Protection in Respect of Conviction for Offences
Article 20 of the Indian Constitution provides the following safeguards to the persons accused of crimes:
- Ex post facto law: Clause (1) of Article 20
- Double Jeopardy: Clause (2) of Article 20
- Prohibition against self-incrimination: Clause (3) of Article 20
Ex-post-facto Law
An ex-post-facto law is a law which imposes penalties retrospectively, i.e., on acts already done or which increases penalties for such acts.
- Article 20(1) imposes a limitation on the law-making power of the Legislature. Ordinarily, a Legislature can make prospective as well as retrospective laws but clause (1) of Article 20 prohibits the Legislature from making retrospective criminal laws. However. It does not prohibit imposition of civil liability retrospectively, i.e., with effect from a past date. So, a tax can be imposed retrospectively.
- The protection afforded by clause (1) is available only against conviction or sentence for a criminal offence under ex-post-facto law and not against the trial, civil laws or tax laws.
- The protection (immunity) of clause (1) of Article 20 cannot be claimed in case of preventive detention, or demand of security from a person. The prohibition is just for conviction and sentence only and not for prosecution and trial under a retrospective law.
- Penalty greater than at the time of the commission of the offence: The second part of clause (1) protects a person from ‘a penalty greater than that which he might have been subjected to at the time of the commission of the offence’.
Double Jeopardy
This protection is available only in proceedings before a court of law or a judicial tribunal. This clause embodies the common law rule of nemo debet vis vexari which means that no man should be put twice in peril for the same offence.
- It is not available in proceedings before departmental or administrative authorities as they are not of judicial nature.
- The protection under clause (2) of Article 20 is narrower than that given in the American and British laws. Under the British and American Constitution, the protection against double jeopardy is given for the second prosecution for the same offence irrespective of whether an accused was acquitted or convicted in the first trial. But under Article 20(2), the protection against double punishment is given only when the accused has not only been ‘prosecuted’ but also ‘punished’ and is sought to be prosecuted second time for the same offence. The use of the word ‘prosecution’ limits the scope of the protection under clause (1) of Article 20.
- The word ‘prosecution’ as used with the word ‘punishment’ embodied the following essentials for the application of double jeopardy rule. They are:
- The person must be accused of an ‘offence’.
- The proceeding or the prosecution must have taken place before a “court” or “judicial tribunal”.
- The person must have been ‘prosecuted and punished’ in the previous proceeding.
- The ‘offence’ must be the same for which he was prosecuted and punished in the previous proceedings.
Prohibition against Self-incrimination
Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to be a witness against himself. This extends to both oral evidence and documentary evidence.
However, it does not extend to:
- Compulsory production of material objects
- Compulsion to give thumb impression, specimen signature, blood specimens and
- Compulsory exhibition of the body
It extends only to criminal proceedings and not to civil proceedings which are of criminal nature.
Accused of an offence
- The words ‘accused of an offence’ make it clear that this right is only available to a person accused of an offence. Unless a person is accused of an offence, he cannot claim protection of Article 20(3).
- In America, the protection of self-incrimination is not confined to the accused only. It is also available to a witness. The position is the same in British law. But the protection under clause (3) of Article 20 is only available to the accused. Thus, the guarantee in our Constitution is narrower than that in the American Constitution.
To be a witness
- The prosecution under Article 20(3) covers not merely testimonial compulsion in a court-room but also compelled testimony previously obtained- any compulsory process for production of evidentiary document which are reasonably likely to support the prosecution against him.
Compulsion to give evidence “against himself”
- The protection under Article 20(3) is available only against the compulsion of the accused to give evidence “against himself”. But left to himself, he may voluntarily waive his privilege by entering into the witness-box or by giving evidence voluntarily on request.
- Request is not compulsion: Request implies no compulsion; therefore, evidence given on request is admissible against the person giving it. Compulsion means duress which includes threatening, beating or imprisoning the wife, parent or child of the person. Where the accused makes a confession without any inducement, threat or promise under Article 20(3) does not apply.
Case laws
Narcoanalysis, Polygraphy and Brain Finger Printing tests of accused:
- Polygraph or Lie Detector Test: It is a procedure that measures and records several physiological indicators such as blood pressure, pulse, respiration, and skin conductivity while a person is asked and answers a series of questions.
- This test is based on the assumption that physiological responses that are triggered when a person is lying are different from what they would be otherwise.
- A numerical value is assigned to each response to conclude whether the person is telling the truth, is deceiving, or is uncertain.
- A test similar to Polygraph was first done in the 19th century by the Italian criminologist Cesare Lombroso, who used a machine to measure changes in the blood pressure of criminal suspects during interrogation.
- Narcoanalysis Test: It involves the injection of a drug, sodium pentothal, which induces a hypnotic or sedated state in which the subject’s imagination is neutralised, and they are expected to divulge information that is true.
- The drug, also referred to as truth serum, was used in larger doses as anaesthesia during surgery, and is said to have been used during World War II for intelligence operations.
- Recently, investigating agencies have sought to employ these tests in the investigation, and are sometimes seen as being a softer alternative to torture or “third degree” to extract the truth from suspects.
- Brain Mapping Test or P-300 test: In this test, the activity of the brain of a suspect is measured during interrogation to find out whether he is concealing any information.
In the Selvi vs State of Karnataka & Anr case, 2010, the Supreme Court ruled that the use of such neuroscientific investigative techniques constituted testimonial compulsion and violated an accused person’s right against self-incrimination under Article 20(3), and their right to life and personal liberty under Article 21 of the Constitution.
