Article 20
“Against Eternal injustice, man must assert justice and to protest against universe of grief he must create happiness”- Albert Camus
The text of Article 20 pulsates with an exalted sense of proportionality in the context of criminal justice. Article 20 reads as under:-
- Protection in respect of conviction for offences
(1) No person shall be convicted of any offence except for violation of the 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 offence
(2) No person shall be prosecuted and punished for the same offence more than once
(3) No person accused of any offence shall be compelled to be a witness against himself
Analogous Provisions in Other Constitutions:
This Article corresponds to (i) Article 1, ss. 9(3) and 10 of the Constitution of the United States; (ii) Article 15(5) of the Constitution of Eire 1937; (iii) Article 39 of the Japanese Constitution of 1946; and (iv) Article 1193) of the Constitution of Nepal 1962.
International law
This Article has close relationship with (i) Article 11(2) of the Universal Declaration of Human Rights 1948; (ii) Article 15(1) of the U.N. covenant on Civil and Political Rights 1966.
Corresponding law
- Section 300 of the Criminal Procedure Code 1973; and (ii) section 26 of the General clauses Act 1897 are correlated to Article 20.
The text of Article 20 glowing with spirit of justice reads as under:
Sovereign Legislature is competent to enact retrospective laws. However, as regards criminal legislation, Article 20 speaks of violation of law in force at the time of the commission of the act charged as an offence. It prohibits making of ex post facto implication of any person in criminal law within folds of new limbs as may be added by amendments in the criminal law subsequent to the time of commission of offence. It also prohibits infliction of penalty greater than which might have been inflicted under the law which was in force when the ‘Act’ was committed. The prohibition contained in this Article does not bar passing of the retroactive law (substantive criminal law) but bars conviction under such law (Kedarnath Bajoria v State of West Bengal AIR 1953 SC 404).
There is nothing in this Article which creates a vested right in any course of procedure (UOI v Sukumar Pyne AIR 1966 SC 1206)
The word ‘offence’ is not defined in the Constitution. The definition in Section 3(38) of the General Clauses Act, 1897 is to be applied. Section 3(38) of General clauses Act reads as under:
3(38) “offence” shall mean any act or omission made punishable by any law for the time being in force;
Unless there is law forbidding the doing or omission to do something, no question of punishment comes (Shiv bahadur Singh Rao v. State of UP AIR 1953 SC 394).
Where law for irrigation provides for levy of a special rate for unauthorized use with retrospective effect, Article 20 (1) is not attracted because there was no law prohibiting the use of water and no punishment for an offence. (Jwala Ram v State of Pepsu AIR 1962 SC 1246)
Where the previous prosecution was null and void- eg. For absence of proper sanction (Collector of Customs v Calcutta Motor and Cycle Company Air 1958 Cal. 682 : 1958 Cri LJ 1469) or for want of jurisdiction of Court (Baijnath Prasad Tripathi v State of Bhopal, 1957 SCr 650: Air 1957 Sc 494) , a fresh trial upon the same facts would not be barred, even though the accused might have served out a part of his sentence before he could obtain his acquittal on appeal, on the ground of want of sanction or jurisdiction (Dattu Pant v Advya Chari Air 1956 Hyd. 127).
Where there was no punishment in the previous proceedings owing to dismissal for default of the complainant, a fresh prosecution would not be barred (Ram Ghei v Ram Kishan AIR 1962 All. 642 : AIR 1952 All 642). Where a conviction is set aside and a retrial ordered, the retrial is a continuation of the same proceedings and not a second prosecution (Mithailal v State AIR 1954 all. 689)
In Rattan Lal v Punjab (1964 ) 7 SCR 676, (’65) A.SC. 444 it has been held as under:
“Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective..But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition of Article 20.”
In Article 20(1) the law, inter alia, embodies a time tested doctrine which reads: Nova constitutio futuris formam imponere debet, non praeteritis (a new law ought to be prospective in its operation and not retro-active ). Thus a law enacted, at a later point of time, from the date of initiating the process in respect of an offence cannot lead to imposition of higher penal consequences on the person already facing prosecution or punishment. This doctrine respects law as prevailing on the date of commission of offence.
The Article will apply only in the event of conviction or sentence under an ex post facto law and not on the basis of trial.
The prohibition is only against judicial punishment with retrospective effect. It does not prohibit enforcement of any other sanction by a civil or revenue authority. (State of WB v S K ghose AIR 1963 SC 255 )
It also does not prohibit cancellation of naturalization certificate by reason of act committed prior to the operation of penal law in question or the imposition of some statutory penalty or to enforce civil liability. Shiv Dutt Rai Fateh Chand v UOI AIR 1984 SC 1194 )
‘Law in force’ is defined in section 24 of General clauses Act.
The enlargement of the definition of sexual intercourse was found to be inapplicable to the cases where offence was committed prior to amended law.( Sakshi v UOI SCC(5) 518 )
The proceedings before statutory authorities and penalties imposed would not fall under the term punishment, which means only a judicial penalty awarded by criminal court.
Thus the following are not covered by this Article;
Disciplinary action in case of public servants (Rama Pc v SSP AIR 1967 Mys 220)
Action against lawyer under legal practitioners Act (AIR 1952 Mad 725) or under Bar Councils Act
(Joginder Singh v Bar Council AIR 1975 Del 192)
Penalty for jail offences under disciplinary rules of jail ( Maqbool Hussain v St of Bombay AIR 1953 SC 325)
Penalty for jail offences under Prison Act (Pritish Dey v The state AIR 1952 Cal 319)
Penalties under 167 (8) of Sea Customs act [(Thomas Dana v State Of Punjab AIR 1959SC 375), or under 23 (1) (a) of FERA 1947 (Director of Enforcement v MCTM (1996) 2 SCC 471]
Penalties prescribed by rules of legislature for breach of privilege (Raj Narain Singh v Atmaram Govind AIR 1954 All 319)
Binding down for good behaviour under section 110 or taking security under section 107 of Cr PC
(Aumugham P v State of madras Air 1953 Mad 664)
In case of preventive detention (Gulam ahmad ashai v State of J and K AIR 1954 J&K 59)
Article 20(2) which is described as principle of autrefois acquit or autrefois convict. This is also called a law against double jeopardy. Whether the principle enshrined in article 20 is also describable as issue estoppel or cause of action estoppel needs to be understood in a legal perspective. There are distinctions between the doctrine enshrined in article 20 and doctrines described as issue estoppel and cause of action estoppel.
The principle of issue estoppel has its origin in Blai v curran (1939) 62 CLR 464. Australian High court stated this principle in the following words;
“a judicial determination directly involving an issue of fact or of law disposes once for all the issue, so that it cannot be raised between the same parties or their privies. The estoppel covers only the those matters which the prior judgement, decree or order necessarily established as the legal foundation or justification of its conclusions that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between ‘res judicata’ and ‘issue estoppel’ is that in the first(‘res judicata’) the very right or cause of action claimed or put in suit has in the former proceedings passed into judgement, so that it is merged and has no longer an independent existence, while in the second (‘issue estoppel’) for the purpose of some other claim or cause of action, a state of factor law is alleged or denied the existence of which is a matter necessarily decided by the prior judgement, decree or order.”
In Ravinder Singh v Sukhbir Singh, (2013)9SCC245 , the distinction between double jeopardy and issue estoppel is clarified BY HON’BLE Bench of Supreme Court . The following observation is relevant;
Para 18 The principle of issue estoppel is also known as cause of action estoppel and the same is different from the principle of double jeopardy or autre fois acquit as embodied in section 403 Cr.PC. The principle applies where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused. Such a finding would then constitute an estoppel, or res judicata against the prosecution but would not operate as a bar to the trial and conviction of the accused, for a different or distinct offence. It would only preclude the reception of evidence that will disturb that finding of fact already decided when the accused is tried subsequently even for a different offence, which might be permitted by section 403(2) of Cr.PC. Thus the rule of issue estoppel prevents re-litigation of an issue which has been determined in a criminal trial between the parties. If with respect to an offence arising out of a transaction, a trial has taken place and the accuse has been acquitted, another trial with respect to the offence alleged to arise out of the transaction, which requires the court to arrive at the conclusion inconsistent with the conclusion reached in earlier trial is prohibited by rule of issue estoppel. In order to invoke the rule of issue estoppel, not only the parties in two trials should be the same but also the fact in issue, proved or not, as present in the earlier trial must be identical to what is sought to be re-agitated in subsequent trial. If the cause of action was determined to exist, i.e. judgement was given on it, the same is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatum .
However, in another case : Hope plantations v Taluk Land Board –Civil appeal 540 of 1986 , Hon’ble Supreme court distinguished ‘issue estoppel’ from ‘cause of action estoppel’ as under ;
“….cause of action estoppel arises where cause of action in the later proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgement……issue estoppel arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in the subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to seeks to reopen that issue. Here also the bar is complete to re-litigation but its operation can be thwarted under certain circumstances….”
Article 20(3) embodies the jurisprudential rule recognized as Nemo Tenetur principle. The legal maxim reads: nemo tenetur selpsum accusare ( no one need to accuse himself) . This principle was also adopted by Fifth Amendment of US Constitution. The practice of self incrimination by accused was followed and persisted in inquisitorial system (where the judge remains involved in throughout the process and actually steers collation and preparation of evidence) of France and Ecclesiastical Courts of England. In the adversarial system of trial, envisaging role of the court as impartial, between prosecution and defence, the principle of Nemo Tenetur gained paramount relevance and constitutional sanctity.
Hon’ble Bench of Supreme Court in Dilbag Singh Vs. State of Punjab, 1979 (2) SCC 103, para 6, reproduced hereunder, eloquently spoke about need for the wider and deeper ‘Judicial Visibility’ of the dark spots in the domain of penology:
Our prisons are overcrowded, our prisoners are subjected to iatrogenic incarceration, our penal drills are self-defeatingly callous to correctional measures and our jail budgets bulge without countervailing community benefits because the Bench and the Bar have dismissed as below judicial visibility such patterns as probation, conditional release. The time has come for Courts to abandon the Monroe Doctrine towards penology and concern itself with innovative sentences.
Article 20 of Constitution of India is beacon light for guiding the course of criminal law and penology.