3. Introduction
• Article 20 of the Constitution appears in the chapter on 'Fundamental
Rights' and deals only with the constitutional protections to a person
accused and convicted of an offence.
• These safeguards have been elevated to the pedestal of constitutional
rights and replicate the natural justice principles of fair trial in the
administration of criminal justice.
• Article 20 of the Constitution guarantee protection in certain respects
against conviction to a person who is an accused of a criminal offence,
by prohibiting-
1. Retrospective criminal legislation, commonly known as ex post
facto legislation.
2. Punishment for the same offence more than once or double
jeopardy.
3. Compulsion to give self-incriminating evidence.
4. Imp Amendment
• Realizing the significance of these constitutional
safeguards, the Constitution of India was amended by the
Constitution 44th (Forty-fourth) Amendment Act, 1978 to
the effect that Article 20 cannot be suspended even
during a national emergency.
6. Provides protection to the persons accused of
crimes against ex-post facto law.
• It prohibits the legislature to make retrospective criminal
Laws
• Article 11(2) of the Universal Declaration of Human
Rights
• The first part of clause(1) of Article 20 provides that:
"No person shall be convicted of any offence
except for violation of law in force at the time
of the commission of the act charged as an
offence "
7. Meaning:
• This means that if an act is not an offence at the date of
its commission it cannot be an offence at the date
subsequent to its commission.
Interpretation:
The protection is for CONVICTION AND SENTENCE only
and not for PROSECUTION and TRAIL under Retrospective
laws.
8. • To give retrospective effect to a law by bringing within its operation,
acts committed prior to the enactment of the law in question would
be prejudicial to the interests of any person, if the act when done was
innocent and attracts penal liability by virtue of a subsequent law.
• Hence, Art. 20(1) limits the right of the sovereign legislature in a
limited manner. Such laws are regarded as inequitable and abhorrent
to the notions of justice and, therefore, there are constitutional
safeguards against such laws.
9. • This Article in broad import, prohibits conviction and
sentence under ex post facto laws. No one should be
punished for something, which was lawful when it was
done. This would be highly inequitable, unjust and
contrary to the universal notion of fairness and justice.
• This immunity does not extend to a civil liability11 and is
restricted only to conviction or sentence .
10. • If an act when committed is not an offence as per
the law in force, no future law can make it an
offence.
• An immunity is provided to a person from being
tried for an act, under a law enacted
subsequently, which makes the act unlawful.
12. PROTECTION AGAINST DOUBLE JEOPARDY
ARTICLE 20(2)
• The Clause (2) provides protection to the accused persons
against Double Jeopardy.
• This Article incorporates the common law plea of autrefois
convict.
• No person should be put in jeopardy of his life or liberty more
than once.
• This Article incorporates the common law plea of autrefois
convict.Article 20 (2) bars the re-trial of a person, when he
has been convicted and sentenced for the same
offence.
Meaning:-
The clause (2) declares that no person shall be
PROSECUTED AND PUNISHED for the same offence more than
once. If it done so the accused can take defense under Article
20(2).
13. How to check Double Jeopardy Rule:-
• The Person must be accused of an offence. The word offence
as defined in General Clauses Act means any act (or)
omission made punishable by law for the time being in force.
• The proceeding or the prosecution must have taken
place before a 'court' (or) Judicial Tribunal.
• The person must have be the same for which he was
prosecuted and punished in the previous proceedings.
Note:-
Proceeding before departmental and Administrative
Authorities Cannot be a proceeding of Judicial Nature.
14. Conditions
If the following conditions are complied with protection
given in Art 20(2) would be available to a person:
a) The person must be accused of an offence
b) The proceedings must have taken place before the court
c) That person must have been punished after his
prosecution by the Court
d) The person must be prosecuted for the second time
before the court.
e) The offence must be same in both the cases.
16. • The Court held that Art 20(2) doesn’t apply where a
person is prosecuted for a continuing offence.
• For Continuing offences Art 20(2) has no application.
17. Imp Note
• The Article does not give immunity from proceedings
other than proceedings before a court of law or a judicial
tribunal.
• Hence, a government servant who has been punished for
an offence in a court of law may yet be subjected to
departmental proceedings for the same offence or vice-
versa.
• The proceedings before the sea customs authorities or the
adjudicatory authorities functioning under the Foreign
Exchange Regulation Act are of “adjudicatory” nature and
character and are not “criminal proceedings”.
19. • In order to invoke the protection of Article 20(2) the must have been
a prosecution and punishment in respect of the same offence before
a Court of law or Judicial Tribunal, Required by law to decide the
matters in controversy, Judicially on evidence on oath which is must
be authorised by law to administration and not before a Tribunal
which entertains a departmental or a statute but not required to
proceed on legal evidence given on oath.
20. Fact of the case:-
• Accused Brought gold from foreign country Sea Authority I.e. Sea
Customs Authorities Seized the Gold the he is prosecuted under FEM
Act.
• The claimed that according to Sea Customs Law he is Punished by
Seizing Gold.
• Again Prosecution under FEMA shall have defence under Article 20(2)
21. Verdict :-
• Supreme Court held that Article 20(2) defense can be claimed only
when prosecution and punishment if done by Judicial Authorities
except department enquiry, Quasi Judicial Authority Administrative
Authority Prosecution and Punishment Done.
Otherwise
• Protection under article 20(2) cannot be availed .
23. Article 20(3)
PROHIBITION AGAINST SELF INCRIMINITION
• nemo tenetur seipsum accusare – no one can be
compelled to incriminate himself
• Under article 20(3) provides that no person
accused of any offence shall be compelled to be
witness against himself
Meaning :-
The guarantee extends to any person accused
of an offence and prohibits all kinds of compulsion
to make him witness against himself.
24. An analysis of Art.20 (3) brings out three essential components of the
immunity contained in our Constitution, namely:
i. It is a right pertaining to a person accused of an offence
ii. It is a protection against compulsion to be a witness; and
iii. It is a protection against such compulsion resulting in his
giving evidence against himself.
Note: If any of these ingredients do not exist, Article 20(3)
cannot be invoked.
25. Nandini Satpathy Vs P.L. Dani
AIR 1978 SC 1025
• Corruption charges inflicted
• For clarification asked accused to visit police- station and
asked the police to answer the investigated question – He
asked by taking defiance of Article 20(3) he did not answered
to question the police- people inflicted sec 179 of The section
says that if person to whom it is question has to be
answered.
• One side 170 IPC and other side A-20(3)
• S.C. finally held that 20(3) defence is applicable & need not
answer according to sec 179 IPC.
• Sec161 of CrPC tells that if an question asked regarding
inflicting of crime can be denied to answer.
26. Forcible administration of scientific techniques/tests
like narco analysis, Brain Electrical Activation Profile
(BEAP) test and Polygraph test, during the course of
investigation would be an unjustified intrusion into mental
privacy and would be violative of the “right against self-
incrimination”
Selvi v State of Karnataka (2010) 7 SCC 263
