27-09-2022

ARTICLE 20 - PROTECTION IN RESPECT OF

CONVICTION FOR OFFENCES
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• (1) 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 lime 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.

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PROTECTION AGAINST
E X -P O S T - F A C T O L A W
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• An ex-post-facto law is a law which imposes penalties retroactively, that is,

• upon acts already done, or
• which increases the penalty for the past acts.
• Exp-1:
• A person does an act in 1954 which is not then unlawful.
• A law is passed in 1956 making that act a criminal offence and seeking to punish
that person for what he did in 1954.
• Exp-2:
• Punishment prescribed for an offence in 1954 is six months imprisonment, but the
punishment for the same offence is increased in 1955 to imprisonment for a year
and is made applicable to the offences committed before 1955.

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ARTICLE 20(1) : FIRST PART

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• Article 20(1) has two parts.

• Under the first part, no person is to be convicted of an offence except
for violating a ‘law in force at the time of the commission of the act
charged as an offence.
• A person is to be convicted for violating a law in force when the act
charged is committed.
• A law enacted later, making an act done earlier (not an offence when
done) as an offence, will not make the person liable for being
convicted under it.
• An immunity is thus provided to a person from being tried for an act,
under a law enacted subsequently, which makes the act unlawful.

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CHANGE OF PROCEDURE OR OF COURT

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• What is prohibited under Art. 20(1) is only conviction or sentence, but not
trial, under an expost-facto law.
• The objection does not apply to a change of procedure or of court.
• A trial under a procedure different from what obtained at the time of the
commission of the offence, or
• by a court different from that which had competence at the time cannot
ipso facto be held unconstitutional.

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ARTICLE 20(1) : SECOND PART

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

It immunizes a person from a penalty greater than what he might have incurred at the time
of his committing the offence.
• A person cannot be made to suffer more by an ex-post-facto law than what he would
be subjected to when he committed the offence.
• Art. 20(1) applies when a punishment is imposed for offences through criminal
prosecution (even under tax laws).

An ex post facto law which only mollifies the rigours of criminal law is not
within the prohibition of Art. 20(1)

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PRINCIPLE OF DOUBLE JEOPARDY

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• The roots of the doctrine against double jeopardy are found in the well-
established maxim of the English Common law, Nemo debet bis vexari,
meaning that a man must not be put twice in peril for the same offence.
• When a person has been convicted for an offence by a competent court, the
conviction serves as a bar to any further criminal proceedings against him for
the same offence.
• If a person is indicted again for the same offence in a court, he can plead, as
a complete defence, his formal acquittal or conviction.

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SCOPE OF ARTICLE 20(2)

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• The ambit of Art. 20(2) is narrower than the English or the American rule
against double jeopardy.
• The Indian provision enunciates only the principle of autrefois convict but not
that of autrefois acquit.
• In Britain and the U.S.A., both these rules operate and a second trial is barred
even when the accused has been acquitted at the first trial for that offence.
• Article 20(2) may be invoked only when there has been prosecution and
punishment in the first instance.

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PROSECUT I ON
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• A limitation read into Art. 20(2) is that the former ‘prosecution’ (which indicates
that the proceedings are of a criminal nature)
• must be before a court of law, or a judicial tribunal required by law to decide
matters in controversy judicially on evidence and on oath which it must be
authorised by law to administer, and
• not before a tribunal which entertains a departmental or administrative
enquiry, even though set up by a statute, but not required to proceed on legal
evidence given on oath.

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P R I V I L E G E A G A I N S T S E L F - I N C RI M I N A T I ON :
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

A R T I C LE 2 0 ( 3 ): T H E U. S . A .

• The Fifth Amendment of the U.S. Constitution provides inter alia:

• "No person.......shall be compelled in any criminal case, to be a witness against
himself."
• The privilege against self-incrimination has been held to apply to witnesses as well
as parties in proceedings—civil and criminal.
• It covers documentary evidence and oral evidence, and
• extends to all disclosures including answers which by themselves support a
criminal conviction, or furnish a link in the chain of evidence needed for a
conviction.

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BRITAIN
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• It is a fundamental principle of the common law that a person accused of an

offence shall not be compelled to discover documents or objects which
incriminate himself.
• No witness, whether party or stranger is, except in a few cases, compellable to
answer any question or to produce any document the tendency of which is to
expose the witness (or the wife or husband of the witness), to any criminal
charge, penalty or forfeiture.

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INDIA
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• The privilege against self-incrimination is a fundamental canon of common-

law criminal jurisprudence. The characteristic features of this principle are—

(i) that the accused is presumed to be innocent,

(ii) that it is for the prosecution to establish his guilt, and
(iii) that the accused need not make any statement against his will.

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COMPONEN TS OF RIGHT U/A 20(3)

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

• (1) it is a right available to a person ‘accused of an offence’;

• (2) it is a protection against ‘compulsion’ ‘to be a witness’;
• (3) it is a protection against such ‘compulsion’ resulting in his giving
evidence ‘against himself’.

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