Protection against conviction for offences in India

Protection against conviction for offences is provided for under Article 20 of the Indian Constitution. Article 20 is among those few articles of the Constitution which cannot be suspended during the proclamation of emergency. Thus, protections guaranteed against conviction for offences occupies a supreme position along with Article 19 and 21.

Article 20 can be read as a further extenuation of Article 19. Article 19 provides a list of freedoms expressly. Article 20 puts restrictions on the State to ensure that these freedoms are not unnecessarily destroyed. Article 20, 21 and 22 collectively declare the rights of an individual in relation to life and personal liberty in regards to substantive as well as procedural law. While Article 21 provides for right only against procedural law, Article 20 provides that even the substantive law cannot deprive an individual of his life and liberty. To ensure this, Article 20 states,

“20. Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of the 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

(2) No person shall be prosecuted and punished for the same offence more than once

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

Thus, Article 20 consists of three rights which are popularly known as:

  • Right against ex post facto law
  • Right against double jeopardy
  • Right against self- incrimination

Right against ex post facto law

Ex post facto means “ having a retrospective effect or force.” Article 20(1) has two parts. First, that a person cannot be prosecuted for an act which was not criminal in nature when it was committed and second, that a person cannot be penalised with a punishment more than what was prescribed for a particular when the criminal act was committed.

For example, Mr. A committed rape in his wife on 12.03.2020. On 30.08.2022, the Parliament passes an amendment bill which criminalizes marital rape, punishable with 7 years of imprisonment. On receiving the presidential assent, it becomes a valid law in the country. However, Mr. A cannot be prosecuted under this law as marital rape was not a criminal act when it was done by Mr. A.

Suppose in the same scenario, Mr. A again rapes his wife after the new law has come into force on 01.09. 2022. On 06.12.2022, the parliament again passes an amendment to IPC enhancing the punishment for marital rape to 10 years. Here, Mr. A cannot be imprisoned for 10 years as maximum punishment for the offence when Mr. A committed it was 7 years only.

Thus, Article 20(1) protects an individual from unjust actions of the State. The State cannot create a new crime or enhance the punishment for the existing one merely to harass the individual. In this regards, scope of Article 20(1) is limited only to criminal cases and cannot be applied on civil cases[1] or in the cases of preventive detention.[2]

Right against double jeopardy

Right against double jeopardy is based on Latin maxim “Nemo debet bis vexari, meaning that a man must not be put twice in peril for the same offence. Double jeopardy as understood in common democratic countries provides for twin immunity autrefois acquit and autrefois convict. However, in India autrefois acquit has not been included within the scope of Article 20(2).

The position of law was clarified in Kalawati v State of Himachal Pradesh[3] where a person accused, tried and subsequently acquitted for murder, appeal by state was allowed and the accused here could not plead Article 20(2) as the first prosecution did not end up in punishment. The appeal here would imply continuation of the earlier prosecution and not a fresh suit.

Right against double jeopardy can be lawfully exercised in following cases:

  • Where the second prosecution and punishment is truly identical to the first prosecution where it ended in punishment.
  • When a person is being prosecuted under two laws for same set of acts[4].

Right against double jeopardy will not be available under following cases:

  • Where a person has already been through departmental inquiry and proceedings.
  • Where two or more offences have been committed in a single set of act and person is being prosecuted under two or more different laws.
  • Where the punishment for any offence has been enhanced by the revising authority, such enhancement would not amount to second proceeding and therefore, will not attract 20(2).
  • Preventive detention does not amount to prosecution.
  • Article 20(2) is limited to criminal proceedings only and does not bar proceedings before civil court.[5]

Right against self-incrimination

Right against self-incrimination is guaranteed by 20(3) and can arguably be termed as the most important protection against conviction for offences. This right effectively established three aspects of common law:

  • The accused is to presumed innocent unless proved otherwise.
  • The burden to prove accused’s guilt is on the prosecution.
  • The accused cannot be forced to give any statement against his will.

Article 20(3) has developed and acquired a vast meaning over years through court precedents. Some of them were:

  • M.P. Sharma v. Satish Chandra[6]– Article 20(3) protects the accused from forcefully obtaining from him not only any oral evidence but also any documentary evidence, intelligible gestures or through any other method.
  • State of Bombay v. Kathi Kalu Oghad[7]– Article 20(3) will not cover acts like thumb, palm, foot impression, signature, specimen of writing or even exposing of certain body parts for the purpose of examination.
  • Pakhar Singh v. State of Punjab[8]– Showing of face for the purpose of identification will not be considered as violation of Article 20(3).
  • Selvi v. State of Karnataka[9]– The accused cannot be subjected to narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) or any such techniques which bear a testimonial character.

Conclusion

Article 20 provides for protection against conviction. However, the accused may not always be aware about his existing rights. This lack of knowledge is often misused. Besides, incidences of custodial violence in India is extremely high. It cannot be said Article 20 provides complete protection against conviction as it has many gaps and certain aspects of common law which are applicable in U.K. and U.S.A. are not available in India, the doctrine of autrefois acquit being one of them.

The Supreme Court’s decision in Kathi Kalu Oghad remains to be highly controversial as it defeats the entire purpose of Article 20(3). Therefore, there is a lot of scope for development of Article 20 to ensure better protection conviction. This becomes even more important when one considers the high rate of custodial violence in India.


[1] Shiv Bahadur v. Vindhya Pradesh, AIR 1953 SC 394 

[2] Prahlad v. State of Bombay, AIR 1952 Bom 1 

[3] AIR 1953 SC 131

[4] State of Bihar v. Murad Ali Khan, AIR 1989 SC 1

[5] Bachcha Lal v. Lalji, AIR 1976 All 393.

[6] AIR 1954 SC 300

[7] AIR 1961 SC 1808

[8] AIR 1958 Punj 204

[9] AIR 2010 SC 1974

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