Article 20: Protection in Respect of Conviction

Three elements have to be satisfied, and a good answer separates them.

The person must be accused of an offence. A formal accusation is required, so the protection attaches at the point of accusation rather than to any person giving information.

There must be compulsion. A voluntary statement is outside the clause.

And the compelled thing must amount to being a witness against himself, which has been read as the giving of testimonial or personal knowledge based evidence.

The consequence is the settled distinction that a candidate must know: compelling an accused to give specimen handwriting, signatures, fingerprints, or samples for identification is not compelling them to be a witness against themselves, because those are not testimonial. Compelling a statement conveying personal knowledge is.

The clause protects at trial and at the investigative stage.

Why article 20 matters for this paper

It is the criminal fair trial guarantee, and Module III is about enforcement, most of which happens through criminal process.

It is available to every person, so a foreigner holds it in full, which is a point [Rights of Persons and Rights of Citizens] relies on.

And it is non-suspendable. Article 359 permits the President to suspend the enforcement of Part III rights during an emergency; the Forty-fourth Amendment excluded articles 20 and 21 from that power. That change was a direct response to the Emergency of 1975 to 1977, and it is the single most important constitutional consequence of that period for this paper.

The international correspondence

Article 11(2) of the Universal Declaration: no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed, nor shall a heavier penalty be imposed than the one applicable at the time.

Article 15 of the Civil and Political Covenant is to the same effect, and it is a non-derogable article under article 4(2) of that Covenant, which matches the Indian position after the Forty-fourth Amendment.

Article 14(3)(g) of the Covenant guarantees the right not to be compelled to testify against oneself or to confess guilt, and article 14(7) contains the double jeopardy rule in a wider form than article 20(2), covering a person finally convicted or acquitted.

So the Covenant's double jeopardy protection is wider than India's, and that is a fair point to make in an answer about how far Indian law meets international standards.

Worked example

A question on the rights of the accused, or on the fair trial guarantees in the Constitution.

Give the three clauses in order, quoting the operative words.

On clause (1), separate offence from penalty, and give the three limits.

On clause (2), make the point about the word and: prosecution alone is not enough, so the Indian clause is narrower than the common law plea and narrower than article 14(7) of the Covenant.

On clause (3), give the three elements and the testimonial distinction.

Close on non-suspendability under article 359 after the Forty-fourth Amendment, and on the correspondence with article 15 of the Covenant, which is likewise non-derogable.

What it does NOT mean

It does not mean no law can be retrospective. Only criminal conviction and penalty are protected.

It does not mean a person cannot be tried twice after an acquittal. Article 20(2) requires prosecution and punishment; the acquittal protection comes from ordinary criminal procedure.

And it does not mean an accused cannot be required to give fingerprints or handwriting. Those are not testimonial, so article 20(3) does not reach them.

Quick revision

• 20(1): no conviction except for violation of a law in force at the time, and no penalty greater than that available then. Protects conviction and penalty, not procedure; civil retrospectivity is outside it; a lighter later penalty may be claimed.
• 20(2): no person shall be prosecuted AND punished for the same offence more than once. The word AND makes it narrow: acquittal is not covered by the clause itself, the offences must be the same, and the first proceeding must have been judicial.
• 20(3): no person accused of any offence shall be compelled to be a witness against himself. Three elements: accusation, compulsion, and testimonial evidence. Handwriting, signatures, fingerprints and identification samples are outside it.
• Available to every person, including a foreigner.
• Non-suspendable: the Forty-fourth Amendment put articles 20 and 21 outside article 359.
• Correspondence: article 11(2) of the Declaration; article 15 of the Covenant, which is non-derogable under article 4(2); article 14(3)(g) on self-incrimination; and article 14(7), whose double jeopardy rule is wider than article 20(2).

Test yourself

1. What does article 20(1) protect, and what does it not reach? It contains two protections. 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, which forbids the creation of a retrospective crime. And no person shall 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, which forbids the retrospective enhancement of punishment. The two are distinct and are frequently run together in weak answers.

It does not reach three things. It does not protect against changes in procedure or in the law of evidence applied to a pending case, because the clause speaks of conviction and of penalty and not of the manner of trial. It does not touch retrospective civil liability, so a retrospective tax or a retrospective civil disability lies outside the article entirely, however burdensome. And because it is a protection rather than a rule fixing the applicable law, it does not prevent an accused from claiming the benefit of a lighter penalty introduced after the offence: the bar is on the heavier penalty only.

2. Why is the Indian double jeopardy clause narrower than the common law plea? Because of the word and. Article 20(2) provides that no person shall be prosecuted and punished for the same offence more than once, so both elements must be present before the clause is engaged. A person who was prosecuted and acquitted has not been punished, and the clause on its own terms therefore does not bar a second prosecution. The protection against being tried again after an acquittal exists in Indian law, but it comes from the general criminal procedure law, which gives effect to the pleas of autrefois acquit and autrefois convict, and not from the Constitution.

Two further narrowings apply. The offences must be the same, so where a single act constitutes two distinct offences with different ingredients, a prosecution for each is not barred. And the earlier proceeding must have been before a court or a judicial tribunal, so a departmental inquiry followed by a criminal prosecution does not engage the clause at all. The comparison worth making in an answer is with article 14(7) of the Civil and Political Covenant, which protects a person who has been finally convicted or acquitted in accordance with the law and penal procedure of the country, and is therefore wider than the Indian guarantee.

3. What are the elements of article 20(3), and where is the boundary drawn? Three elements must all be present. The person must be accused of an offence, which requires a formal accusation, so the protection attaches at that point rather than being available to anyone from whom information is sought. There must be compulsion, so a statement made voluntarily is outside the clause however damaging. And the compelled thing must amount to being a witness against oneself, which has been construed as the furnishing of testimonial evidence, meaning evidence that conveys the accused's own personal knowledge about the facts in issue.

The boundary follows from the third element. Compelling an accused to provide specimen handwriting, signatures, thumb impressions, fingerprints, or samples for the purposes of comparison and identification does not offend the clause, because those are physical characteristics rather than communications of personal knowledge and the accused is not thereby made a witness. Compelling a statement, an answer or a confession that conveys personal knowledge does offend it. The protection applies at the investigative stage as well as at trial, so it is not confined to the witness box, and it is available to every person including a foreigner. Internationally it corresponds to article 14(3)(g) of the Civil and Political Covenant, which guarantees the right not to be compelled to testify against oneself or to confess guilt.