Article 20: rights of the accused - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Three clauses, three doctrines. Article 20 is compact and each clause is a self-contained short note. It is also one of the two Articles that cannot be suspended even during an emergency — Article 359, as amended by the Forty-fourth Amendment, protects Articles 20 and 21. Say so in any answer; it is an easy mark.

1. Article 20(1): protection against ex post facto law

No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act, nor 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.

Two distinct protections. The first is against retrospective criminalisation: an act lawful when done cannot be made an offence afterwards. The second is against retrospective enhancement of punishment.

Three limits worth stating:

The bar applies to conviction and sentence, not to the trial. A change in procedure may operate retrospectively.
It does not prevent a reduction of punishment retrospectively; the clause protects the accused, and a beneficial change may be claimed.
It applies to criminal liability, not to civil liability or to a tax imposed retrospectively.
Preventive detention is not a punishment for an offence, so the clause does not apply to it.

2. Article 20(2): protection against double jeopardy

No person shall be prosecuted and punished for the same offence more than once.

The scope is narrower than the common law plea, and this is the point examiners test. The Indian clause embodies only autrefois convict — a previous conviction — and not autrefois acquit. Both elements must be present: there must have been a previous prosecution and a punishment. A person acquitted earlier is not protected by Article 20(2), though section 300 of the Code of Criminal Procedure gives a wider statutory protection.

The requirement of a judicial proceeding is illustrated by Maqbool Hussain v. State of Bombay, 1953 INSC 40, AIR 1953 SC 325. Gold was confiscated by the customs authorities, and the person was later prosecuted under the Foreign Exchange Regulation Act. The Court held that the customs authority was not a court or judicial tribunal, and confiscation was not a “prosecution” or “punishment” within Article 20(2). The later prosecution was therefore not barred.

The offences must also be the same. Where the ingredients differ, prosecution for each is permissible even on the same facts.

3. Article 20(3): protection against self-incrimination

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

Three ingredients, and all must be satisfied:

the person must be accused of an offence — there must be a formal accusation, such as an FIR or a complaint, existing at the time;
there must be compulsion to be a witness; and
the compulsion must be to give evidence against himself.

“To be a witness” means to furnish testimonial evidence, that is, personal knowledge conveyed by the accused. It does not extend to the giving of thumb impressions, specimen signatures, handwriting samples, blood samples or the production of documents, because these are physical or material evidence rather than communications of personal knowledge. That distinction — testimonial compulsion as against material evidence — is the core of the topic.

The protection is available not only at trial but at the stage of police investigation, and it extends to a person who has been formally accused even before trial begins.

4. How the three connect to Article 21

Since Maneka Gandhi v. Union of India, 1978 INSC 16, (1978) 1 SCC 248, the procedure by which a person is tried and punished must be fair, just and reasonable under Article 21. Article 20 supplies specific guarantees; Article 21 supplies the general standard. A procedure that satisfies the letter of Article 20 may still fail if it is arbitrary or unfair.

How this is examined

Very commonly as short notes: ex post facto law, double jeopardy, or protection against self-incrimination. Also as problems — a set of facts, asking whether a second proceeding is barred, or whether a particular direction to the accused offends Article 20(3).

Three points to get exactly right. Article 20(2) requires prosecution and punishment, so an acquittal is not covered. Article 20(3) covers testimonial compulsion only, not physical evidence. And Articles 20 and 21 cannot be suspended even during an emergency, which is the constitutional lesson learnt from the emergency of 1975 and written in by the Forty-fourth Amendment.

Now go and read the questions themselves: Constitutional Law I past question papers.