Article 20

Dr. Archana Gadekar

Article 20
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

Article 20
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

Ex Post Facto Laws

Article 20(1) Law- which imposes penalties retrospectively

Article 20(1)
a. No person is to be convicted of an offence except for violating a law in force at the time of commission of the act charged as offence

Article 20(1)
Immunity- only for against punishment by courts and cannot be claimed against preventive detention protection- applies only to conviction and not to change of procedure

Article 20(1)
B. Art. 20 (1) immunizes a person from a penalty greater than what he might have incurred at the time of his committing the offence

Double Jeopardy
Art. 20 (2) Nemo debit bis vexari A man must not be put twice in peril for the same offence

Double Jeopardy
Autrefois acquit or autrefois convictdefense U.S position 5th Amendment of U.S. Constitution Nor shall any person be subject to for the same offence to be ut twice in jeopardy of life and limb.

Double Jeopardy: U.S Position

Broader Protection- two fold- against second punishment as well as peril in which a person is placed by second trial for second trial for the same offence.

Double Jeopardy: Indian Position

Only Autrefois Convict included and not autrefois acquit Art. 20 (2)- invoked- only when there has been prosecution and punishment in first instance A prosecution without punishment- does not bring a case within Art. 20 (2)

Double Jeopardy: Indian Position

A person- prosecuted and punished u/S. 161 IPC On appeal- HC quashed the trial- holding it void ab initio- as no sanction for the same had been obtained under the law Art. 20 (2)- would not bar a second trial for the same offence- as the accused has not been prosecuted and punished for that offence

Self -Incrimination
Art 20 (3) The right to silence is based on the principle nemo debet prodere ipsum, the privilege against self-incrimination.

Self -Incrimination
Privilege applies to testimonial compulsion

Article 20 (3)
1. it is a right pertaining to a person accused of an offence 2. it is a protection against compulsion to be a witness; and 3. it is a protection against such compulsion resulting in his giving evidence against himself.

Article 20 (3)
The privilege under clause (3) is confined only to an accused i.e. a person against whom a formal accusation relating to the commission of an offence has been leveled which is in the normal course may result in the prosecution.

Article 20 (3)
A person against whom a first information report has been recorded by the police and investigation has been ordered by the Magistrate can claim the benefit of the protection.

M.P.Sharmav. Satish Chandra

Not only to oral evidence but also by producing documents or making intelligible gestures as in the case of dumb witness. Gave wide import to Art. 20 (3)

State of Bombay v. Kathi Kalu Oghad

Supreme Court - 11 Judges Bench It is well established that clause (3) of Article 20 is directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in the controversy, but which do not contain any statement of the accused based on his personal knowledge.

 SC qualified propositions

Kalawati v H.P. State

held that Article 20 (3) does not apply at all to a case where the confession is made by an accused without any inducement, threat or promise.

Narco Analysis in the light of Article 20(3)

Dinesh Dalmia v State Smt. Selvi and Ors v. State by Koramangala Police Station

NANDINI SATHPATHY CASE

relevant replies which furnish a real and clear link in the chain of evidence to bind down the accused with the crime become incriminatory and offend article 20(3) if elicited by pressure from the mouth of the accused

Dinesh Dalmia v State

where the accused had not allegedly come forward with the truth, the scientific tests are resorted to by the investigation agency. Such a course does not amount to testimonial compulsion. .Only after conducting the test, if the accused divulges information which is incriminatory, then it will be hit by Article 20(3). Other information divulged during the test can help the investigation. Thus, there is no reason why we should prohibit such a test on grounds of unconstitutionality.

Selvi and Ors

The field of criminology has expanded rapidly during the last few years, and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly..

Selvi and Ors

Narco analysis for criminal interrogation is a valuable technique, which would profoundly affect both the innocent and the guilty and thereby hasten the cause of justice.

 Narco analysis- interface with the fundamental rights

Selvi and Ors

Further observed that enough protections exist to which recourse can be had by accused if and when the investigating agency seeks to introduce into evidence the information or statement obtained under Narco-analysis Test, if the same is found inculpatory or confession.

Selvi and Ors

That apart, statement or information by accused in the said test may even show their innocence or may lead to discovery of a fact or object material in the crime. If so, it is not at all hit by Article 20(3). Narco Analysis test does not violate Article 20 (3) per se.

Selvi and Ors

The Indian judiciary has finally recognized and condemned the abusive nature of narcoanalysis, brain-mapping, and polygraph tests specifically, the Supreme Courts recent decision in Smt. Selvi & Ors. v. State of Karnataka prohibited all involuntary administration of such tests, holding them to be cruel, inhuman and degrading treatment

Narcoanalysis
In questioning the scientific reliability of narcoanalysis, the Court for example stated: Some studies have shown that most of the drug-induced revelations are not related to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects personal lives.

Selvi and Ors

First, the Court found that forcing a subject to undergo narcoanalysis, brain-mapping, or polygraph tests itself amounted to the requisite compulsion, regardless of the lack of physical harm done to administer the test or the nature of the answers given during the tests.

Selvi and Ors

Secondly, the Court found that since the answers given during the administration of the test are not consciously and voluntarily given, and since an individual does not have the ability to decide whether or not to answer a given question, the results from all three tests amount to the requisite compelled testimony to violate Article 20(3).

Selvi and Ors

Even if a person voluntarily agreed to undergo any of the tests at the outset, the responses given during the tests are not voluntary.

Selvi and Ors

The Supreme Courts decision is in line with Constitutional requirements and international human rights law.