Article 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

Exceptions

In Indian constitution, no absolute right is given to its citizens therefore Art 20(1) subject to
certain restrictions.

a) Preventive Detention: In order to maintain peace and to stop the further commission of an
offence in society, preventive detention is used by way of imprisoning offenders. Article
20(1) implies convicted and offence words which make it clear that the article has no
application to preventive detention. It imposes restriction against conviction/ punishment etc.
but not against detention. Article 20(1) provides constitutional protection to individuals
charged against criminal offences prohibited by law.

b) Civil liability/Proceeding: In case of civil liabilities or civil proceedings, Art 20(1) shall
not be applicable.

c) Repealed statutes: If the accused committed an offence which was recognised in law when
committed but later repealed, in such matters the court can redress the case applying those
repealed statutory provisions. For e.g. – persons charged under the Terrorism and Disruptive
Activities Act (TADA) and Prevention of Terrorism Act (POTA) continue to languish in jail
even though the laws have been repealed. Even Therefore, such punishment shall be
continued until the tenure of punishment will be completed. In G.P. Nayyar v. State (Delhi
Administration) AIR 1979: The Supreme Court held that repealed statutes remain applicable
to crimes committed before the statute’s repeal therefore denied the appeal.

 Kedar Nath v. State of West Bengal, 1954: The accused committed an offence in
1947, which under the Act then in force was punishable by imprisonment or fine or
both. The Act was amended in 1949, which enhanced punishment for the same
offence by an additional fine equivalent to amount of money procured by the accused
through the offence. The SC held that the enhanced punishment could not be
applicable to the act committed by the accused in 1947.

 In the case of Rattan Lal v. State of Punjab (1964),( Rule of beneficial

construction: When there are two or more possible ways of interpreting any
statute’s section or word, the meaning which gives relief and protection to
accused should be chosen. E.g.- A in his board exams commits cheating, as per
punishment of existing laws he gets imprisonment of 2months, later such as
amended and prescribes punishment as fine of Rs. 2,000. As per beneficial
construction rule, A instead of getting punishment of 2months subject to a fine of
Rs. 2,000.) the court laid down the rule of beneficial construction required that an ex-
post facto law could be applied only to reduce the punishment. ((A boy of 16 years
convicted for house trespass and outraging the modesty of an 8 year old girl. The
magistrate sentenced him to six months punishment, later the Probation of Offenders
Act, 1958 came into force which said a person below age of 21 should not ordinarily
be sentenced to imprisonment. The SC held that the rule of beneficial interpretation
required that ex post facto law can be applied to reduce the punishment.))

ARTICLE 20(2):

Fundamental right which is guaranteed under Article 20(2) of Constitution of India

incorporates the principles of “autrefois convict” Double jeopardy which means that person
must not be punished twice for the offence. Doctrine against Double Jeopardy embodies in
English common law’s maxim ‘nemo debet bis vexari, (no man shall be punished twice, if
it appears to the court that it is for one and the same cause). “Autrefois
acquit”(Previously tried and acquitted). Article 20(2) has been adopted from the fifth
amendment of the US Constitution but doesn’t incorporate the principle of autrefois acquit as
incorporated by the US Constitution

(Refer to Section 300 of the amended Criminal Procedure Code,1973)

(Held in Smt. Kalawati v. state of H.P., AIR 1953: In this case, the appellant was accused
of committing murder and was prosecuted, later acquitted by the district judge. The State
appealed against the decision. The defendants took the plea of double jeopardy. The Court
held that the appeal against acquittal cannot be considered to be the second prosecution, but
the continuation of original prosecution, therefore the rule against double jeopardy will not
play a role in this situation.)

Maqbool Husain v. state of Bombay,1953, the appellant – bought gold to India – He had
not declared it to customs authorities.-they confiscated gold- later they charged him under
FERA- Appellant contention was that he was already prosecuted and punished as his gold
was confiscated -but SC ruled Sea customs authorities are not court/tribunal and hence
Prosecution under FERA not barred

Thomas Dana v. the State of Punjab, 1958 – In this, it was held by the Apex Court that to
claim the protection of the rule against double jeopardy enumerated under Article 20(2), it is
necessary to show that

 there was a previous prosecution

 the prosecution led to punishment and
 the accused is being punished for the same offence again.

In Venkataraman v. Union of India,[1954] An enquiry was made before the enquiry

commissioner on the appellant under the Public Service Enquiry Act,1960 & as a result, he
was dismissed from the service. He was later on, charged for committed the offence under
Indian Penal Code & the Prevention of Corruption Act. The court held that the proceeding
held by the enquiry commissioner was only a mere enquiry & did not amount to a
prosecution for an offence. Hence, the second prosecution did not attract the doctrine of
Double Jeopardy or protection guaranteed under Fundamental Right Article 20 (2).

It is to be noted that Article 20 (2) will applicable only where punishment is for the same
offence, In Leo Roy v. Superintendent District Jail,[1958] The Court held: if the offences are
distinct the rule of Double Jeopardy will not apply. Thus, where a person was prosecuted and
punished under sea customs act, and was later on prosecuted under the Indian Penal Code for
criminal conspiracy, it was held that second prosecution was not barred since it was not for
the same offence.

Article 20(3)

Self incrimination means:A person shall not be asked to make statements against himself (i.e.
self harming statements/confessional statements).

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

Article 20 (3) does not apply to departmental inquiries into allegations against a government
servant since there is no accusation of any offence.

In Nandini Satpathy v. P.L. Dani,1977 the appellant, a former Chief Minister was called to
the Vigilance Police Station for the purpose of examination for a case filed against her under
the Prevention of Corruption Act, 1947. During the investigation, she was served with a long
list of questions in writing which she denied to answer and claimed protection under Article
20(3). The Supreme Court held that the objective of Article 20(3) is to protect the accused
from unnecessary police harassment and the right against self-incrimination is available to
witness and the accused in the same manner, and it is applicable at every stage where
information is furnished. The privilege under Article 20(3) is applied at the stage of police
investigation when the information is extracted.

This right to silence is not limited to the case for which the person is being examined but
further extends to other matters pending against him, which may have the potential of
incriminating him in other matters. It was also held that the protection could be used by a
suspect as well.

In State of Bombay v Kathi Kalu, 1961, it was held that it must be necessarily shown that the
witness was compelled to make a statement likely to incriminate him. Compulsion is an
essential ingredient but if a person makes a confession without any inducement, threat or
promise Article 20(3) does not apply. ((voluntarily making an oral statement or producing
documentary evidence, incriminatory in nature is permissible))
In the case of Selvi v. State of Karnataka, 2010 the apex court rejected High Court’s reliance
on the utility, reliability and validity of narco analysis test and other such tests as methods of
criminal investigation. The Court found that it is a requisite compulsion to force an individual
to undergo narco-analysis test, polygraph tests and brain-mapping. The answers given during
these tests are not consciously and voluntarily given, so the individual is unable to decide
whether or not to answer a question, hence it amounts to testimonial compulsion and attracts
protection under Article 20(3). The Court stated that narco-analysis test is a cruel and
inhuman treatment which violated the right to privacy of an individual. That courts cannot
permit administration of narco-analysis test against the will of the individual except in cases
where it is necessary under public interest. For this purpose, it is essential that the Union
Government should come out with certain guidelines which are to be strictly followed while
conduction such a test.

1. The permission of the Court and the written consent of the person undergoing such a test
should be made compulsorily.
2. The person who is supposed to undergo such a test must be given all the necessary details
about the test before he is asked to sign the consent form.
3. Control and supervision of the forensic laboratories should be made under the autonomous
bodies like NHRC and the States Human Rights Commissions.
4. NHRC has suggested that at the time of polygraph test a forensic psychologist, a
psychiatrist and an anaesthetist should remain present. Similar team can be directed to remain
present at the time of Narco Analysis with the additional safeguard of entire proceeding audio
and videotaped.