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RETROSPECTIVE EFFECT, DOUBLE JEOPARDY AND RIGHT AGAINST SELF-INCRIMINATION UNDER ARTICLE 20

Article submitted by C.AMIRDHA VARSHINI, SASTRA Deemed to be University.



INTRODUCTION

The Constitution of India defines the basic legal code, organization, policies, powers and duties of government authorities and sets out basic freedoms, rules and citizens' duties. There are other important provisions like principles of the judiciary, principles of fairness, the principle of federalism, etc. There are few principles which are the outcome of judicial decisions and which are binding on the authorities of the State in accordance with the legal practices of our state. Such values, which are the outcome of judicial activism, often have an imperative nature. The major storehouse of the constitutional principles is Part III of the Constitution. Article 20 gives protection to the person accused of crimes. Our Constitution is not partial towards anyone including the convicted persons.

Article 20[1]of the Indian Constitution provides the following principles:

· Article 20(1) of the Constitution gives protection against Ex post facto law, that is, the prohibition of retrospective effect.

· Article 20(2) of the Constitution gives protection against Double Jeopardy.

· Article 20(3) of the Constitution gives protection against self-incrimination.

RETROSPECTIVE EFFECT

Article 20(1) says that no individual shall be convicted of any crime except for violations of the law in effect at the time of the execution of the offense charged, nor shall he be liable to a punishment greater than that which would have been imposed under the law in force at the time the offense was committed. Generally, Legislature has the power to enact prospective as well as retrospective law, but this provision prohibits the Legislature to make retrospective criminal laws. But it does not prohibit any civil liability retrospectively.[2] So, tax can be imposed retrospectively. Ex post facto law means a law that imposes a penalty on those acts already done retrospectively and increases penalties for that act. In GovindPillai v. PadmanabhaPillai[3], the Kerala High Court held that the law made effective from 1.7.1961 was reported in the 7.7.1961 Gazette, the provision should not be extended to actions performed before 7.7.1961. In Kedhar Nath V. State of West Bengal[4], the accused was convicted for an offence punishable for imprisonment or fine or both in 1949. Then the Act was amended in 1949. The Supreme Court held that the enhanced punishment is not applicable to the accused.

In Mohan Lal V. State of Rajasthan[5], a night chowkidar was convicted under Section 18 of NDPS Act, Sections 457 and 388 of Indian Penal Code for 10kgs and 420gms of opium on 13.11.1985. The NDPS Act came into force only on 14.11.1985 and so he contended that the offence should be punishable only under the Opium Act, 1978, but not under the NDPS Act. The High Court and Supreme Court dismissed his appeal and held that he was punishable under Section 18 of the NDPS Act. Article 20(1) was not applicable as the actus of possession was not punishable under the retrospective effect as it is a civil liability.

However, the accused can take advantage of the beneficial provisions of ex post facto law. In Ratan Lal V. State of Punjab[6], a 16-year-old boy was convicted for house trespass and outraging the modesty of a 7-year-old girl. He was sentenced for 6 months with rigorous imprisonment. Post judgement the Probation of Offenders Act was enforced which says that a person below 21 years should not ordinarily be imprisoned and the Supreme Court held that ex post facto law could be applied to reduce the punishment.

DOUBLE JEOPARDY

Article 20(2) says that no citizen shall be convicted or fined more than once for the same offence. This clause incorporates the rule of ‘nemo debet vis vexari’ which means that no man could be put twice in peril for the same offence. The term 'prosecution' as associated with the term 'punishment' encompasses the following criteria for the enforcement of a double jeopardy rule such as:

  • The person should be charged with an offence.

  • The proceedings or prosecution should have taken place before a 'court' or 'judicial tribunal.

  • The offender must have been charged and sentenced in the prior proceeding.

  • The crime must be the same with which it has been tried and sentenced in the prior trials.

In Maqbool Hussain v. State of Bombay[7], the appellant has taken a certain amount of gold to India. He did not disclose that he had brought gold with him to the customs authorities at the airport. The customs officials also seized gold under the Sea Customs Act. He was later charged for having committed an offense under the Foreign Exchange Regulations Act. The appellant argued that the second prosecution was violative of Article 20(2) because it was for the same offense, i.e. for importing gold in breach of the government notification for which it had already been prosecuted and punished. Also, the gold had been confiscated by the customs authorities. The court concluded that the Sea Customs Authorities were not a court, and the adjudication of confiscation under the Sea Customs Act did not constitute a decision of judicial character sufficient to accept the claim of double jeopardy. The action under the Foreign Exchange Regulation Act is not forbidden. And also, the proceedings held before the administrative and departmental authorities cannot become a proceeding of judicial nature.

In Leo Roy V. Superintendent District Jail[8], the court clearly explains that Article 20(2) will not have any application if the punishment is not for the same offence. In State of M.P. V. Veereshwar[9], Article 20(2) does not apply in cases of appeal against the acquittal. In Suba Singh V. Davinder Kaur[10], the accused was convicted under Section 304 of IPC but the wife of the deceased was not deprived of getting compensation. The court held that the rule of double jeopardy does not apply to the decree of damages.

SELF-INCRIMINATION

Article 20(3) says that no person who is accused of any criminal offence can be forced to be a witness against himself. In M.P. Sharma v. Satish Chandra[11], the Supreme Court embodies the essentials of 20(3), they are,

· Right to any person being accused of an offence.

· It acts as a protection against the compulsion to be a witness in a case.

· It protects against compelling a person to give evidence against himself.

In Delhi Judicial Service Association V. State of Gujarat[12], the court held that issue of notice or pendency of contempt proceedings does not in any way involve Article 20(3). The ordinary offence is different from a criminal offence. Issue of notice or pendency of proceedings does not come under the criminal proceedings by nature. In the case of State of Bombay V. Kathi Kalu[13], the court held that furnishing evidence does not amount to be a witness. Self-incrimination means conveying that information that the person already knew but not a mechanical process in which documents are produced. But in the case of Rekha Sengar V. State of U.P.[14], if a person is asked to submit his foot prints for corroboration of evidence, that is not a violation of Article 20(3). The non-compliance of the order leads to adverse inference, but this non-compliance of this order cannot be the sole basis of conviction.

Most importantly, to apply Article 20(3), the accused should be threatened, beaten or imprisoned or otherwise influenced to make the statement which is likely to incriminate himself. In the case of Nandini Sathpathy v. P.L.Dani[15], the Supreme Court widened the scope of Article 20(3). The Supreme Court confronted with a question whether to maintain the privilege of the police to interrogate under Section 179 of the Indian Penal Code or to maintain the protection against self-incrimination under Provision 20(3) of the Indian Constitution. the directives given in the case are,

· A person convicted with a crime cannot be compelled by exerting coercion or to make a confession acknowledging his or her role in the offence.

· The person charged with the offense must be informed of his / her right to stay quiet and his / her protection against compelled confession.

· The person being interrogated has the right to have a lawyer on his side if he/she desires it while the officers are investigating.

· Every person charged with a crime must be told of the right to talk to a lawyer at the moment of interrogation, even though he/she is in custody.

· Women cannot be kept in detention for questioning in violation of Section 160(1) of the Criminal Procedure Code.

· The Supreme Court has released an order calling for seven years in jail to cause injury in extracting admission.

In the case of Selvi v. State of Karnataka[16], the Supreme Court dismissed the dependency of the High Courts on the supposed usage, accuracy and legitimacy of narcoanalysis and other measures as forms of criminal investigations. Firstly, the Court decided that compelling the victim to undergo narco-analysis, brain mapping or polygraph test led to coercion, irrespective of the absence of physical damage caused to the accused during the examination. Secondly, the Court decided that, because the answers provided during the implementation of the test are not provided knowingly and willingly, and the person does not have the capacity to determine whether or not to address the question, the findings of all three tests lead to the violation of Article 20(3).

CONCLUSION

Article 20 is one of the foundations of human freedoms granted by the Indian Constitution. This deals specifically with the defense of those freedoms in the event of criminal prosecution. Where both individuals and corporations are accused of crimes, the provisions of Article 20 shall safeguard their rights. The remarkable characteristic of this Article is that it cannot be stopped during an emergency time. It should be noted that each of the clauses of Article 20 were intended to defend citizens from the excesses of the legislative, the judiciary and the executive powers. These rights are applicable both to citizens and aliens. All these features of Article 20 make it more essential for discharging the democratic values.

[1] Article 20 of the Indian Constitution, 19414.11.19859 [2] Hathi Singh Manufacturing Company V. Union of India, AIR 1960 SC 923 [3] GovindPillai v. PadmanabhaPillai, AIR 1965 Ker 123, 1965 CriLJ 446 [4] Kedhar Nath V. State of West Bengal, AIR 1953 SC 404 [5] Mohan Lal V. State of Rajasthan, AIR 2015 SC 2098. [6] Ratan Lal V. State of Punjab, AIR 1965 SC 444 [7] Maqbool Hussain v. State of Bombay, 1953 AIR 325, 1953 SCR 730 [8] Leo Roy V. Superintendent District Jail, AIR 1958 SC 119 [9] State of M.P. V. Veereshwar, (1957) SCR 868 [10] Suba Singh V. Davinder Kaur, AIR 2011 SC 3163 [11] M.P.Sharma v. Satish Chandra, AIR 1954 SC 300 [12] Delhi Judicial Service Association V. State of Gujarat, (1991) 4 SCC 406 [13] State of Bombay V. Kathi Kalu, AIR 1961 SC 1808 [14] Rekha Sengar V. State of U.P., AIR 2017 SC 2150 [15] Nandini Sathpathy v. P.L.Dani, 1978 AIR 1025, 1978 SCR (3) 608 [16] Selvi v. State of Karnataka, (2010) 7 SCC 263

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