ARTICLE 20:

Preliminary Remarks:

• Under Art. 20, the Constitution of India has taken care to safeguard the rights of persons accused of crimes
(citizens or non-citizens, including a corporation).
• This Article cannot be suspended even during an emergency by an order under Art. 359.
Art. 20 constitutes a limitation on the legislative powers of the Union and State Legislatures.

Three protections under Article 20:

1. Art. 20 (1): Ex-Post Facto Law:

a. The legislature is prohibited from making criminal laws that have retrospective effect.
b. Art. 20(1) is not applicable to a trial civil liability or preventive detention case or disciplinary
proceedings.
c. Generally, all statutes must be interpreted as prospective in operation.
d. However, retrospectively may be expressly declared by the statute or could be inferred from the
language used therein.
e. Art. 20(1) spells out the prohibition against retrospective Penal laws.
f. Legislation may prescribe a new and different procedure for the prosecution of an offense
subsequent to the commission of that offense. Art. 20(1) does not cover the last category of ex-post
facto laws.
g. What is retrospective law?
i. In Sajjan Singh v. State of Punjab AIR 1964 SC 464, it was held that S-5(3) of the Prevention of
Corruption Act, 1947 is not the retrospective application of the law. "A statute is not
retrospective because a part of the requisites for its action was drawn from a time
antecedent to its passage by the legislation.
h. Case of Repealing of the repealing act:
i. Where an act is repealed and another then repeals the repealing Act, the repeal of the
second Act revived the first ab initio, and, therefore, there can be no objection in the law to
the revival of the procedure which was in force at the time when the offence was committed.
(G P Nayyar v State (Delhi Admn.), 1979 2 SCC 593
i. Article 2(1) prohibits against:
i. Prohibition against enacting ex post facto penal law: If an act or omission was innocent
when done the legislature cannot make a law which declares such act or omission a crime.
The legislature cannot make law which provides for punishment of acts or omissions which
were committed prior to the date when the Act came into force. If bringing gold into India
was never an offence and a law is made in 1970 making import of gold into India an offence
and applying the law from 1960 onwards then such law is a retrospective criminal law not
permitted by the Constitution. • In short, a new law cannot punish an old act. An act which is
not an offence on the date of its commission (as per the actual factual law existing on that
date) cannot be made an offence on a subsequent date. Thus, a penal law which creates new
offences is always prospective (Dayal Singh v State of Rajasthan AIR 2004 SC 2608).
ii. A law cannot aggravate the crime.
iii. Prohibition against conviction
j. 'Ignorance of law is no excuse'?
Thus, something would be an offence only if that thing is made punishable by a ‘law in force’. That
also means that it is the knowledge of only those laws, which are in force, at the time at which a
person does some act, which is made punishable by the law. The ‘knowledge of the future laws’
cannot be imputed to any person. The principle that ‘ignorance of law is no excuse’ is not applicable
in such situations.
k. Soni Devrajbhai Babubhai v State of Gujarat:
Section 304-B inserted in the Indian Penal Code on November 19, 1986, creating a distinct offence of
'dowry death’ and providing a minimum sentence of seven years’ imprisonment could not be applied
 to such death caused before the insertion of the section (Soni Devrajbhai Babubhai v State of Gujarat
AIR 1991 SC 2173).
Siimilar would be the case of the offence of ‘mob lynching’ inserted in BNS in 2023.
l. When Art. 20(1) does not apply?:
i. No prohibition for change in procedural laws
ii. Benefit of reduction in punishment
iii. No application to civil laws
m. Case Laws:
i. Kedar Nath v. State of West Bengal the Supreme Court held that when an act is declared a
criminal offense by the legislature and provides penalties for it, such declaration is always
prospective and cannot be applied retrospectively as per the provisions of Article 20(1).
ii. In the case of Mohan Lal v. State of Rajasthan involving the Narcotics, Drugs, and
Psychotropic Substances Act, the court opined that Article 20 prohibits only conviction and
punishment under an ex post facto law, not the trial or prosecution itself. Furthermore, a
trial conducted under a different procedure from the one existing at the time of the offense
does not fall within the scope of this provision and cannot be deemed unconstitutional.
iii. In the case of Rattan Lal v. The State of Punjab, the Supreme Court allowed for retrospective
application of criminal laws in situations where the issue at hand concerns the reduction of
punishment for the said offense.

2. Art. 20(2): Double Jeopardy:

a. This embodies the common law (English) maxim nemo debet bis vexari- ‘no man shall be put twice in
peril for the same offense.’
b. The U.S. Constitution also contains this provision- ‘no person shall be twice put in jeopardy of life or
limb.’ This is commonly called ‘double jeopardy.’
c. The principle of double jeopardy has already been recognized in Sec. 26, General Clauses Act and
Sec. 300, Cr. PC
d. The object is to avoid harassment, which must be caused to a person for successive criminal
proceedings where only one crime has been committed by him.
e. Two aspects of Double Jeopardy
i. autrefois convict
ii. autrefois acquit.
iii. The plea of autrefois convict avers that the defendant has been previously convicted in
respect of the same offence and autrefois acquit is the plea that the accused has been
acquitted on a charge for the same offence for which he is being prosecuted.
iv. Under the U.S. law, the protection is available not only against a second punishment but
even against the second trial for the same offence, irrespective of whether the accused was
acquitted or convicted in the first trial.
f. Indian Constitutional position
i. The Constitution of India protects a person from being prosecuted and
ii. convicted more than once for the same offence. Both prosecution and punishment must co-
exist for the operation of Art. 20(2).
iii. Where a person having been prosecuted is acquitted, he can be prosecuted for the same
offence again. In other words, Art. 20(2) contains the principle of autrefois convict only and
does not
iv. include autrefois acquit.
v. It is narrower than the American and English doctrine of double jeopardy. Protection against
autrefois acquit is to be found in Sec. 300(1) of the Code of Criminal Procedure, 1973. It is a
statutory right; not a fundamental right.
g. Continuing offence: Art. 20(2) would have no application to a continuing offence viz. Pollution
activities (nuisance), continued unauthorized possession of land, violation of copyright, etc.
h. Appeal does not amount to second prosecution
 i. An 'appeal’ against an acquittal does not amount to second prosecution; it is oniy a
continuation of the original prosecution and therefore Art. 20(2) would not be attracted.
Further, there was no punishment for the offence in the earlier prosecution (Kaiawati v State
of H.P. AIR 1953 SC 131).
ii. An ‘appeal’ against the conviction also does not amount to second prosecution.
iii. Similarly, where the prosecution was a nullity or void (e.g. due to the lack of sanction of a
competent authority for the prosecution of a government servant), and the accused was
discharged, a fresh prosecution for the same offence would not be violative of Art. 20(2) (Brij
Nath v State of Bhopal AIR 1957 SC 494).
iv. An enhancement of punishment by the revising authority has been held not a second
punishment
i. Administrative and Departmental Proceedings
i. The protection afforded by Art. 20(2) is attracted only in respect of punishment inflicted by
court of law or judicial tribunal. In other words, the term “prosecution”, in the context of Art
20(2), means initiation or starting of any proceeding, criminal in nature, before a
court/judicial tribunal. Thus, if the proceedings are held under any revenue authorities, Art.
20(2) has no application.
ii. Thus, a Government servant prosecuted and convicted by a court of law can be punished
under departmental proceedings for the same offence. Also, A person who has been fined
under the Customs Act can still be prosecuted under the Foreign Exchange Regulation Act
because the customs authority is not a court (Maqbool Hussain v State of Bombay AIR 1953
SC 325).
iii. An inquiry and subsequent dismissal of a government servant is no bar to prosecution for an
offence under the Indian Penal Code and Prevention of Corruption Act. The inquiry is not
prosecution in a court and disciplinary action is not a punishment given by a court (S. A.
Venkataraman v UOI AIR 1954 SC 375)
j. Art. 20(2) do not ban proceedings before a civil court: Art. 20(2) do not ban proceedings before a civil
court for disobedience of an injunction or other civil relief given by the court along with criminal
proceedings.
k. Same offence:
i. The Constitution bars double punishment for the same offence.
ii. Conviction for one offence does not bar subsequent trial and conviction for another offence.
It does not matter that some ingredients of the two offences are common. If the same act
constitutes offences under different sections or Acts the Constitution does not bar separate
trial and punishment.
iii. Thus, where a person was prosecuted under the Indian Penal Code for conspiracy to commit
the act for which he was already convicted under the Sea Customs Act, it was held that the
second prosecution was not barred by Art. 20(2). Committing an offence and conspiracy to
commit that offence are two distinct offences (Leo Roy Frey v Superintendent, District Jail
AIR 1958 SC 119).
l. Double Jeopardy and Res Judicata/Issue Estoppel:
i. Res judicata means the thing has already been decided. The principle is embodied in Sec. 11
of the Code of Civil Procedure. Res judicata rests on the principle that where a court has
tried an issue of fact on. a former occasion the finding is final and binding on both the parties
and cannot be raised again. The principle is applicable to both Civil and Criminal trials.
ii. Since the doctrine rests on the identity of issues at the two trials, it is known as the ‘doctrine
of Issue Estoppel.’ It precludes evidence being led to prove a fact in issue regarding which
evidence has already been led and a specific finding recorded at an earlier criminal trial.
iii. Art. 20(2) bars 'double punishment’, the rule of Issue Estoppel bars 'reception of evidence’
on an issue on which the finding was in the favour of the accused at a previous trial. Art.
20(2) has no direct bearing on the question at issue: it would be attracted only if the
“offense” is the same in both prosecutions.
3. Art. 20(3): Protection against Self Incrimination:
a. This clause is based on the maxim nemo tenetur prodere accussare seipsum, which means that 'no
man is bound to accuse himself. The accused is presumed to be innocent till his guilt is proved and it
is the duty of the prosecution to establish his guilt. Thus, the accused need not make any admission
or statement against his free will.
b. Clause (3) of Art. 20 is an attempt to prevent torture of the accused by investigating agencies for the
purpose of extracting confession from him. In the 18th century in England and even in the 20fh
century in communist Russia, Nazi Germany and many other countries torture was a legal procedure.
c. The Universal Declaration of Human Rights proclaims: 'No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment’ (Art. 5).
d. Person accused of an offence
i. This immunity is available only to a person who is 'accused of an offence’ (M R Sharma v
Satish Chandra AIR 1954 SC 300)
ii. A person cannot claim the protection if at the time he made the statement, he was not an
accused but becomes an accused thereafter.
iii. Further, unlike USA and England, the protection in India is confined to 'accused’ only and not
other witnesses.
iv. A person against whom a formal accusation relating to the commission of an offence (viz.
FIR, Complaint, Criminal prosecution before the court) has been levelled is covered by Art.
20(3). However, it is not necessary that to avail the privilege contained in Art. 20(3), the
actual trial or inquiry should have commenced.
v. Where a person was arrested on suspicion of having committed an offence, eliciting
formation from him would not be protected by Art. 20(3), when neither the case is
registered nor an FIR is recorded.
e. Nandini Sathpathy v PL Dani
i. In Nandini Sathpathy v PL Dani (AIR 1978 SC 1025), during the course of the investigation,
the accused was interrogated with reference to a long list of questions given to her in
writing. She refused to answer those questions claiming the protection of Art. 20(3). It was
held that the protection contained in Art 20(3) extends back to the stage of police
investigation not commencing in court only, since such inquiry was of an accusatory nature.
ii. Further, the ban on self-accusation and the 'right to silence’ extends beyond that case and
protects the accused in regard to other offences, pending or imminent, which might deter
him or her from voluntary disclosure of incriminatory nature.
f. Right to remain silent:
i. Article 20(3) provides that no person accused of any offence shall be compelled to be a
witness against himself. The 'right to remain silent’ is an extension of the rule of civil liberty
enjoined by our Constitution. Considering the guarantee under Art. 20(3) and also
humanizing standards under Art 21, court is required to tread cautiously while construing
retracted confession. To withdraw from what has been said previously needs to be
interpreted in vein of right to remain silent as an extension of this civil liberty [Aloke Nath
Dutta v State of W B. (2007) 12 SCC 230 ]
g. Protection against criminal proceedings only
i. The protection is confined to criminal proceedings before a court of law or a judicial tribunal.
It does not extend to civil proceedings or such proceeding which are not of a criminal nature
e g. under the Customs Act or the Foreign Exchange Regulation Act. In these proceedings, a
person cannot refuse to answer on the ground that it might incriminate him.
ii. Notice or pendency of contempt proceedings does not attract Art 20(3) [Delhi Judicial
Service Asscn. v State of Gujarat (1991) 4 SCC 406J. The contempers are not accused of an
offence. Contempt proceedings are not in the nature of criminal proceedings for an offence.
Art. 2C(3) also do not apply to departmental inquiries into allegations against a government
servant, as there is no accusation of any offence within the meaning of Art. 20(3).
h. Protection against compulsion to be a witness:
i. The protection is against compulsion to be a witness. The expression covers oral evidence
and written statements (documentary and testimonial evidence) conveying the accused
 person's personal knowledge relating to the charge against him. The protection contained in
Art. 20(3) covered testimonial compulsion in the court as well as compeiied testimony
previously obtained (viz. production of evidentiary documents) (M.P Sharrna v Satish
Chandra AIR 1954 SC 300)
i. Obtaining handwriting, fingerprint etc specimen:
State of Bombay v Kathi Kalu Oghad (AIR 1961 SC 1808), the Apex Court, however, held that
the immunity granted to the accused does not extend to compulsory production of material objects
or compulsion to give specimen writing/signature, finger impression or giving of blood specimens. In
these cases, the accused is not giving y Personal testimony. They are merely materials for
comparison, in order to lend assurance to the court that its inference based on other pieces of
evidence is reliable. The court distinguished 'to be a witness' from 'furnishing evidence’. Compulsion
for production of documents is prohibited only if the documents convey the personal knowledge of
the accused relating to the charge (‘to be a witness’) Where an accused is compelled to produce a
document in his possession, which is not based on his personal knowledge (‘furnishing evidence’),
there is no violation of Art. 20(3), because he does not become a witness by the mere fact that he
has produced it if does not amount to testimonial compulsion offending Art. 20(3).
j. Searching the premises:
i. Search of the premises of a person accused of an offence under a search warrant and seizure
of the documents are not violative of Art. 20(3). In such cases, it is not the act of the accused
but that of a police officer to which the accused is obliged to submit and is therefore, not his
testimonial act in any sense. It cannot be treated as a compelled production of a
thing/document. However, if the accused is compelled to be a party to a search, it would be
violative of Art. 20(3) (V. S. Kuttan Pillai v Ramakrishnan AIR 1980 SC 185).
ii. Likewise, tape-recording of statements made by the accused, without his knowledge, but
without force or oppression, is not violative of Art. 20(3), as there is no compulsion involved.
k. Compelled testimony:
i. The provisions of Sec. 27 of the Evidence Act, 1872 (under which a statement made by the
accused leading to the discovery of some facts is admissible in evidence) are not within the
prohibition of Art 20(3), unless the compulsion had been used in obtaining the information
from the accused person.
ii. Compulsion in this context would mean “duress” (State of Bombay v Kathi Kolu Oghad). The
Supreme Court in Nandini Sathpathy case held that “relevant replies which furnish a real and
clear link in the chain of evidence indeed to bind down the accused with the crime become
incriminatory and offend Art. 20(3) if elicited by pressure from the mouth of the accused”. It
widened the scope of compulsion and held that “compelled testimony" is evidently procured
not merely by physical threats or violence but also by psychic torture, atmospheric pressure,
environmental coercion, tiring interrogative proximity, overbearing and intimidating methods
and the like.
l. Administration of"caution"
In Sampath Kumar v E.D. Enforcement Directorate, Madras (AIR 1998 SC 16) held that the
administration of “caution” to a person summoned that not making the truthful statement was an
offense did not amount to the use of pressure within the meaning of Art. 20(3). Protection against
self-incrimination secured by Art. 20(3) is available only if the accused is compelled to give evidence
against himself. The court said that the administration of such caution was, in fact, in the interest of
the person making the statement.
m. Waiver of Privilege:
The privilege given by Art. 20(3) to the accused person may be waived by him. Thus, this
Article is not violated when he volunteers evidence against himself. Art. 20(3) would not apply to a
case where the confession was made by the accused without any inducement, threat, or promise
(Kalawati v State of H.P AIR 1983 SC 131).