Saturday, 28 May 2022

Right of the accused

 Right of the accused

The Accused's Rights

Article 20 of the Indian Constitution incorporates three fundamental doctrines: the theory of ex post facto law, double jeopardy, and the ban of self-incrimination. It is one of the few Articles that cannot be repealed, even under a state of emergency.

The Indian Constitution's Art. 20 was originally drafted as Article 14 of the Indian Constitution.

Ex post Facto Law is a portion of the natural justice principle, which states that no one should be punished for an act that was not a crime at the time of the act's commission, or should not be subjected to a penalty that was not there at the time of the act's commission.

This may be found in Section 10 of Article 1 of the US Constitution, which Alexander Hamilton referred to as "the characteristic of republic rule."

Section 10's nomenclature specifies that the congress shall not adopt any legislation, implying that no state can establish an ex post facto law; this, according to George Mason of Virginia, is a major error.

Ex Post Facto Legislation

The phrasing is ambiguous, and it might be read as a civil or criminal statute?

Due to dishonest laws such as the Money Act passed in Rhodes Island ten years after the Act's passage, a number of problems about Ex Post Facto Law in general arose. In Calder V. Bull, the Supreme Court eventually settled the question in 1798, stating that ex post facto law should be limited to criminal statutes solely, not civil statutes.

The drafter, Sir. BN Rau, and the other August members did not make the same blunder that was made in the United States.

"Protection from penalty under ex post facto law" was incorporated in the Nehru Committee Report, which developed the Fundamental Rights Chapter.

The initial version of Draft Article 14(1) did not include the phrase "law in force," instead including just the term "law."

The founding fathers reasoned that one should examine the text of Art. 372 of the Indian Constitution. As a result, an amendment was proposed in the Assembly, replacing the term "law" with the phrase "law in effect."

According to Indian law, a legislation issued at a later period cannot be applied to a matter that occurred previously.

Surprisingly, the new legislation may only be employed during the trial stage, not after a conviction.

The Keshavan Madhavan Case is a good example of this argument.

The lawsuit was essentially based on how Art. 13 was interpreted, and when did basic rights enter the picture?

Is it possible to enact fundamental rights retroactively?

The obiter dicta of the ruling draws a link between the accused and those who are already incarcerated for the same Justice Fazal Ali and Justice. 

The Indian perspective on ex post facto laws is influenced by the American model, but it is not a direct representation of it.

It varies in the sense that in America, Ex post Facto Laws can be used to dispute the legality of an enactment. In India, on the other hand, the legality of an enactment cannot be questioned; only the punishment may be imposed.

In this respect, India's Ex post Facto protection is restricted.

Double Jeopardy is a game in which two people compete against one other.

It is based on the Roman Law concept "Non bis idi idem," which means "Now twice for the same thing."

This idea can be found in both common law and civil law nations.

It is said to have originated in the Civil law tradition before spreading to Common law nations.

In 1163 AD in England, there was an important dispute between Henry the II and the Archbishop of Cantbury concerning the authority of ecclesiastical affairs.

By virtue of the Fifth Amendment to the United States Constitution, double jeopardy exists in the United States.

This right was already accessible to subjects in India while the Constitution was being framed under the CrPC, but it was elevated to basic rights status with the implementation of this article.


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