pay compensation to the employees, the violation of which duty was liable to be punished by imprisonment. The Court held that it was a civil liability and hence Article 20(1) not attracted.
∙ Tax can be imposed retrospectively and also penalty imposed for a violation of such payment of taxation is a civil liability and hence no remedy through Article 20(1) is available.
∙ In Sajjan Singh v. State of Punjab (1964 SC), a section of the Prevention of Corruption Act provided that if the pecuniary resources or property of the accused was disproportionate to his known sources of income, the charge of corruption and criminal misconduct against him was proved. Challenged on the ground that it had retrospective effect as it took into account the property acquired before the passing of the Act. The Court held that a statute could not be said to be retrospective in effect if a part of the requisites for its action was drawn from a time antecedent to its passage by the legislature and hence the Act is valid.
∙ Where an Act is repealed, and then the repealing Act is repealed. The procedure under the first Act is rendered valid ab initio, and a crime committed while that Act was in operation can lawfully b subjected to the procedures under the Act.
∙ In Pareed Lubha v. Nilambaram (AIR 1967 Kerala 155), it was held that if the non payment of Panchayat tax was not an offence on the day when it was due, subsequent law cannot retrospectively hold the accused liable for that act of non-payment.
∙ Article 20(1) is applicable only to cases of conviction & sentence; it does not bar trial under a sentence; it does not bar trial under a retrospective law.
The second part of Clause (1) guarantees that no person shall be subjected to a penalty greater than what might have been inflicted under the law in force at the time of commission of the offence. The case in point is Kedar Nath Bajoria v. State of West Bengal (1953 SC).
RULE OF BENEFICIAL CONSTRUCTION
One issue with respect to the interpretation of Article 20(1) is whether Article 20(1) is also attracted in cases where the penalty has been reduced retrospectively by law.
The rule of beneficial construction requires that ex-post facto law should be applied to mitigate the rigour of the previous law on the same subject. Article 20(1) is not attracted in such cases on the reasoning of common sense and reason.
Following are some cases involving instances of beneficial construction:
∙ In T. Barail v. Henry Hoe (1963 SC), penalty for food adulteration earlier was life imprisonment, but later it was reduced to 3 years, the court applied the later penalty by sentencing the convict
∙ In Ratanlal v. State of Punjab (AIR 1965 SC), a boy of 16 yrs. under the earlier law was liable to be punished for six months imprisonment for house trespass and outranging the modesty of a girl. But according to a new law a boy under 21 years of age was not to be imprisoned, the court held that the new law would be applicable and hence no imprisonment was possible.
∙ “Law in Force” must be understood in its natural sense: The law factually in force and not a law “deemed to be in force”.
ARTICLE 20(2)
Protection against Double Jeopardy
It is a common law rule that “nemo debet vis rexari” i.e. no man should be put twice in peril for the same offence. Article 20(2) of the Indian Constitution embodies this rule: “No person shall be prosecuted and punished for the same offence more than once”. The same rule is contained in the 5th amendment of the US Constitution. But there is a difference both in US and England. There the protection is given irrespective of whether the accused was prosecuted or acquitted; in India it is necessary in order to attract Article 20(2), that the accused was not only prosecuted but also punished. Thus in India, the scope of the protection is limited. The principle existed in India even before the Constitution by way of General Clauses Act 1897, Section 26 and Section 300 of the Criminal Procedure Code., 1973.
It follows that two essentials to attract Article 20(2) are:
i) The accused must have been prosecuted and punished
ii) The prosecution and punishment must have been for the same offence
I. The expression to be underlined is “prosecuted”. This has to be read in conjunction with the word “punished”. The following essentials flow from the various Supreme Court decisions:
∙ The person must be accused of an “offence” as defined in the General clauses Act as “any act or omission made punishable by the law for the time being in force.”
∙ The proceeding or prosecution must have taken place before a “Court” or “Judicial Tribunal” e.g. Revenue Authorities, Sea Customs Authorities, a tribunal for departmental or administrative enquiries are not judicial tribunals for the above purpose.
∙ The proceedings should have taken before the judicial tribunal or court in reference to the law which creates offences e.g., an enquiry held by a statutory authority against a government servant to suggest the government as to the disciplinary action to be taken and not for the purpose of punishing for the offence of cheating or corruption is not prosecution under Article 20(2).
Landmark Cases:
∙ In Maqbool Hussain v. State of Bombay (AIR 1953 SC):
Undeclared gold of the appellant was seized by the sea-customs authority; later he was charged and prosecuted for the violation of FERA in the court of the chief presidency magistrate. The appellant took the plea of double jeopardy under Article 20(2). The Court held: Sea-Custom Authority was not a judicial authority for the purpose of Article 20(2) and hence there was no prosecution, and the plea of double jeopardy was rejected. ii)
∙ In S. A. Venkata Raman v. Union of India (AIR 1954 SC):
Therein the appellant, a government servant was dismissed from job after an enquiry held before the enquiry commissioner. The requirements of Article 311(2) were complied with. Subsequently, he was charge sheeted and prosecuted under the Prevention of Corruption Act and the Indian Penal Code. It was held by the Supreme Court, that the earlier enquiry was not “prosecution” for the purpose of Article 20(2) and hence Article 20(2) was not attracted.
II. The prosecution and punishment must be for the same offence. The same offence would mean the offence, whose ingredients are the same, e.g., the offences under Section 409 Indian Penal Code and Section 105 Insurance Act have different ingredients and are hence not the same offence for the purpose of Article 20(2).
∙ In Leo Roy Frey v. Superintendent District Jail (AIR 1958 SC), it was held that criminal conspiracy is a distinct offence from the crime that is the object of the conspiracy. Thus a prosecution and punishment under Sea Custom Act and the subsequent prosecution and punishment for the conspiracy for violation of the Sea Customs Act does not attract Article 20(2). Also, two offences will be distinct even if some of their ingredients are common.
If the earlier court was incompetent, the trial is null and void, and in such a case a subsequent prosecution and punishment for the same offence does not attract Article 20(2). If the second proceeding is a mere continuation of the earlier proceeding it is not barred.
DOUBLE JEOPARDY AND TE RULE OF ESTOPPEL
The rule of estoppel relates only to admissibility and prevents the admission of evidence to prove a fact which has already been proved on evidence and has been recorded in a preceding trail; it does not prevent a subsequent trail. Double jeopardy rule is thus different from the rule of estoppel in a criminal trial.
In Pritam Singh v. State of Punjab (1956 SC), the accused made a statement leading to the recovery of firearm which he was alleged to have used against the victims. He was prosecuted for possession of the firearm and was acquitted, but the evidence of the possession of firearm was used in the trial of murder charge against the same accused. The earlier evidence of possession of firearm was held not to be admissible, as the earlier court by acquitting him had denied the fact of such a possession.
The applicability of double jeopardy’ and the rule of ‘estoppel’ are not the same.
ARTICLE 20 (3)
Prohibition against Self – Self-Incrimination
Clause (3) of Article 20 says that “no person accused of any offence shall be compelled to be a witness against himself”.
This is an embodiment of the cardinal principle of criminal law that:
1) An accused must be presumed to be innocent until proved guilty beyond doubts and 2) that no person can be compelled to give evidence so as to prove his guilt (recognized both in English and U.S. Jurisprudence)
The three essentials of the clause are:
1) The person must be accused of an offence;
2) It is a prohibition against “compulsion to be a witness”.
3) It is a prohibition against such compulsion relating to his giving evidences “against himself”. Ingredient I- “Accused” of an offence.
∙ “Accused” means a person against whom a formal accusation relating to the commission of an offence has been made which in normal course may result in his prosecution and conviction. It is not necessary that the actual trial or enquiry must have started before the court. If FIR is lodged and investigation ordered by the magistrate against a person, he shall be an accused. This was held in M. P. Sharma v. Satish Chandra (1954 SC 300).
∙ In Delhi Judicial Service Association. v. State of Gujarat (1991 SC), it has been held that when a contempt proceeding starts against a person, he is not an accused, as in the end, his apology may be accepted.
∙ In K. Joseph Augustine v. M. A. Narayanan (AIR, 1964 SC), it was held that merely because an accusation may follow the enquiry, the person is not accused.
CONCLUSION
When India was under British rule, the rights of Indians were often restricted and they faced many injustices. Prevention of such abuses of power against persons, who are accused of commissioning any offence, from happening again was of paramount importance, hence, Article 20 was included as a fundamental right in the Constitution. Through a number of rulings, the Supreme Court has been instrumental in defending the rights enshrined in Article 20 of the Constitution. It is commendable that the Supreme Court has taken the initiative to ensure a careful balance between the rights of the accused and victim. Adhering to universal principles of human rights not only displays India’s commitment to preserve international law but also reflects its reputation as a democratic and progressive society. India is an emerging powerhouse and a responsible member of the global community. The words of Mahatma Gandhi, “The true measure of any society can
be found in how it treats its most vulnerable members,” must not be forgotten as we recognize the significance of Article 20.
