Article 20 :Unfair advantage for criminal
Before understanding that how the article 20(1) is an unfair advantage for criminals we need to understand the meaning of article 20 and what is the purpose of imposing such provision.
Article 20(1) is an kind of prohibition against retrospective criminal law. It basically means that all the criminal law which government is going to make shall have a prospective effect and it shall not have retrospective effect. Retrospective means that we are looking at the past again.
As per the article 245 of Indian constitution parliament is having the power to make laws for whole territory of India and for any specific territory of India but the article 20 is putting certain restrictions on law making power of parliament. It says that parliament can’t make any law to punish the acts which were not an offence at the time when it was committed and they cannot inflict greater penalty than that which might have been inflicted under law which was in force when act was committed.
Let’s try to understand this particular thing by looking at example. Suppose A has committed murder on 25 th may 2022 and punishment for murder at that time was life time imprisonment and on 30th May parliament comes up with new law which imposes death penalty on crime of murder. So these kind of law will not have any kind of effect on A’s liability he will get the punishment of imprisonment for life.
Every thing seems good but there is one problem with this provision and the criminal are taking unfair advantage of that thing.
But there is big loophole in this provision that we are not giving any kind of exception to ex post facto laws. Due to which one of the person who was convicted for rape got released from detention. In Mukesh & anr Vs State for for NCT of delhi and Ors one the convicted person got the benefit of article 20.In December 2012 a brutal gang rape was committed by some people and on of them was an juvenile. Later all the adult were sentenced to death by trial and this sentence was confirmed by high court as well as by supreme court. And that juvenile was convicted by juvenile justice board, all the accused got convicted but that juvenile was released after spending few years in imprisonment. Later age of juvenile was reduced from 18 to 16 years and this action was taken on basis of recommendation given by justice Verma committee. Later amendment was also made in juvenile justice act and now this act said that if a person between age of 16 -18 year commits a henious crime then he will be treated as adult only.
This particular amendment should have been applicable for that juvenile also but due the article 20 this amendment was not made applicable for him. And this incident shows that how the article 20 is acting as an unfair advantage for criminal. I will also blame judiciary for this incident because they should have created the exception by using judicial activism. Historically many times judiciary has made certain exceptions by using judicial activism and same power should have been used in that case also instead of giving Unfair advantage to criminal.
I am not saying that this retrospective application of criminal law should be there for each and every case but atleast retrospective application should be in rarest to rare case other wise some another person will take the advantage of such kind of thing.
Now let’s talk about another loophole in article 20 which is providing unfair advantage to criminals.
Article 20 says that parliament can’t inflict penalty greater than that which might have been inflicted. But If person is getting benefit due to subsequent law then he is having right to use that advantage. Let’s try to understand this provision by taking an example. If A has committed murder of B and punishment for murder is death penalty. But subsequently parliament comes up with new law that punishment for murder is life time Imprisonment. Now ,this particular provision is beneficial for A so he will be able to take the benefit and his punishment of death penalty will get converted into life time imprisonment. This kind of provisions are not providing justice to the victim. All the victim are coming in court with a single motive that they should get the justice and the offender should get the punishment for their inhuman act but unfortunately criminal are taking the benefit of this loophole.
A very similar incident happened in 1962 in the case of Ratan Lal vs state of Punjab. In this case there was boy who was of 16 year old and he was accused of trespass and for outraging the modesty of woman and later he got convicted for committing the crime. Subsequently parliament came up with new law in which provided for impunity for criminal being less than 21 years age. So offender sought to get his punishment cancelled and the question arose that whether the beneficial ex post fact laws are valid or not.
It was held that beneficial ex post facto law are valid and the offender are having the right to use the advantage of it. Again it shows that how we are causing injustice to the victim by these kind of provision.
Many people argue that we need to comply with provision of article 20 because India is an signatory to universal declaration of human rights and article 11(2) of UDHR also talks about prohibition of ex post facto criminal law. But the clause 1 of same article also talks about presumption of innocence for the person who is accused of committing crime. But as per section 111A,113A and 113 B evidence act,1872 we are presuming the guilt of accused unless it is disapproved .If we have created the exception with respect to presumption of innocence then we can also create an exception with respect to article 20(1). At the end I want to say that our parliament and judiciary should make a serious note of it and ensure that every victim is getting justice.
(1)Article 20 of Indian constitution
(2)Article 11 of Universal declaration of human rights
(3) Article 245 of Indian constitution
(4)Section 111A,113A,113 B of evidence act,1872
Author: Alok Singh,
University of petroleum and energy studies /2 nd year energy studies