Article 20

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

Around 1946-1948 India was recognised as a part of the United Nation.

Therefore In 1949 Constitution of India was rectified and provisions u/a
20(1) were inserted in the Indian Constitution. It is mentioned under
Article 11(2) of UDHR, 1948 and Article 1 Sec. 9 of U.S. Constitution,
1788, Article 15(1) ICCPR, Article 7 European Conventions of Human
Rights.

• Accused can use this right during conviction or sentence but not a
trial.


 • Protection is available to both citizens and foreigners for criminal
cases.

Exceptions

In Indian constitution, no absolute right is given to its citizens therefore

Art 20(1) subject to certain restrictions.

a) Preventive Detention: In order to maintain peace and to stop the further

commission of an offence in society, preventive detention is used by way
of imprisoning offenders. Article 20(1) implies convicted and offence
words which make it clear that the article has no application to preventive
detention. It imposes restriction against conviction/ punishment etc. but
not against detention. Article 20(1) provides constitutional protection to
individuals charged against criminal offences prohibited by law.

b) Civil liability/Proceeding: In case of civil liberties or civil proceedings,

Art 20(1) shall not be applicable.

c) Repealed statutes: If the accused committed an offence which was

recognised in law when committed but later repealed, in such matters the
court can redress the case applying those repealed statutory provisions. For
e.g. – persons charged under the Terrorism and Disruptive Activities Act
(TADA) and Prevention of Terrorism Act (POTA) continue to languish in
jail even though the laws have been repealed. Even Though such laws have
been languishing but such punishment shall be continued until the tenure
of punishment will be completed. In G.P. Nayyar v. State (Delhi
Administration) AIR 1979: The Supreme Court held that repealed statutes


remain applicable to crimes committed before the statute’s repeal therefore
denied the appeal.

• In the case of Rattan Lal\]]]]]]]]]\-. State of Punjab (1964),( Rule

of beneficial construction: When there are two or more possible
ways of interpreting any statute’s section or word, the meaning
which gives relief and protection to accused should be chosen.
E.g.- A in his board exams commits cheating, as per punishment
of existing laws he gets imprisonment of 2months, later such as
amended and prescribes punishment as fine of Rs. 2,000. As per
beneficial construction rule, A instead of getting punishment of
2months subject to a fine of Rs. 2,000.) the court laid down the rule
of beneficial construction required that an ex-post facto law could be
applied only to reduce the punishment. ((A boy of 16 years
convicted for house trespass and outraging the modesty of an 8 year
old girl. The magistrate sentenced him to six months punishment,
later the Probation of Offenders Act, 1958 came into force which
said a person below age of 21 should not ordinarily be sentenced to
imprisonment. The SC held that the rule of beneficial interpretation
required that ex post facto law can be applied to reduce the
punishment.))

• Hathising Mfg. Co. v. Union of India, AIR 1960 : In June 1957 an

amendment Act was passed which imposed liability on that employer
who is closing their undertakings to pay compensation to their
employees retrospectively & if failure to dischargement could lead to


 imprisonment. The Supreme Court held such liability was a civil
liability which was imposed by the laws, not an offence; therefore
article 20(1) couldn’t apply here.

• Soni Babubhai v State of Gujarat (1991): Appellant's daughter

was married to respondent No. 2 on15.12.1984. She died on
13.8.1986. The appellant filed a criminal complaint against the
respondent viz. daughter's husband and his relatives for an offence
under section 498-A. , the Indian Penal Code was amended and
Section 304-B, offence of dowry death, was inserted in the Code
w.e.f. 19.11.1986. Since the newly inserted offence of dowry death
was triable by a Court of Session, the appellant filed an application
before the Magistrate for committing the case to the court of
Session for trial of offence under section 304-B. The Magistrate
dismissed his application by holding that the amendment being
prospective was inapplicable to the case because the death had
occurred prior to the amendment.

• Kedar Nath v. State of West Bengal, 1954: The accused committed

an offence in 1947, which under the Act then in force was punishable
by imprisonment or fine or both. The Act was amended in 1949,
which enhanced punishment for the same offence by an additional
fine equivalent to amount of money procured by the accused through
the offence. The SC held that the enhanced punishment could not be




 applicable to the act committed by the accused in 1947.

ARTICLE 20(2):

Fundamental right which is guaranteed under Article 20(2) of Constitution

of India incorporates the principles of “autrefois convict” Double
jeopardy which means that person must not be punished twice for the
offence. Doctrine against Double Jeopardy embodies in English common
law’s maxim ‘nemo debet bis vexari, (no man shall be punished twice,
if it appears to the court that it is for one and the same cause). It also
follows the “audi alterum partem rule”. “Autrefois acquit”(Previously
tried and acquitted). Article 20(2) has been adopted from the fifth
amendment of the US Constitution but doesn’t incorporate the principle of
autrefois acquit as incorporated by the US Constitution

(Section 300 of the amended Criminal Procedure Code,1973) , which

states, 300(1) a person who has once been tried by a court of competent
jurisdiction for an offence and convicted or acquitted of offence shall,
while such conviction or acquittal remains in force, not to be liable to be
tried again for the same offence, nor on the same facts for any other
offence for which a different charge from the one made against him might
have been under sub- section (1) of the section 221 or for sub-section (2)
there of. It is to be noted that, the Code of Criminal procedure recognize
both the pleas of autrefois acquit as well as autrefois convict. The
conditions which should be satisfied for raising either of the plea under the
Code are: firstly; that there should be previous conviction or acquittal,


secondly; the conviction or acquittal must be by be a court of competent
jurisdiction, and thirdly; the subsequent proceeding must be for the same
offence. The expression “same offence” shows that the offence for which
the accused shall be tried and the offence for which he is again being tried
must be identical, and based on the same set of facts. {State of Rajasthan v
Hat Singh, (2003)}

Under the American and British Constitution the protection against Double
Jeopardy is given for the second prosecution for the same offence
irrespective of whether an accused was acquitted or convicted in the first
trial. But under Article 20(2) the protection against double punishment is
given only when the accused has not only been ‘prosecuted’ but also
‘punished’, and is sought to be prosecuted second time for the same
offence (Held in Smt. Kalawati v. state of H.P., AIR 1953: In this case,
the appellant was accused of committing murder and was prosecuted, later
acquitted by the district judge. The State appealed against the decision.
The defendants took the plea of double jeopardy. The Court held that the
appeal against acquittal cannot be considered to be the second prosecution,
but the continuation of original prosecution, therefore the rule against
double jeopardy will not play a role in this situation.)

Maqbool Husain v. state of Bombay,1953, the appellant – bought gold to

India – He had not declared it to customs authorities.-they confiscated
gold- later they charged him under FERA- Appellant contention was that
he was already prosecuted and punished as his gold was confiscated -but
SC ruled Sea customs authorities are not court/tribunal and hence
Prosecution under FERA not barred
 Thomas Dana v. the State of Punjab, 1958 – In this, it was held by the
Apex Court that to claim the protection of the rule against double jeopardy
enumerated under Article 20(2), it is necessary to show that

• there was a previous prosecution

• the prosecution led to punishment and

• the accused is being punished for the same offence again.

In Venkataraman v. Union of India,[1954] An enquiry was made before

the enquiry commissioner on the appellant under the Public Service
Enquiry Act,1960 & as a result, he was dismissed from the service. He was
later on, charged for committed the offence under Indian Penal Code & the
Prevention of Corruption Act. The court held that the proceeding held by
the enquiry commissioner was only a mere enquiry & did not amount to a
prosecution for an offence. Hence, the second prosecution did not attract
the doctrine of Double Jeopardy or protection guaranteed under
Fundamental Right Article 20 (2).

It is to be noted that Article 20 (2) will applicable only where punishment

is for the same offence, In Leo Roy v. Superintendent District Jail,[1958]
The Court held: if the offences are distinct the rule of Double Jeopardy
will not apply. Thus, where a person was prosecuted and punished under
sea customs act, and was later on prosecuted under the Indian Penal Code










for criminal conspiracy, it was held that second prosecution was not barred
since it was not for the same offence.

The State of Bombay v. S.L. Apte and anr.,[1961] The Constitution

Bench of this Court while dealing with the issue of double jeopardy under
Article 20(2), held: “To operate as a bar the second prosecution and the
consequential punishment there under, must be for “the same offence”.
The crucial requirement therefore for attracting the Article is that the
offences are the same i.e. they should be identical. If, however, the two
offences are distinct, then notwithstanding that the allegations of facts in
the two complaints might be substantially similar, the benefit of the ban
cannot be invoked. It is, therefore, necessary to analyze and compare not
the allegations in the two complaints but the ingredients of the two
offences and see whether their identity is made out

Kolla Veera Raghav Rao v.Gorantla Venkateswara Rao, 2011- In this, the
difference between Article 20(2) and Section 300 CrPC was discussed and
was held that Section 300 CrPC is wider in the sense that no one can be
tried and convicted for the same offence or a different offence on the same
facts. Article 20(2) leaves a doubt in the minds as to whether a person can
be prosecuted for the same offence on different facts, the section makes it
amply clear that as long as facts are the same, the person cannot be
prosecuted at all. Also Art 20(2) only includes Autrifois convict not acquit.

Article 20(3)
Self incrimination means:A person shall not be asked to make statements
against himself (i.e. self harming statements/confessional statements).

No person accused of any offence shall be compelled to be a witness

against himself

Article 20 (3) does not apply to departmental inquiries into allegations

against a government servant since there is no accusation of any offence.

In Nandini Satpathy v. P.L. Dani,1977 the appellant, a former Chief

Minister was called to the Vigilance Police Station for the purpose of
examination for a case filed against her under the Prevention of Corruption
Act, 1947. During the investigation, she was served with a long list of
questions in writing which she denied to answer and claimed protection
under Article 20(3). The Supreme Court held that the objective of Article
20(3) is to protect the accused from unnecessary police harassment and the
right against self-incrimination is available to witness and the accused in
the same manner, and it is applicable at every stage where information is
furnished. The privilege under Article 20(3) is applied at the stage of
police investigation when the information is extracted.

This right to silence is not limited to the case for which the person is being
examined but further extends to other matters pending against him, which
may have the potential of incriminating him in other matters. It was also
held that the protection could be used by a suspect as well.

In State of Bombay v Kathi Kalu, 1961, it was held that it must be

necessarily shown that the witness was compelled to make a statement
likely to incriminate him. Compulsion is an essential ingredient but if a
 person makes a confession without any inducement, threat or promise
Article 20(3) does not apply. The accused may waive his right against self-
incrimination by voluntarily making an oral statement or producing
documentary evidence, incriminatory in nature.

In the case of Selvi v. State of Karnataka, 2010 the apex court rejected
High Court’s reliance on the utility, reliability and validity of narco
analysis test and other such tests as methods of criminal investigation. The
Court found that it is a requisite compulsion to force an individual to
undergo narco-analysis test, polygraph tests and brain-mapping. The
answers given during these tests are not consciously and voluntarily given,
so the individual is unable to decide whether or not to answer a question,
hence it amounts to testimonial compulsion and attracts protection under
Article 20(3). The Court stated that narco-analysis test is a cruel and
inhuman treatment which violated the right to privacy of an individual.
That courts cannot permit administration of narco-analysis test against the
will of the individual except in cases where it is necessary under public
interest. For this purpose, it is essential that the Union Government should
come out with certain guidelines which are to be strictly followed while
conduction such a test.

1. The permission of the Court and the written consent of the person
undergoing such a test should be made compulsorily.
2. The person who is supposed to undergo such a test must be given all the
necessary details about the test before he is asked to sign the consent form.
3. Control and supervision of the forensic laboratories should be made
under the autonomous bodies like NHRC and the States Human Rights








Commissions.
4. NHRC has suggested that at the time of polygraph test a forensic
psychologist, a psychiatrist and an anaesthetist should remain present.
Similar team can be directed to remain present at the time of Narco
Analysis with the additional safeguard of entire proceeding audio and
videotaped.