Protection in respect of conviction for offences – Article 20 of constitution of India

Protection in respect of conviction for offences – Article 20 of constitution of India

Introduction

The part three of the Indian constitution which deals the fundamental rights of a person also provide a right to protection in respect to the conviction of offences under Article 20 of the Indian constitution. The Article 20 of the constitution give three rights to an individual that are enshrined in the constitution by the founding fathers of the constitution that are right against retrospective laws, right against double jeopardy and right against self-incrimination. These rights cannot be suspended even at the time of emergency.

Article 20(1) – Ex-post facto laws

Right against retrospective laws means “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.” It bars the parliament from executing law of criminal nature retrospectively.

Let’s take a hypothetical example that a person X have entered into the territory of India with one kg of gold with him on 15th July 2019. On that day the law was that whoever bring more than 500gm of gold in territory of India without declaring it will be sentenced to two year of imprisonment. On 16th of July the parliament amends the law and execute it on the same date in which they have increased the punishment for a person entering into India with more than 500gm of undeclared gold, to be punished with 5 year of imprisonment. The article 20(1) will act as a savior because “the person could only be sentenced or imprisoned in accordance with the law prevailing on the date on which he committed offence and not on the day he is sentenced.”

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Article 20(1) allows the taxation law to be applied retrospective as such a recovery of tax is not a penalty following a conviction for offence. “Though a retrospective legislation for imposition a tax is permissible, penalty cannot be imposed retrospectively.” 1965 Raj LW 118(136).

Article 20(2) – Double jeopardy

The doctrine of double jeopardy means that “No person shall be prosecuted and punished for the same offence more than once. “This doctrine existed before the formation of the constitution of India. To come under the safeguard of this clause a person has to fulfill certain conditions that the proceeding of the trail should end in either acquittal or conviction, mere investigation or enquiry will not make a person eligible to avail the benefit of doctrine of double jeopardy.

“If a law in force prescribe different acts or number of acts to be different offence, then there is no impediment under article 20 in prosecuting the same person for violation of such different acts under the concerned law in force.” Let’s take an example of a thief that while, robing a person hurt him with such a force that the person ends up in vegetative state and after sometime ultimately to death. The thief who was prosecuted for the offence of robbery and have already completed the sentence can be charged with the offence of the murder at the time the person dies. The court has held that “Previous conviction or acquittal for one offence does not bar a subsequent trail and conviction for a separate and distinct offence even though the two offence arise of the same facts and the allegation in two complain are identical.”

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As every law have an exception attached to it, there is also an exception to the rule of double jeopardy that a person can be tried by the courts of different jurisdiction without violating the rule of double jeopardy. The other is that this rule works only with respect to the criminal proceedings not to civil proceeding.

Article 20(3) – Right against self-incrimination

Right against self-incrimination means that “No person accused of any offence shall be compelled to be a witness against himself.” As we all know that the evidence given by a person in police custody is not admissible in the court because we don’t know that whether the evidence given by them was under compulsion of threat physical or mental. If the accused confesses in the court that he is guilty or not then the burden of proof will lie on the prosecution whether he is telling the truth or not. The supreme court have held that “where the confession of the accused is a voluntary one it can be used against the accused. “AIR 1953 SC 131(132).

Article 22 of the constitution which provide that the accused can consult a legal practitioner of his/her choice after the arrest. At the time of interrogation, lawyers should have to there, same has been held by the court that “If any particular point of time, the accused need their lawyer’s assistance during interrogation, when they consider that answer to a particular question may tend to incriminate them, a legal assistance cannot be negated.” 1993 Mad LJ (cri) 110(119)

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With the development in the technology like the DNA test, the question arise is that whether these tests are violation of a person right granted to him under article 20(3) or not. The court have held that “Medical examination of accused-Directing accused to subject himself to blood test/DNA test-Does not amount to testimonial compulsion and order does not violate article 20(3)”

Section 73 of evidence act gives the power to the court to direct the accused to give thumb impression, hand writing, signature etc. Does not conflict with the clause 3 of article 20. The court have also said that showing part of the body by way of identification are not included in the expression “to be a witness. “AIR 1961 SC 1808.

Conclusion

This article talks about the protection given to the people by virtue of the article 20 of the Indian constitution. We can see that each clause article 20 protects us from the acts of legislature, judiciary and executive respectively.

Author: Devanshu Jain,
SLS Nagpur

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