The first part of Article 20(1) prohibits the retrospective application of criminal laws if a new offence has been created. Such laws which create new offence cannot be applied retrospectively to punish a person for an act which was done in the past. Thus, criminal laws which create a new offence cannot have retrospective application as otherwise it would have been violative of Article 21 and also it would be against the principle of reasonableness, justice, equity, good conscience and it would be an arbitrary legislation.
If a criminal legislation increases the punishment for an offence which was an existing offence, then such criminal laws also cannot be applied retrospectively as such retrospective application would be unreasonable, arbitrary, unjust and unconscionable.
What if a law reduces the punishment?
No prohibition under Article 20. It is allowed. It can be applied retrospectively if legislature allows. If legislature does not allow, court may give him minimum punishment on its discretion.
If the offence is abolished by a subsequent law or the punishment is reduced and the said subsequent law is applied retrospectively, then the accused who had committed the offence earlier, will get the benefit of that law. However, if such beneficial legislation was not applied retrospectively then the accused can certainly plead benefit of new legislation and Court after convicting him, can reduce or minimize his sentence. This is called as Doctrine of Beneficial Construction.
Article 20(2)- Double Jeopardy
The literal meaning of Jeopardy is peril or trouble but in Criminal law, jeopardy means punishment.
No person shall be prosecuted and punished for the same offence more than once. It will be an unnecessary excessive restraint upon the life and personal liberty of the accused and also it will be unreasonable, unjust, arbitrary and against good conscience.
The accused has to prove that he has been prosecuted and punished earlier for the same offence in a judicial or a quasi-judicial proceeding. If the accused was prosecuted and acquitted earlier, the prohibition of Article 20(2) of the Constitution of India will not apply.
It is essential that earlier he was prosecuted and punished in some judicial or quasi-judicial proceeding. Thus, if earlier proceeding was not judicial or quasi-judicial rather it was only departmental proceeding, then Article 20(2) will not apply.
Article 20(3) – Law against Self Incrimination
As per Article 20(3), the accused cannot be compelled to give evidence against himself. The protection is from the mental as well as physical compulsion and is available at all stages including the trial stage. It must be noted that protection is with respect to the personal knowledge. It does not extend to physically manifest things like thumb impression, my watch, blood sample etc.
M P Sharma v Satish Chandra (1954) (SC)
It is not necessary that the concerned person was an accused at the time when he was compelled rather may be at that, he was only a suspect but later on he was made an accused even in such a case, he will get the protection.
The protection is against a compulsion to give evidence against his own self and therefore if the accused voluntarily gives the information then Art 20(3) will not apply.
The protection is only with respect to the statements which can be used as evidence against the accused.
Witnesses does not get protection of Article 20(3); they get protection under section 132 of the Indian Evidence Act.
State of Bombay v Kathi Kalu Oghad (1961) (SC)
If some facts are visible and manifest, then protection of Article 20(3) will not apply.
The protection applies only with respect to the facts or the information based upon the personal knowledge of the accused.
The protection is not only with respect to the compulsion but also with respect to any kind of mental compulsion.
Nandini Satpathy v P L Dani (1978) (SC)
The prohibitive scope of Article 20(3) arises at the very stage of investigation and the protection is available at the investigation, enquiry and trial stages. Thus, the protection is available at stage of section 161 CrPC as well as at the stage of Section 313 and 315 of CrPC.
Article 20(3) gives the protection only to the accused in a case and not witness.
It was held that Section 161(2) CrPC is in consonance with Article 20(3).
First published on February 11, 2021.