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A Brief Idea of Article 20: Protection Against Conviction of Offences

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:
  1. Ex post facto law (Art. 20(1)).
  2. Double Jeopardy (Art. 20(2); and
  3. 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 retrospectively.

Eg.: 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 before 20.5.1961.

Ex post facto laws are of three kinds as follows:

  1. A law which declared some act or omission as an offence for the first time after the completion of that act or omission.
  2. A law which enhances the punishment or penalty for an offence subsequent to the commission of that offence.
  3. 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 subsequently.

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 offence..

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 commission.

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 offence.

For Example: 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.

Self Incrimination [Art. 20(3)]:
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 himself”.

Ingredients-The protection under Art. 20(3) is available, provided the following conditions are fulfilled.:
  1. The person (seeking protection under Clause 3 of Art. 20) must be ‘accused of an offence.
  2. The protection is against ‘compulsion to be a witness. (He is compelled to give witness); and
  3. 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 similar viewpoint/meaning.

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 (accused).

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.

For Example:
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 a case[1]

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 not apply.

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

  1. State of Bombay vs. Kathi Kalu oghad, AIR 1961 SC 1808

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