Article 20

A) Introduction
The constituent assembly discussed article 20 on 2nd, 3rd and 5th December 1948. It was
introduced as draft article 14.
Three key amendments were moved to the Article.
The first proposed to replace the phrase ‘law’ with ‘laws in force’.
The second wanted to include a new clause that protected individuals against ‘unreasonable
searches and seizures.
The third amendment added ‘prosecuted and’ before ‘punished’.
The Assembly was in agreement over the first and third amendments and these were passed.
B) Concept/object
The laws which are inequitable and against the notion of justice constitutional safeguards
must be provide against such laws.
C) Article
Article 20 provides protection in respect of conviction of offences in three ways:
1) Protection against ex post facto laws which impose penalties retrospectively for acts
already done or laws which increase penalty for the past acts.
2) It guarantees protection against double jeopardy for no person to be prosecuted and
punished for the same offence more than once.
3) It gives privilege against self-incrimination.

D) Analysis of the Article and important judgements

1) Article 20 (1) Protection against ex post facto laws.
This clause is divided in two parts:
a) Act becomes an offence
b) When there is increase in penalty for past act.
i) When an act which was not an offence on the date of commission
becomes an offence subsequently.
When an act becomes an offence, immunity is provided to the person from being
tried for an act, under a law enacted subsequently, which makes the act unlawful.
This means that if an act is not an offence on the date of its commission, a law
enacted in future cannot make it an offence.
This proposition is illustrated by the following fact situation.
Section 304 IPC, was enacted on 19th November 1986 making a dowry death
punishable as a offence under the penal code. A new offence was thus been
inserted in the IPC with effect from 19th November 1986. By virtue of article 20
(1) section 304 B will not be applicable to death thatb took place in 1984.

a) In Sakshi v. UOI
 The supreme court refused to give an extensive meaning to the word ‘rape’ under
section 375 of IPC on the ground that such interpretation may violate article 20(1).

The word ‘offence’ used in article 20 is defined in S.3(38) of the GCA as an act or
omission made punishable by any law for the time being in force therefore, article
20 relates to constitutional protection given to person who is are charged with a
criminal offence before a criminal court.

b) In Varinder Singh v. State of Punjab

Facts: Prisons (Punjab amendment) act, 2011 section 52-A was added to Prisons
Act, 1894 making possession of mobile phone by prisoner and supplying of phone
by person to a prisoner, and offence vide Punjab government Notification dated 8
March. The FIR for the alleged offence in present case was dated 24 September
2009.
Held: Thus, held the new sections 52-A will obviously not apply to case in hand
as alleged offence was committed in 2009 and retrospective effect cannot be given
in such a case.

c) In Sajjan Singh v. state of Punjab

Facts: In order to punish corrupts government officer’s parliament has enacted the
Prevention of Corruption Act which creates the offence of criminal misconduct.
Section 5 (3) of the act creates a presumption to the effect that if the government
servant for corruption has in his possession which are wholly disproportionate to
his known sources of income and if he cannot explain the same satisfactory then
he is guilty of criminal misconduct.

Contention: Section 5(3) was challenged before the Supreme Court

It was argued by the accused that when section 5(3) speaks of the accused being
in possession of pecuniary resources, or property disproportionate to his known
sources of income only property acquired after the date of the Act is meant. To
think otherwise will give the act a retrospective operation.

Held: The supreme court rejected the contention saying that “the statute cannot be
said to be retrospective because a part of the requisite actions is drawn from a time
antecedent to its passing. Also, section 5(3) does not create a new offence thus the
trail against the accused is maintainable.

d) In Shiv Bahadur V. Vindhya Pradesh, it was

Held by the SC that a person can be convicted and punished under a ‘law in force’
which means a law ’factually’ in existence at the time the offence was committed.
A law passed on 30th September but given an operation from 1st august cannot be
taken to be law in force on 1st august, so an act committed on 1st august cannot be
punished thereunder.
 ii) When there is increase in penalty for past act.
The second part of article 20 (1) immunizes a person from a penalty greater than
what he might have incurred at the time of his committing the offence.
a) In T Barai V Henry Ah Hoe AIR 1983 SC 150
it was observed that if “the clause applies to punishment for criminal offences. X
committed an offence in 1947 under the Prevention of Corruption Act which then
prescribed a punishment of imprisonment or fine or both. In 1949, by an
amendment of the law, the punishment was enhanced. The SC held that the
enhanced punishment could not be applied to the offence committed in 1947
because of the prohibition contained in article 20 (1).
b) The scope of article 20 (1) has been fully considered by the SC in
K Satwant Singh v State of Punjab.
Facts: According to section 420 IPC no minimum fine for cheating was provides
and hence the court could impose unlimited fine. S committed an offence
punishable under the provision. In 1943 an ordinance was issued an it laid down
the minimum fine to be compulsorily imposed by the court for S.420 IPC.
Contention: The accused challenged this on the ground that it was infringement of
his right under A.20(1).
Held: It was held the minimum penalty prescribed by the by the ordinance could
not be said to be greater than what could be inflicted by the court on S under the
law in force at the time he committed the offence. Thus, is not violative of article
20(1).

c) Rule of beneficial interpretation

In Rattan Lal v. State of Punjab
Facts: The appellant committed house trespass and tried to outrage the modesty
of a girl aged 7 years. By an order dated May 31, 1962, he was convicted by
magistrate and sentenced to rigorous imprisonment. He was also ordered to
pay fine. At the time of his conviction, he was 16 years old. The Probation of
Offenders Act, came into force on September 1, 1962 thus he appealed in the SC
that he should be given benefit of the act.
Contention: The government argued that the act is not retrospective as the offence
was committed much before the act came into force.
Held: The SC observed that ex post facto law that mollifies rigour of a criminal
law does not fall within the prohibition of article 20(1).
 d) Judicial interpretation
Facts: Interpreting section 494, IPC, the SC ruled in1995 in Sarla Mudgal v UOI
that the second marriage of a Hindu husband after the conversion to Islam without
dissolving the first marriage would be invalid an he would be guilty of the offence
of bigamy under S.494 of IPC.
Contention: It was later argued in Lily Thomas v. UOI that the law declared by
SC in Sarla Mudgal v. UOI could not be given retrospective effect by virtue of
article 20(1) it ought to be given only prospective operation so that the ruling
cannot be applied to person solemnized their second marriage before the Sarla
Mudgal judgement.
Held: The SC rejected this contention on the ground that it had not laid down a
new law in Sarla Mudgal it only interpreted the law which was already into
existence. It settled the principle that the interpretation of a provision relates back
to the date of law itself and cannot be prospective from the date of judgement
because the court does not legislate but only interprets the law.

2) Article 20 (2)
The clause runs as “no one shall be PROSECUTED and PUNISHED for the same
offence more than once” it contains the rule against double jeopardy.
It is based on the doctrine “Nemo Debet bis vexari autrefois acquit autrofois convict”
it means no man shall be put to peril more than once.
The principle was existing prior to commencement of the constitution.
After the commencement of the constitution it became a fundamental right prior to it,
it was statutory right.

a) In Mukhtiar Ahmed Ansari v. State (NCT of Delhi)

In connection of with an incident of kidnapping and extortion the accused was booked
under TADA and the Arms Act. He was acquitted in the kidnapping case. The SC set
aside the sentence passed against the accused under TADA and Arms Act on the
ground that once the accused was acquitted in kidnapping case the doctrine of
autrefois acquit gets attracted.

b) In Kalawati v State of Himachal Pradesh

A person accused of committing murder was tried and acquitted. The State preferred
and appeal against the acquittal. The accused could not plead Article 20(2) against the
State preferring an appeal against the acquittal as it would not apply as their was no
punishment for the offence at the earlier prosecution and an appeal in substance was
continuation of the Prosecution.

c) In OP Dahiya v. UOI
It was stated that when a person is neither convicted nor acquitted of the charges
against him in the first trail, a retrial in such a case would not amount to double
jeopardy.

d) In Maqbool Hussain v. State of Bombay

Facts: A person was found in possession of gold on the airport which was against the
law at that time. Action was taken on him by the customs authority and the gold was
confiscated. Later, he was prosecuted before the criminal court under FERA.

Issue: whether the plea of autrefois acquit be raised under article 20 (1).
Held: proceedings before the customs authority does not constitute as prosecution of
the appellant and penalty imposed by the authority does not constitute as a
punishment by a judicial tribunal.

3) Article 20(3)
The section embodies that no person accused of any offence shall be compelled to be
witness against himself.
The section contains following components
i) It is right available to accused of an offence.
ii) It is protection against compulsion to be a witness
iii) It is protection against such compulsion resulting in his giving evidence
against himself.

The privilege applies to testimonial compulsion not only consists of oral and
documentary evidences but also through other means as well eg. Electronic media.

a) In M P Sharma v. Satish Chandra

It was held by the SC that 20(3) not only covers oral testimony or statements
in writing of the accused but also the production of a thing or of evidence by
other modes.

b) In State of Bombay v Kathi Kalun Oghad

Issue: whether Article 20(3) is violated when the accused is directed to give
his specimen handwriting, or signature, or impression of his palms and fingers.
Held: A.20(3) is not violated in any of the above situations. The court further
stated that self-incrimination must mean conveying information based upon
personal knowledge of the person giving information and covers only personal
testimony which must depend upon voilition.

c) In PUCL V. UOI
It was held that 20(3) is also not violated when a police officer investigating a
case seeks direction through the court of Chief judicial magistrate ir the court
of chief metropolitan magistrate for obtaining samples of handwriting,
fingerprints, footprints, photographs, blood, saliva, semen, hair, voice of any
accused person reasonably suspected to be involved in the commission of
offence under section 27 of the POTA 2002.

d) In State of Gujrat v. Shyamlal Mohanlal Choksi

A moneylender was prosecuted under the Money Lenders’ Act for not
keeping proper accounts. The prosecutor applied to the Magistrate to produce
the accounts but the court refused to do so keeping in mind Article 20
(3).

e) In Nandini Sathpathy v. P L Dani

J Iyer advocated an expansive interpretation of the phrase compelled
testimony. According to him it is evidence procured not merely by physical
threats or violence but also by physic torture, atmospheric pressure,
environmental coercion, tiring interrogative prolixity, over bearing and
intimidatory methods, and the like. Any mode of pressure subtle or crude,
mental or physical, direct or indirect but sufficiently substantial applied by the
police to obtain information from the accused strongly suggestive of guilt
becomes compulsion and is violative of article 20(1).

In Dinesh Dalmia v. State of Maharashtra

it said that consent played no role in court-ordered narco-tests. This decision
was however based on a technical irregularity. If this decision is to be upheld
as valid, then it can be considered a valuable
landmark in the course of the self-incrimination doctrine in India; this case
however said that while subjecting a person to narco-tests was compulsive, the
revelations made are entirely voluntary; as such it has been held to widespread
criticism by the proponents of this right.

The most recent development as far as consent of the accused for conducting
narco-analysis has been in the form of a stay order by the Supreme Court in
November 2006 on narcoanalysis being carried on K.Venkateshwar Rao in a
case involving Krushi Cooperative Urban Bank. This is considered a welcome
move; however consent implies ‗informed consent‘.
The person giving this consent must not only be made aware of his right
against incriminatory evidence, but he must also in cases of such consent be
 made aware of the procedure to be carried on him and the consequences of
such procedures. These two conflicting judgments however, leave us in hazy
ground with respect to the role of consent in conducting such tests. Such a
vital component of the privilege against Self Incrimination demands better
scrutiny by the courts.

E) Critical analysis

Article 20 of the Constitution is with respect to protection in respect of conviction of

an offence. Equity, justice and good conscience on part of the judiciary is an
essential requirement for them to ensure peace and sovereignty in the society. it is
important to take in the consideration of the rights of the citizens against ex post facto
law, double jeopardy and self-incrimination. Article 20 safeguards the fundamental
rights of every citizen and hence keeps the spirit of the constitution alive, provided
with the various judicial pronouncements have provided justice to the victims and the
prospective victims because of the retrospective application of the law, double
prosecution and self-incrimination. It imposes limitations on the powers of the State,
to enact and enforce criminal laws. 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.