We all encounter instances where people are accused of offences and put on trial before the court. The point of concern here is, do these accused persons or convicts have any fundamental rights or any protection against their offences? The Indian Constitution aims to protect the human rights of all the citizens, which are not limited to normal human beings but also apply to accused or convicted persons.
In this article, we will discuss protection in respect of conviction for offences, what are Ex post facto law, Double jeopardy, and the prohibition against self-incrimination.
Article 20 of Part III of the Indian Constitution deals with protection in respect of conviction for offences. Our constitution aims to protect the interest of all. This provision has been enacted to prevent criminals or convicted persons from being exploited or victimized by law enforcement agencies. It is the cornerstone provision of the constitution of India and cannot be set aside event during an emergency.
Article 20 of the Indian Constitution states as follows:
1) A person shall be convicted of an offence only for a violation of the law that was in force when the offence was committed, and the offender will not be subjected to a penalty that is greater than what was prescribed by the law that is in force at the time of committing the offence.
2) A person shall not be prosecuted for the same offence more than once.
3) An accused person shall not be compelled to be a witness against himself.
Now, we will discuss each of these points in detail.
Ex-post facto law
Article 20 (1), the Indian Constitution states that a person shall be convicted of an offence only for a violation of law that is in force when the offence was committed, and the offender will not be subjected to a penalty that is greater than what was prescribed by the law that is in force at the time of committing the offence. It is also called Ex post facto law.
It states that a person cannot be convicted or prosecuted for a criminal offence in nature retrospectively. In simple terms, this article prohibits the retrospective implementation of laws that are criminal.
So, let’s suppose if a person commits an offence that was not enacted at the time of the commission of a crime, then the person will not be convicted in accordance with the new law. And suppose there is an increase in the penalty imposed by the law. In that case, the person will pay the penalty in accordance with the law that existed at the time of the commission of that offence.
Mohan Lal Vs. State of Rajasthan, 2015
The appellant was arrested for an offence under Section 18 of the NDPS Act and Section 457 and 380 of IPC for possessing prohibited articles, trespassing, and committing theft in a dwelling house. It was alleged that 10 kgs. Four hundred twenty gms. Of opium and other articles were stolen from the Malkhana. The appellant made a discovery statement stating where the stolen articles were kept. The appellant contended that when the offence was committed, the NDPS Act did not come into force, and therefore, the offence should be tried under the Opium Act, 1878. And hence, it is violative of Article 20(1) of the constitution.
The court had held that Article 20(1) would not be applicable in this case as the act of possessing the prohibited articles cannot be punished retrospectively. Therefore, if a person is in possession of the prohibited articles on or after a particular date when the statute was enacted, then such person will be punishable.
Now, let’s discuss the next sub-clause.
Article 20 (2), the Constitution of India states that a person shall not be prosecuted more than once for the same offence. It is also called Double Jeopardy. It is based on the principle of “Audi Altermn Partu Rule” which means no person can be punished for the same offence twice.
It aims at safeguarding the accused from undergoing successive criminal proceedings or multiple punishments for the same offence. Therefore, if a person is punished for the same offence twice, such an order will be considered void.
However, this clause does not prevent any person from being convicted, tried, or prosecuted for other offences committed while performing the crime.
Jitendra Panchal Vs. Intelligence Officer N.C.B., 2007
The appellant and four others were charged with smuggling Hashish out of India in October 2002. The Drug Enforcement Agency, the US, and the Narcotics Bureau, India had seized 565.2 kg. of Hashish in Newark, USA. The appellant and others were arrested in Vienna and extradited to the USA. The Drug Director General of the Narcotics Control Bureau (NCB) had recorded the appellant’s statement. The accused were later arrested and prosecuted in India in April 2003. The appellant, who was extradited to the USA, was tried and held guilty of conspiracy charges and possession and distribution of controlled substances and was sentenced to imprisonment for a period of 54 months. After deporting the accused to India in April 2007, he was arrested by NCB officers, presented before the Chief Metropolitan Magistrate, and remanded to judicial custody.
The appellant had made an application before the court stating that the proceedings against the appellant amount to double jeopardy.
Hence, the court had rejected the appellant’s application and extended the judicial custody stating that the charges against the appellant that the USA courts dropped had not been dealt with. Therefore, it does not constitute double jeopardy.
Having discussed the two clauses, let us now understand the last clause.
Article 20 (3), the Indian Constitution states that an accused person shall not be compelled to be a witness against himself. This provision prevents the accused person from self-incrimination.
It means the accused cannot be forced to be a witness or give evidence against themselves. However, the accused may choose to provide information based on their knowledge. Nevertheless, it is worth pointing out that this provision does not exempt from obtaining the accused’s thumb impressions or specimen signatures or conducting a medical examination of the accused. Additionally, the “Right to silence” cannot be used in cases where documents or objects (like weapons, jewellery, etc.) are searched, recovered, and seized from the accused’s possession.
We should also look into what other statute states about self-incriminating statements.
Section 161(2) of the Code of Criminal Procedure states that when an authority is examining an accused, they are bound to answer all the queries truthfully, except those questions which have the probability to be used against him/her.
As per Section 25 and 26 of the Indian Evidence Act, 1872, a confession statement or self-incriminating statement made by an accused before a police officer is inadmissible and cannot be used to prove against the accused.
However, Section 27, Indian Evidence Act, 1872, if an accused gives a statement in police custody. That statement leads to discovering incriminating objects such as weapons, jewellery, etc. Therefore, such a statement will be admissible and can be proved against the accused.
If A states in police custody that he killed Z and buried his body in a garden near my house. And as put forward by A, the body is traced at the place mentioned. A’s statement is admissible under Section 27 of the Evidence Act in such a case. It will not be treated against Article 20 of the Constitution.
State of Bombay Vs. Kathi Kalu Oghad and Ors, AIR 1961 SC 1808
The court held that Section 27 of the Evidence Act is not violative of Article 20(3) of the Constitution if there was no compulsion used against the accused to give evidence or information. The court had further held that, if the accused is made to give any specimen signature or handwriting, or impression of his/her thumb, fingers, foot or palm to the investigating officer under the order of the court for comparison purposes, then such act will not constitute an infringement of Article 20(3).
Article 20 is an essential provision of the Indian Constitution. It aims to give the accused a fair and reasonable chance to protect them against the offence. Article 20 is divided into three clauses: post facto law, double jeopardy, and self-incrimination. It states that an accused cannot be prosecuted for an offence retrospectively. A penalty imposed for a crime cannot be greater than the penalty imposed at the commission of an offence. An accused cannot be convicted for the same offence twice. Lastly, an accused person cannot be compelled to be a witness or give a shred of evidence against himself.