Article 20 Indian Constitution:The Constitutional Shield for an Accused Person

In the architecture of India’s fundamental rights, Article 20 stands as a crucial pillar of the criminal justice system, offering a trinity of protections to any person accused of an offence. It is a fundamental guarantee against arbitrary and excessive punishment by the State. Unlike many other rights that were suspended during the Emergency, the Supreme Court in the celebrated ADM Jabalpur case dissenting opinion, and later affirmed by the 44th Amendment, held that the rights under Article 20 are non-derogable. This article provides an in-depth review of its three clauses, the legal doctrines they embody, and their interpretation by the judiciary, which has consistently fortified the rights of the accused against the coercive power of the State.

Article 20 protection against ex post facto laws

Clause (1): Protection Against Ex Post Facto Laws

“(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 time of the commission of the of⁴fence.”

This clause provides protection against what are known as ex post facto laws, which are laws that have a retrospective effect. It offers two distinct safeguards:

1. No Retrospective Criminalization: A person cannot be convicted for an act that was not considered an offence by a law in force at the time it was committed.⁷ This principle of legality ensures that individuals have fair warning of what conduct is criminal, preventing the State from creating new crimes and applying them to past actions.
2. No Enhanced Punishment: An accused person cannot be subjected to a penalty greater than what was prescribed by the law in force at the time the offence was committed.⁸ If a new law increases the punishment for a particular crime, it cannot be applied to someone who committed the crime before the law was changed.⁹

However, the Supreme Court has clarified that this protection is only against conviction and sentencing under a retrospective criminal law. It does not bar a trial under a new procedural law.¹⁰ Furthermore, if a retrospective law reduces the punishment for an offence, the accused is entitled to the benefit of that reduced punishment. This protection is a cornerstone of a predictable and fair legal system.

Article 20(2) double jeopardy explained

Clause (2): Protection Against Double Jeopardy

The second clause provides a safeguard against being punished multiple times for the same crime:¹¹

“(2) No person shall be prosecuted and punished for the same offence more than once.”

This is the Indian expression of the legal doctrine of double jeopardy, rooted in the common law maxim nemo debet bis vexari (no man shall be put in jeopardy twice for the same offence). For this protection to be invoked, three conditions must be met:

1. The person must have been prosecuted before a court or judicial tribunal.
2. The person must have been punished as a result of that prosecution.
3. The subsequent prosecution must be for the same offence.

The key phrase here is “prosecuted and punished.” This means that if a person was prosecuted but acquitted, they can be tried again, for instance, on appeal by the state. Similarly, departmental proceedings (like those against a government servant) are not considered “prosecution” in the criminal sense. Therefore, a person can face a departmental inquiry and a separate criminal trial for the same act without violating Article 20(2), as established in cases like Maqbool Hussain v. State of Bombay (1953).

Clause (3): The Right Against Self-Incrimination

The third and most frequently debated clause protects the right to silence of an accused:

“(3) No person accused of any offence shall be compelled to be a witness against himself.”

This fundamental principle ensures that the burden of proving guilt lies entirely on the prosecution and that the State cannot coerce an accused person into confessing or providing incriminating evidence against themselves.¹² The key ingredients are:

1. “Person accused of an offence”: The protection is available only to a person who has been formally accused in a First Information Report (FIR) or a criminal complaint. It does not apply to witnesses in a general inquiry.
2. “Compelled”: This implies the use of duress, force, or threat, whether physical or psychological. A voluntary confession or providing evidence without compulsion is not prohibited.¹³
3. “To be a witness against himself”: The Supreme Court has interpreted this phrase extensively. It protects against being forced to provide “testimonial” evidence.

The landmark judgment in Selvi v. State of Karnataka (2010) profoundly clarified this right. The Supreme Court held that involuntary administration of scientific tests like narcoanalysis, polygraph (lie-detector) tests, and Brain Electrical Activation Profile (BEAP) tests are testimonial in nature and their forced use violates Article 20(3).¹⁴ The Court ruled that no individual could be forcibly subjected to these techniques, as they intrude upon an individual’s mental privacy and compel them to communicate information against their will.

However, the Court has distinguished this from the compulsory collection of physical or non-testimonial evidence. In State of Bombay v. Kathi Kalu Oghad (1961), an 11-judge bench held that compelling an accused to provide handwriting samples, thumb impressions, fingerprints, or blood samples does not violate Article 20(3).¹⁵ The rationale is that these are not “testimonies” but are forms of identification that do not require the accused to convey any personal knowledge. This distinction remains crucial in modern investigations involving biometrics and other physical evidence.

The Unbreachable Sanctity of Due Process

Article 20 of the Indian Constitution is a powerful affirmation of the principles of a fair trial and due process.¹⁶It ensures that the criminal justice system operates with predictability, fairness, and a deep respect for individual dignity. By protecting individuals from retrospective laws, multiple punishments, and forced self-incrimination, it places crucial checks on the investigative and prosecutorial powers of the State. In a world of evolving technology and investigative methods, the timeless principles of Article 20 serve as an unwavering constitutional safeguard, ensuring that the process of justice does not itself become an instrument of oppression.