Article 20: The Protections of an Accused

In one line

Article 20 gives anyone facing criminal punishment three protections: no punishment under a law made after he acted, no prosecution and punishment twice for the same offence, and no compulsion to supply the evidence that convicts him.

In the wording a student can write in an exam: article 20 contains three guarantees. Clause (1) forbids ex post facto criminal law, a law that reaches backwards in time: no conviction except for violation of a law in force when the person acted, and no penalty greater than the one then available. Clause (2) enacts the rule against double jeopardy, being put in peril twice for the same wrong; it is narrower than the common law plea, because it requires a prosecution and a punishment before a court of law or a judicial tribunal, as Maqbool Hussain v. State of Bombay held. Clause (3) forbids compelled self-incrimination; it protects a person formally accused, it operates from the police station and not merely the courtroom, and "compelled testimony" includes testimony obtained by psychological pressure, as Nandini Satpathy v. P.L. Dani held and Selvi v. State of Karnataka applied to narcoanalysis, polygraph and brain mapping. The right to move a court to enforce article 20 cannot be suspended even during an Emergency.

Why the law has this at all

The three clauses look unconnected. One idea holds them together: the State prosecuting a person has overwhelming advantages, and three of them it must not be allowed to take.

The first is hindsight: a government embarrassed by conduct it did not think to forbid can forbid it now and punish what has already happened, destroying the promise that a person can know in advance what is forbidden. The second is repetition: a State that loses, or dislikes its sentence, can prosecute again until the result suits it. The third is the accused himself, who knows most about the offence; the cheapest way to prove a case is to make him prove it, and every system that permits that ends in torture.

Article 20 removes all three, absolutely: no exceptions and no "reasonable restrictions" proviso.

The provision

Article 20 is headed Protection in respect of conviction for offences.

Clause (1): "No person shall be convicted of any offence except for violation of a 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."

Clause (2): "No person shall be prosecuted and punished for the same offence more than once."

Clause (3): "No person accused of any offence shall be compelled to be a witness against himself."