Article. 20 of the Indian Constitution subsumes within itself three important doctrines known as
Doctrine of Ex post facto Law, Double jeopardy and prohibition of self incrimination, this is one of the
Articles which cannot be done away even during Emergency.
The Art 20 of the Indian Constitution was initially draft Article. 14 of the Indian Constitution.
The term Ex post Facto Law is a part of natural justice principle and the same is based on the principle
that no body should be punished for commission of an Act which was not a crime at the time of
commission of the Act, or should not be inflicted with a punishment which was not present at the time
of commission of the Act.
This can be found in Section 10 to the Article. 1 of the US Constitution- It was called as the hallmark of
republic governance by Alexander Hamilton.
The nomenclature of Section 10 states that the congress shall not pass any legislation which is no state
can pass any ex post facto Law, this was pointed out by George Mason of Virginia as a big blunder.
Ex Post Facto Law
The wording is open and it can be interpreted to mean both civil as well as criminal statute?
Ten years after passing of the Act due to unscrupulous legislation such as the Money Act which was
passed in the Rhodes Island led to series of questions regarding Ex Post Facto Law in general.
The Court finally in 1798 in Calder V. Bull answered the question to state that Ex post Facto Law should
be restricted only to Criminal statute and not to civil statute.
Sir. BN Rau the drafter and other August members did not commit the same mistake which was done in
US.
The Nehru Committee Report which drafted the Fundamental Rights Chapter had included a provisions
stating “ Protection from punishment under Ex Post Facto Law”
The Draft Article. 14(1) as it originally stood did not have the word “ Law in Force”, it contained simply of
the word “ Law”.
It was reasoned by the founding fathers’ that one should have a look at the language of Art. 372 of the
Indian Constitution.
Correspondingly an amendment was mooted in the Assembly and the word “Law in force” was
incorporated in the place of “ Law”.
In the Indian position, any law which was passed at a later date, cannot be given effect to for a case
which happened before.
Interestingly, the new legislation can be used in trial stage and not in conviction stage.
This point can be clearly illustrated through Keshavan Madhavan Case.
The case primarily relied on the interpretation of Art. 13 and when did the fundamental rights came into
picture?
Can fundamental rights be brought in with retrospective force?
The obiter dicta of the judgment drawing parallel with the accused who are living in prison for the same
Justice Fazal Ali and Justice. BK Mukherjee’s dissenting opinion on repealed Act
The Indian position of Ex post facto Laws draws inspiration from the American system but is not a true
reflection of the American model.
It differs in the aspect that, in America you can also challenge the validity of an enactment on the basis
of Ex post Facto Laws. On the other hand, in India, the validity of the an enactment cannot be
challenged only the punishment cannot be granted.
In that sense the Ex post Facto protection in India is limited in India.
Double Jeopardy
It is based on the principle of Roman Law “ Non bis idi idem”- “ Now twice for the same one”
This principle can be broadly found both in Common law countries as well as civil law countries.
It is opined that it originated in the Civil law tradition and later travelled to the Common law countries.
There is an interesting instance in 1163 AD in England between henry the II and the Archbishop of Cant
burry, over the jurisdiction of the religious matters.
Double jeopardy can be found in the American Constitution by virtue of the Fifth Amendment to the US
Constitution.
In India when the Constitution was being drafted, this right was already available to the subjects under
CrPC, the same was raised to a fundamental rights stature subsequent to the enactment of this
provision.
It was a situation of a David v. Goliath and the state with its financial might should not be allowed to
make repeated attempts to continue a concluded matter, which will only make the individual to live in a
prolonged state of anxiety.
The word prosecution as used in Art. 20 (2) embodies the following three
Essentials:
There must be a person accused of an offence. The word ‘offence’ has to be taken in the sense in which
it is used in the General Clauses Act.1897 as meaning “an act or omission made punishable by any law
for the time being in force
The proceeding or the prosecution should have taken place before a ‘court’ or ‘judicial tribunal’. The
revenue authorities like the seacustom authorities, are not judicial tribunals.
Likewise, proceedings before a tribunal which entertains departmental or administrative enquiries
cannot be considered as proceedings in connection with prosecution and punishment.
If a person has been prosecuted for an offence but acquitted, then he can be prosecuted for the same
offence again and punished.
In Kalawati v. State of Himachal Pradesh 20 a person accused of committing murder was tried and
acquitted. The state preferred an appeal against the acquittal. The accused could not plead Article 20(2)
against the appeal.
Bihar v. Murad Ali Khan the Supreme Court held that in order for the prohibition to apply under Article
20(2), the same act must constitute an offence under more than one Act. If there are two distinct
separate offences with ingredients under two different enactments, a double punishment is not barred.
In the case of Maqbool Hussain v. State of Bombay, a person arrived at an Indian airport from abroad.
He was found in possession of gold which was against the law at the time. Action was taken against him
by the customs authorities and the gold was confiscated. Later he was prosecuted before a criminal
court under the Foreign Exchange Regulation Act. The question was whether the plea of autrefois acquit
could be raised under Art. 20(2). The Supreme Court came to the conclusion that the proceedings before
the customs authorities did not constitute ‘prosecution’ of the appellant, and the penalty imposed on
him did not constitute ‘punishment’ by a judicial tribunal.
Protection Against Self Incrimination
Article. 20(3) is based on the idea that no man should be forced to be an accused.
The right gradually evolved in common law through protests against the inquisitorial and manifestly
unjust methods of interrogation of accused persons, back in the middles ages in England.
This right is one of the fundamental canons of British System of criminal jurisprudence which the United
States of America adopted from the British legal system and incorporated it in their Constitution as “no
person shall be compelled in any case to be a witness against himself”- Fifth amendment to the US
Constitution,The Miranda Rights.
The right against self-incrimination was afforded by the courts in consonance with the principles of an
adversarial system of jurisprudence.
The rationale is quite similar to the one which we discussed under Article. 20(2) of the Constitution.
This case explained that the right lies for the protection of the accused by the improper compulsion of
the authorities, thereby contributing to the avoidance of the miscarriages of justice.
This provision contains the following ingredients:
It is a right available to a person “accused of an offence”.
It is a protection against-compulsion to be a witness.
It is a protection against such ―compulsion‖ resulting in his giving evidence – against himself.
FIR is one of the first stage in the Criminal trial, if there is a FIR filled against someone, ca they claim the
right to self incrimination under this Article
This right is applicable to both the accused as well as witness subsequent to the landmark judgment of
the Supreme Court in Nandhini satpathy case.
Nandhini satpathy case also granted the right to remain silent.
Kathi Kalu Oghad case and the statutory infirmity with Sec 73 of the Evidence Act.
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