Protection Against Conviction of Offences:
Art. 20 of Indian Constitution provides for protection in respect of conviction
of offences. In other words, it lays down certain safeguards to the person
accused of crimes as stated below:
- Ex post facto law (Art. 20(1)).
- Double Jeopardy (Art. 20(2); and
- Self-incrimination (Art. 20(3).
1. Ex Post Facto Law (Art. 20(1):
Article 20(1) of the Indian Constitution
prohibits Ex Post Facto laws. The expression ‘Ex Post Facto Law means “a law,
which imposes penalties or convictions on the acts already done and increases
the penalty for such acts”. In other words, Ex Post Faco Law, imposes penalties
The Dowry Prohibition Act, 1961 came into force from 20.5.1961. A person
guilty of accepting dowry is punishable under the Act after 20.5.1961 and not
Ex post facto laws are of three kinds as follows:
- A law which declared some act or omission as an offence for the first
time after the completion of that act or omission.
- A law which enhances the punishment or penalty for an offence subsequent
to the commission of that offence.
- A law which prescribes a new and different procedure for the prosecution
of an offence subsequent to the commission of that offence.
Clause (1) of Art. 20 provides protection only in respect of the above first two
categories of expost facto laws i.e. laws which declare acts as offences
subsequent to the commission to those acts and laws which enhance the penalty
Article 20(1) provides:
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 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
The first of clause (1) provides that “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. This means that if an act is not an offence at
the date of its commission it cannot be an offence at the date subsequent to its
The second part of clause (1) protects a person form ‘a penalty greater than
that which he might have been subjected to at the time of the commission of the
If a person ‘A commits an offence in the year 1947, as per the
act in that year the punishment was imprisonment of fine or both the same act
was amended in 1949 which enhanced the punishment of the same offence by as
additional fine. In such a case the punishment enhanced would not be applicable
to the act of 1947, the same would be set-aside.
The expression self-incrimination
means conveying information based upon
personal knowledge of the person giving information involving himself to be the
prime part taken in the offence. A person shall not be asked to make statements
against himself (i.e. self harming statements/confessional statements).
Clause 3 of Art. 20 of the Indian Constitution prohibits self-incrimination. It
says that “No person accused of any offence shall be compelled to be a witness
against himself”. Art. 20(3) is based on the common law maxim nemo tenetur
prodere accussare seipsum
, which means that “no man is bound to accuse
-The protection under Art. 20(3) is available, provided the
following conditions are fulfilled.:
- The person (seeking protection under Clause 3 of Art. 20) must be ‘accused
of an offence.
- The protection is against ‘compulsion to be a witness. (He is compelled to
give witness); and
- The compulsion relates to giving evidence ‘against himself.
(1) Accused of an offence:
The words ‘accused of an offence makes it clear
itself only that this Right is available to a person accused of an offence only.
In a case, it was held that a person, whose name was mentioned as an accused in
FIR by the police and the investigation was ordered by the Magistrate can claim
the protection of this Right.
The 2 and 3 ingredient i.e. compulsion to be witness
and compulsion to give
evidence “against himself”, shall be taken together as both points convey
Both the ingredients can be understood through the various sections of Indian
Evidence Act, 1872, which states as follows:
According to Sec. 25 of the Act Confessional Statement (Self harming
statement/statement made against himself) made by a person/accused to police
officer is inadmissible.
According to Section 26, such confession shall not be proved against him
Accordingly to Section 27 “when an information given by the accused in police
custody leads to discovery of an incriminating material object, like jewellery,
weapons etc. that portion of the information can be proved.
P is tried for murder, if P in a police custody says, “I have killed Q and
buried the dead body in my garden. I will show you the place, where I boiled
the body Accordingly if Q's body is traced out, P's statement is admissible
under Sec. 27.
Now one question here arises, whether Section 27 of Indian evidence Act is
violative of Article 20(3) of India Constitution. This question was resolved in
The Court held that it is on the prosecution to find out whether the accused
gave the information voluntarily or compulsorily. The Court made it clear that
Section 27 of the Evidence Act is not violative of Article 20(3).
So, therefore as per above mentioned it is clear that ‘compulsion to be witness
and ‘compulsion to give evidence “against himself” both states that to attract
the protection of Article 20(3) it must be shown that the accused was compelled
to make the statement likely to be incriminative of himself, where the accused
makes a confession without any inducement, threat or promise, Article 20(3) does
We can observe that each clause of Art. 20 is designed to protect the people
against the excess of the legislature, the judiciary and the executive
respectively. These protections are available to both citizens and foreigners
for criminal cases only and not for
- State of Bombay vs. Kathi Kalu oghad, AIR 1961 SC 1808
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