The Rights of an Accused
Chapter -Three
Syllabus topic 8, "Civil Liberties in India, UK, USA"
Pages 557 to 561 of 676
In one line
Article 20 gives three protections in three sentences, and the American Constitution gives the same three plus several the Indian text does not contain.
In the wording a student can write in an exam: article 20 protects against conviction under an ex post facto law and against a penalty greater than that in force at the time of the offence, against double jeopardy, and against compulsion to be a witness against oneself; the Fifth, Sixth and Eighth Amendments protect the same three and add the grand jury, the jury trial, confrontation, compulsory process, counsel, a speedy and public trial, and a bar on excessive bail and cruel and unusual punishments.
Article 20
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.
The protection is against retrospective criminal liability and retrospective enhancement of penalty. It does not forbid a retrospective reduction, and it applies to conviction and sentence, not to trial procedure, so a change of procedure may be applied to a pending case.
Clause (2). No person shall be prosecuted and punished for the same offence more than once.
The Indian clause is narrower than the American on its face. It requires a previous prosecution and punishment, so an acquittal is not covered by the constitutional clause; the wider protection against a second trial after acquittal comes from the statutory bar in the criminal procedure law.
Clause (3). No person accused of any offence shall be compelled to be a witness against himself.
Three requirements: the person must be accused of an offence, there must be compulsion, and the compulsion must be to be a witness against himself. It has been held to cover testimonial compulsion and not the giving of specimen handwriting, fingerprints or physical samples, and Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, extends it to the police interrogation stage.
The American set
Fifth Amendment. Grand jury indictment for a capital or otherwise infamous crime; no person to be subject for the same offence to be twice put in jeopardy of life or limb; no person to be compelled in any criminal case to be a witness against himself; no deprivation of life, liberty or property without due process of law.
Note "twice put in jeopardy": the American clause bars the second trial, not merely the second punishment, which is why an acquittal bars a retrial.
Sixth Amendment. In all criminal prosecutions, a speedy and public trial by an impartial jury of the State and district wherein the crime was committed; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour; and to have the assistance of counsel for his defence.
The Rights of an Accused
Eighth Amendment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The cases that made them real. Gideon v. Wainwright, 372 U.S. 335 (1963), required counsel for an indigent defendant in a State prosecution. Miranda v. Arizona, 384 U.S. 436 (1966), attached warnings to custodial interrogation. Mapp v. Ohio, 367 U.S. 643 (1961), applied the exclusionary rule to the States.
What India reached through article 21 instead
The Indian text has no jury clause, no confrontation clause, no compulsory process clause, no speedy trial clause and no cruel and unusual punishment clause. Most of the corresponding protections arrived through article 21 after Maneka.
Speedy trial. Hussainara Khatoon v. Home Secretary, State of Bihar (the speedy trial judgment), AIR 1979 SC 1360, held that a speedy trial is an essential ingredient of the reasonable, fair and just procedure required by article 21, on facts where undertrial prisoners had been in custody for periods longer than the maximum sentence for the offences charged.
Free legal aid. Also from Hussainara Khatoon and the cases following it, read with article 39A.
Humane conditions. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675, held that a prisoner retains fundamental rights and that solitary confinement and bar fetters are subject to article 21.
Trial by jury was abolished in India by statute and no constitutional question arises, which is a real difference from the American system rather than an omission made good.
Comparison
| India | United States | |
|---|---|---|
| Ex post facto | Article 20(1) | Article I sections 9 and 10 |
| Double jeopardy | Article 20(2), prosecution and punishment | Amendment V, twice put in jeopardy |
| Self-incrimination | Article 20(3), accused of an offence | Amendment V, in any criminal case |
| Counsel | Article 22(1); article 21 and legal aid | Amendment VI; Gideon |
| Speedy trial | Article 21, Hussainara Khatoon | Amendment VI |
| Jury | None; abolished by statute | Amendment VI |
| Confrontation and compulsory process | Statutory | Amendment VI |
| Cruel and unusual punishment | Article 21 | Amendment VIII |
| Exclusion of unlawful evidence | No general rule | Mapp |
A worked example
A statute enacted in 2026 makes an act committed in 2024 an offence and prescribes a heavier penalty for offences of that class generally.
Conviction. Article 20(1) forbids conviction for the 2024 act, since the law was not in force at the time.
Penalty. Even for an act that was already an offence, a penalty greater than that available in 2024 cannot be imposed.
The Rights of an Accused
Procedure. A change in the mode of trial made in 2026 may be applied, because clause (1) protects against conviction and penalty and not against procedural change.
United States. Article I sections 9 and 10 forbid Congress and the States respectively to pass ex post facto laws, and the doctrine covers the same ground.
The cases
Facts. Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, concerned a former Chief Minister summoned under section 161 of the Code of Criminal Procedure and prosecuted for refusing to answer questions.
Held, by the Supreme Court. Article 20(3) applies not only at trial but at the stage of police interrogation, and protects a person against whom a formal accusation has been made even if questioning occurs during investigation; the accused may have a lawyer present during interrogation; and the protection covers answers that would furnish a link in the chain of evidence, not only confessions.
Why it matters here. It is the Indian statement of the privilege at the police station, and it shows how far article 20(3) reaches without an exclusionary rule to enforce it.
Facts. Hussainara Khatoon v. Home Secretary, State of Bihar (the speedy trial judgment), AIR 1979 SC 1360, arose from newspaper reports of undertrial prisoners in Bihar detained for years awaiting trial, many for periods exceeding the maximum sentence for the offence charged.
Held, by the Supreme Court. A speedy trial is an essential ingredient of the reasonable, fair and just procedure guaranteed by article 21; the State cannot plead administrative or financial inability; and free legal services to a person unable to afford counsel are an essential ingredient of that procedure. Undertrials detained beyond the maximum period were ordered released.
Why it matters here. It is where the Sixth Amendment's speedy trial clause enters Indian law without a corresponding text.
Facts. Gideon v. Wainwright, 372 U.S. 335 (1963), concerned a defendant tried in a Florida court for a felony who asked for counsel, was refused because State law provided counsel only in capital cases, and conducted his own defence.
Held, unanimously. The Sixth Amendment's guarantee of counsel is a fundamental right essential to a fair trial and is made obligatory on the States by the Fourteenth Amendment; Betts v. Brady was overruled.
Why it matters here. It is the American counterpart of the Indian legal aid line, arrived at by incorporation rather than by reading a procedural guarantee into a liberty clause.
Distinctions
| Article 20(2) | The Fifth Amendment clause | |
|---|---|---|
| Wording | Prosecuted and punished | Twice put in jeopardy |
| Effect of an acquittal | Not covered by the constitutional clause | Bars a retrial |
| Source of the wider Indian protection | The criminal procedure statute | The Constitution itself |
| Appeal by the prosecution | Permitted | Restricted by the clause |
The Rights of an Accused
What beginners get wrong
"Article 20(2) bars a retrial after acquittal." It requires a previous prosecution and punishment; the bar after acquittal is statutory.
"Article 20(3) covers everything the police ask for." It covers testimonial compulsion of a person accused of an offence; specimen signatures, fingerprints and physical samples have been held outside it.
"Article 20(1) prevents a retrospective procedural change." It protects against conviction under a law not then in force and against an enhanced penalty; procedure is not covered.
"India abolished the jury because the Constitution required it." The Constitution says nothing about juries; the abolition was legislative.
Limits and criticism
A right without a remedy in the trial is the recurring Indian problem on this topic, since there is no general exclusionary rule.
Article 20(2) is narrower than every comparator, and the practical protection depends on a statute Parliament may amend.
Speedy trial as a constitutional right has not produced speed, and the gap between Hussainara Khatoon and the present state of pendency is the standing criticism of the whole technique.
The American set is textually generous and unevenly delivered, since counsel is guaranteed and the quality of appointed counsel is not.
Quick revision
- Article 20(1): no conviction except for violation of a law in force at the time; no greater penalty than then available.
- Article 20(2): no prosecution and punishment for the same offence more than once; acquittal is protected by statute, not by the clause.
- Article 20(3): no person accused of an offence shall be compelled to be a witness against himself; Nandini Satpathy extends it to interrogation.
- Fifth Amendment: grand jury, double jeopardy, self-incrimination, due process.
- Sixth Amendment: speedy and public trial, impartial jury, notice of the accusation, confrontation, compulsory process, counsel.
- Eighth Amendment: no excessive bail or fines, no cruel and unusual punishments.
- India reaches speedy trial, legal aid and humane conditions through article 21: Hussainara Khatoon, Sunil Batra.
Test yourself
1. Set out the three clauses of article 20 and their limits. Clause (1) forbids conviction except for violation of a law in force at the time of the act, and a penalty greater than that then available; it does not reach procedural changes. Clause (2) forbids prosecution and punishment for the same offence more than once, so it does not by its terms bar a retrial after acquittal, that protection being statutory. Clause (3) forbids compelling a person accused of an offence to be a witness against himself, which covers testimonial compulsion but not specimen handwriting, fingerprints or physical samples.
2. Compare article 20(2) with the Fifth Amendment clause. The Indian clause requires both a previous prosecution and a punishment, so the constitutional protection attaches only after conviction and sentence. The American clause forbids a person being twice put in jeopardy of life or limb for the same offence, and jeopardy attaches when the jury is sworn or the first witness is heard, so an acquittal bars a retrial and the prosecution's right of appeal is correspondingly restricted. The wider Indian protection exists, but it rests on the criminal procedure statute and could be altered by Parliament.
The Rights of an Accused
3. Which American protections has Indian law reached through article 21? A speedy trial and free legal aid, from Hussainara Khatoon v. Home Secretary, State of Bihar (the speedy trial judgment), AIR 1979 SC 1360, which held both to be essential ingredients of the reasonable, fair and just procedure article 21 requires and rejected administrative and financial inability as an answer; and humane conditions of confinement, from Sunil Batra v. Delhi Administration, AIR 1978 SC 1675, which held that a prisoner retains fundamental rights and that solitary confinement and bar fetters are subject to article 21. The jury trial has no Indian counterpart, having been abolished by statute.
4. What does Nandini Satpathy add to article 20(3)? That the protection is not confined to the courtroom. It applies at the stage of police interrogation under section 161 of the Code of Criminal Procedure, extends to a person against whom a formal accusation has been made even though questioning occurs during investigation, covers answers that would furnish a link in the chain of evidence and not merely confessions, and carries a right to have a lawyer present during interrogation. What it does not carry is an automatic exclusionary consequence, which is where Indian and American practice part.
The rest of this subject
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