Article 20 of the Constitution of India

Article 20 deals with Protection in respect of conviction for offences.

1) No person shall be convicted of any offence except for violation of the 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.
2) No person shall be prosecuted and punished for the same offence more than
once.
3) No person accused of any offence shall be compelled to be a witness against
himself.
Protection Against Ex-post Facto Laws - Article 20 (1)
1) The expression ‘Ex-post Facto Law’ is based on the law of American
Constitution. Under the American system the term ex-post facto law meant a law
which imposes a punishment for an act which was not punishable at the time of the
commission of the offence or imposes additional punishment to what was
prescribed at the time of commission of the offence or change in the rule of
evidence or procedure requiring conviction.
2) It means ‘a law, which imposes penalties or convictions on the acts already done
and increases the penalty of such acts. Ex Post Facto Law imposes penalties
retrospectively.
Article 20 (1) imposes a limitation/restriction on the law making power of the
legislature.
Ex Post Facto Laws are of 3 kinds as follow:
i) A law which declares some act or omission as an offence for the first time
after the completion of that act or omission.
ii) A law which enhances a punishment or penalty for an offence subsequent
to the commission of that offence.
iii) A law which prescribes a new and different procedure for the
prosecution of an offence subsequent to the commission of that offence.
Article 20 (1) comprises of two parts:
i) The first part says that ‘No person shall be convicted of any offence except for
violation of the law in force at the time of the commission of the act charged as an
offence’.
❖ It means that if an act is not an offence on the date of its commission, a law
enacted in future cannot make it so.
Illustration: Section 304 - B was enacted on 19-11-1986 making a dowry death
punishable as an offence under IPC. A new offence has thus been inserted in the
IPC with effect from 19-11-1986. Because of Article 20 (1) Section 304-B cannot
be applied to dowry death which took place in 1984 i.e. prior to the enactment.
Section 304-B is a substantive provision creating a new offence subsequent to the
commission of the offence attributed to the respondent in the instant case and so he
could not be tried under Section 304-B.
❖ This right is available to an individual only against conviction or sentence
 for a criminal offence under ex post facto law and not against the trial.
Pareed Lubha v/s Nilambaram
(AIR 1967 Ker 155)
The Court held that if the non-payment of the Panchayat Tax was not an offence on
the day it fell due, the defaulter could not be convicted for the omission to pay
under a law passed subsequently even if it covered older dues.
ii) The second part of clause​ (1) protects a person from a penalty from greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence.
In other words a person cannot be made to suffer more by an ex-post facto law than
what he would be subjected to at the time he committed an offence.
Kedar Nath v/s State of West Bengal
(AIR 1953 SC 404)
Facts​: The accused committed an offence in 1947, which under the Act then in
force was punishable for the same offence by an additional fine equivalent to the
amount of money procured by the accused through the offence.
Judgement​: The Supreme Court held that the enhanced punishment could not be
applicable to the act committed by the accused and hence set aside the additional
fine which was imposed by the Amended Act.
Shiv Dutt Rai Fateh Chand v/s Union of India
(AIR 1984 SC 1194)
It has been held that imposing or increasing a penalty with retrospective effect for a
violation of a taxing statute does not infringe Article 20 (1).
The word penalty under a tax law levied by department authorities for violation of
statutory provisions. A penalty imposed by such an authority is only a civil
liability, though penal in character.
Article 20 (1) applies when a punishment is imposed for offences through criminal
prosecution (even under tax laws).
Protection Against Double Jeopardy - Article 20 (2)
The roots of the doctrine against double jeopardy are to be found in the well
established Maxim of the English Common Law, Nemo debet bis vexari meaning
A man must not be put twice in peril for the same offence.
Article 20 (2) runs “No person shall be prosecuted and punished for the same
offence more than once”. This rule is known as double jeopardy.
Under Article 20 (2) the protection against double punishment is given only when
the accused has not been prosecuted but also punishment is sought to be prosecuted
second time for the same offence.
The use of the word ‘prosecution’ thus limits the scope of the protection under
Article 20 (1). The word prosecution as used with the word ‘punishment’ embodies
four essentials for the application of double jeopardy rule.
a) The person must be accused of an offence.
b) The proceeding or the prosecution must have taken place before a court or
judicial tribunal.
c) The person must have been prosecuted and punished in the previous
proceedings.
d) The offence must be the same for which he was prosecuted and punished in
the previous proceedings.
Maqbool Husain v/s State of Bombay
(AIR 1953 SC 325)
Facts: The appellant brought some gold from a foreign country without making
any declaration to that effect. The Customs Authorities confiscated/seized the gold
under the Sea Customs Act, 1898. Subsequently, he was also charged under
Section 8 of the Foreign Exchange Regulation Act, 1947 and prosecuted.
Judgement: The Court Held that the Sea Custom Authorities were not a court or
judicial tribunal and adjudging of confiscation under the Sea Customs Act did not
constitute a judgement of judicial character necessary to take the plea of the double
jeopardy. Hence the prosecution under the Foreign Exchange regulation Act is not
barred.
Thomas Das v/s State of Punjab ​(AIR 1959 SC 375)
The Supreme Court laid down that - to invoke protection under Article 20 (2), the
following conditions are to be satisfied.
1. That there was a previous prosecution.
2. That as a result of this the accused was punished.
3. That the punishment was for the same offence.
Kalawati v/s State of H.P. ​(AIR 1953 SC 131)
The Court held that the appeal is the continuation of the earlier trial and not a new
trial of the same offence and the appeal against the order of acquittal would not
attract.
Protection Against Self Incrimination - Article 20 (3)
Article 20 (3) runs - “No person accused of any offence shall be compelled to be a
witness against himself”.
The word self incrimination means conveying information based upon personal
knowledge of the person giving information involving him to be the prime part
taken in the offence.
Statements are two kinds, namely -
a) Self serving statements
b) Self harming statements
It is based on a Maxim - “Nemo tenetur prodere accusare seipsum” which means
that no man is bound to accuse himself.
5) Ingredients:
1) The person must be accused of an offence.
2) The protection is against compulsion to be a witness.
3) The compulsion relates to giving evidence against himself.
M. P. Sharma v/s Satish Chandra
(AIR 1954 SC 300)
Facts: A murder accused was identified by the Trial Court and convicted based
upon handwriting samples taken at three different times, under police custody. The
convict appealed to the High Court which held that the evidence of specimen
handwriting was tantamount to compulsion, as it was obtained under police
custody, thereby making the evidence inadmissible. Holding that the identity of the
respondent was not established beyond a reasonable doubt under other available
evidence, the accused was acquitted. The State of Bombay then appealed to the
Apex Court which led to the judgement under review.
The Supreme Court observed that the right under Article 20 (3) embodies the
following three essentials:
1) It is a right pertaining to a person who is accused of an offence.
2) It is a protection against such compulsion to be a witness.
3) It is a protection against such compulsion relating to his giving evidence
‘against himself’.
The Court held that Article 20 (3) is protection against compulsion resulting him
giving evidence ‘against himself’. This protection is not available in respect of the
statement in evidence at the trial in the court-room.

State of Bombay v/s Kathi Kalu Oghad

(AIR 1961 SC 1808)
Issues before the Court​:

These are the issues for deliberation:

● Whether methods of gathering evidence such as taking fingerprint

samples, handwriting samples, DNA collection etc. are constitutionally
valid methods.
● To solve the above question it is important to analyze the term “witness”
in Article 20(3) and find out the ambit of its inclusion.
● Whether being in police custody ipso facto means that the witness had
been compelled or not.
The following proposition of law emerge out of the majority judgement:
1) “To be a witness” is not equivalent to “furnishing evidence”.
2) “To be a witness” means imparting knowledge in respect of relevant facts by
oral statement or a statement in writing made or given in a court or
otherwise.
3) The expression “to be witness” has a wider meaning than its grammatical
sense. It means bearing testimony in court or out of court by a person
accused of an offence orally or in writing.
4) Giving thumb impression or impressions of foot or palm or fingers or
 specimen writing or showing part of the body by way of identification are
not included in the expression “to be a witness”.
5) The fact that the accused was in police custody at the time when the
statement in question was made, would not, by itself, as a proposition of law,
lead to inference that he was compelled to make the statement.
The Court held that if the self-incriminatory information has been given by an
accused person without any threat or coercion that will be admissible in evidence
and will not be hit by the provisions of Article 20(3), for the reason that there has
been no compulsion.