Article 20 of the Indian Constitution provides the following safeguards to the persons accused of crimes : (a) Ex pvstfacta law

: Clause (I) of Article 20. (b) Double jeopardy 1 Clause (2) of Article 20. (c) Prohibition against selfincrimination 1 Clause (3) of Article 20. A. Protection against Ex post facto law. CIause (I) of Article 20 of the Indian Co nstitution says that "no person shall be convicted of any offence except for vio lation 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 i nflicted under the law in force at the time of the commission of the offence. Article 20 (I) imposes a limitation on the law-making power of the Legislature. Ordinarily, a Legislature can make prospective as well as retrospective laws, bu t clause (I) of Article 20 prohibits the Legislature to make retrospective crimi nal laws. However, it does not prohibit imposition of civil liability retrospect ively, Le., with effect from a past date} So, a tax can be imposed retrospectively? An ex post facto law is a l aw which imposes penalties retrospectively, ice., on acts already done and incre ases the penalty for such actsr The American Constitution also contains a similar provision prohibiting ex port facto laws both by the Central and the State Legislatures. The first part of clause (I) provides that "no person shall be convicted of any offence except for violation of law in force' at the time of the commission of th e act charged as an offence? This means that if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its com mission} In Pareed Lub/ta v. Nilarttbammfl it was held that if the non-payment of the Panchayat Tax was not an offence on the day it fell due, the defaulter could not be convicted for the omission to pay under a law passed subsequently even if it covered olde r dues. The protection afforded by clause (I) is available only against convicti on or sentence for a criminal offence under ex postfacm law and not against the trial. Under the American law the prohibition applies even in respect of trial. The guarantee in American Cons titution is thus wider than that under the Indian Constitution. The protection of clause (1) of Article 20 cannot be claimed in case of preventive detention,5 or demanding security from a person." The prohibition is just for conviction and sentence onl y and not for prosecution and trial under a retrospective law. So, a trial under a procedure different from what it was at the time of the commission of the offence or by a special court constituted a fter the commission of the offence cannot ipsofkzcta be held unconstitutional.7 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 offen ce} In Kedar Nath v. State of West Bengrtl,8 the accused committed an offence in 1947, which under the Act then in force was punishable by imprisonment or fine or both. The Act was amended in 1949 which enhanced the punishment for the same offence by an additional fine equivalent to the amount of money procured by the accused through the offence. The Supreme Court held that the enhanced punishment could not be applicable to the act committed by the accused in 1947 and hence set aside the additional fine imposed by the amended Act. But the accused can take advantage of the beneficial provisions of the ex portfa ctn law. The rule of beneficial construction requires that ex posrfacra law shou ld be applied to mitigate the rigorous (reducing the sentence) of the previous l

aw on the same subject. Such a law is not affected by Article 20(1). The princip le is based both on sound reason and common sense. In T Barul v. Henry An H0e,9 a complaint was lodged against th e respondent under Section 16(1)(a) on August 16, 1975 for having committed an o ffence punishable under Section 16(1)(a) read with Section 7 of the Prevention o f Food Adulteration Act as amended by the Amending Act of 1973. On the date of t he commission of the alleged offence, i.e. on August 16, 1975, the law in force in the State of West Bengal was the Amendment Act which provided that such an of fence would be punishable with imprisonment for life. On April 1, 1976 enacted P revention of Food Adulteration (Amendment) Act, 1976 which reduced the maximum p unishment of life imprisonment as provided by the West Bengal Amendment Act to 3 years imprisonment. It was held that the accused could take advantage of the beneficial provision of the Central Amendment Act and thus he had the benefit of the reduced punishment . In Ratanlal v. State of Pttnjab,l a boy of 16 years was convicted for committin g an offence of house- trespass and outraging the modesty of a girl aged 7 years . The Magistrate sentenced him for 6 months rigorous imprisonment and also impose d fine. After the judgment of Magistrate. the Probation of Offenders Act, 1958, came into force. It provided that a person below 21 years of age should not ordi narily be sentenced to imprisonment. The Supreme Court by a majority of 2 to 1 held that the rule of beneficial interpret ation required that ex portfacta law could be applied to reduce the punishment. So an ex past facto law which is beneficial to the accused is not prohibited by clause (1) of Article 20. B. Protection against Double ]eopardy C1ause (2). Artic1e 20(2) of our Constitution says that "no person shall be prosecuted and punished for the same offence more than once". This clause embodies the common law rule of nemo rlebez vis vemri w hich means that no man should be put twice in peril for the same offence. If he is

prosecuted again for the same offence for which he has already been prosecuted h e can take complete defence of his former acquittal or conviction. The American Constitution incorporates the same rule in the Fifth Amendment that "no person shall be twice put in jeopardy of life or limb . The protection under c lause (2) of Article 20 is narrower than that given in American and British laws . Under the American and the British Constitution the protection against double jeopardy is given for the second prosecution for the same offence irrespective o f whether an accused was acquitted or convicted in the first trial. But under Ar ticle 20(2) the protection against double punishment is given only when the accu sed has not only been pr0secuted but also `punis/ted` . and is sought to be prosec uted second time for the same offence. The use of the word prosecution thus limits the scope of the protection under clause (1) of Article 20. lf there is no puni shment for the offence as a result of the prosecution clause (2) of Article 20 h as no application and an appeal against acquittal, if provided by the procedure is in substance a continuance of the prosecution. The word prosecution as used with the word punishment' embodies the following essentials for the application of do uble jeopardy rule. They are 1(l) The person must be accused of an offence`. The word offence as defined in General Clauses Act means any act or omission made punis hable by law for the time being in force (2) The proceeding or the prosecution m ust have taken place before a "court" or "judicial tribunal". (3) The person mus t have been prosecuted and punished in the previous proceeding. (4) The offence must be the same for which he was prosecuted and punis hed in the previous proceedings. In Maqbaal Husain v, State af B0mbay,l2 the appellant brought some gold into Ind

ia. He did not declare that he had brought gold with him to the customs authorit ies on the airport. The customs authorities confiscated the gold under the Sea C ustoms Act. He was later on charged for having committed an offence under the Fo reign Exchange Regulations Act. The appeliant contended that second prosecution was in violation of Article 20(2) as it was for the same offence, i.e., for impo rting gold in contravention of Government notification for which he had already been prosecuted and punished as his gold had been confiscated by the customs authorities. The Court held that the Se a Custom Authorities were not a court or judicial tribunal and the adjudging of confiscation under the Sea Customs Act did not constitute a judgment of judicial character necessary to take the plea of the double jeopardy. Hence the prosecut ion under the Foreign Exchange Regulation Act is not barred. Similarly, proceedings before departmental and administrative authorities cannot be a proceeding of judicial nature. In Venkataraman v. Union 0flndia,l3 the appellant was dismissed from service as a result of an inquiry under the Public Service Enquiry Act, 1960, after the pro ceedings were held before the Enquiry Commissioner. Later on, he was prosecuted for having committed the offence under Indian Penal Code and the Prevention of C orruption Act. The Court held that the proceedings taken against the appellant b efore the Enquiry Commissioner did not amount to a prosecution for an offence. T he enquiry held by the Commissioner was in the nature of fact finding to advise the Government for disciplinary action against the appellant. It cannot be said that the person has been prosecu ted. Hence, the second prosecution of the appellant was held not to attract the application of the double jeopardy protection guaranteed by Article 20(2). Article 20(2) will have no application where punishment is not for the same offe nce. Thus if the offences are distinct the rule of double jeopardy will not appl y. Thus, where a person was prosecuted and punished under Sea Customs Act; and w as later on prosecuted under the Indian Penal Code for criminal conspiracy, it w as held that second prosecution was not barred since it was not for the same offence}4 Likewise, cla use (2) of Article 20 does not apply where the person is prosecuted and punished for the second time and subsequent proceeding is mere continuation of the previous proceeding, eg., in the case of an appeal against acquittal}5 Thus wher e a number of persons were punished for smuggling currency notes, arms and ammun ition, and were later on prosecuted for criminal conspiracy for carrying out the ir trade, it was held that the second prosecution was not forbidden although it related to the same offence, i.e., smuggling currency notes, etc. for which they had already been prosecuted and punished.l In A.A. Mulla v. State 0fMa/uzrashtru,l7 the appellants were charged under Secti on 409, I.P.C. and Section 5 of the Prevention of Corruption Act for making fals e panchnama disclosing of recovery of 90 gold biscuits although according to pro secution case the appellant had recovered 99 gold biscuits. They were tried for retaining 9 gold biscuits before the Special Judge but appellants were acquitted. On the ground t hat the prosecution had failed to prove misappropriation the appellants were aga in tried under the Customs Act and the Foreign Exchange Regulation Act (PERA). T he appellants challenged the validity of their second trial on the ground that i t was violative of Art. 20(2) of the Constitution. It was held that the second trial was not barred as n ot only the ingredients of the offence of two trial were different but the factu al situation of offences in the first and the second trial were also different. In Jitendm Panchal v. Intelligence Ojficer N.C.B.,l8 the offence for which the a ccused was tried aud convicted in a foreign country, USA was in respect of a cha rge of conspiracy to possess a controlled substance (Hashish) with the intention of distributing the same punishable under USA law. The offence for which he was being tried in India was relating to the importation of the contraband article from foreign country.

Nepal into India and exporting the same for sale in the USA punishable under Sec tions 3 and 4 of the Penal Code read with Section 3 (38) of the General Clauses Act. The offences for which the appellant was uied and convicted in the USA and for which he is now being tried in India are destinct and separate and do not, t herefore, attract the provisions of Article 20 (2) of the Constitution, C. Prohibition against self-incrimination-Clause (3). Clause (3) of Article 20 provides that no person accused of any offence shall be compelled to be a witness against himself. Thus Article 20(3) embodies the general principles of English and American jurisprudence that no one shall be compelled to give testimony whic h may expose him to prosecution for crime. The cardinal principle of criminal la w which is really the bed rock of English jurisprudence is that an accused must be presumed to be innocent till the contrary is proved. lt is the duty of the pr osecution to prove the offence. The accused need not make any admission or statement against his own free will. The Fifth Amendment of the American Constitution declares that "no person shall be compelled in any criminal case to be a witness against himself? The fundamental rule of criminal jurisprudence against self-incrimination has be en raised to a rule of constitutional law in Article 20(3). This guarantee exten ds to any person accused of an offence and prohibits all kinds of compulsions to make him a witness against himself. Explaining the scope of mis clause in M.P. Sharma v.Satish Chandra," the Supreme Court observed that this right embodies th e following essentials : (l) It is a right pertaining to a person who is "accused of an offence." (2) It is a protection against "compulsion to be a witness". (3) lt is a protection against such compulsion relating to his giving evidence "against himself." (1) 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. A person is said to be an accused person against whom a formal accusation relating to the commission of an offence has been levelled which in normal course may result in his prosec ution and conviction.2 It is not necessary that the actual trial or inquiry shoul d have started before the Court. Thus in M.P. Sharma v. Satish Chandra? it was h eld that a person, whose name was mentioned as an accused in the first informati on report by the police and investigation was ordered by the Magistrate, could c laim the protection of this guarantee.The mere fact that at the relevant time th e person was arrested on suspicion of having committed an offence under Section 124 of the Bombay Police Act and a panehanuma had been prepared seizing the goods were immaterial when neither the case was registered nor the F.I.R. was recorded by the police. Thus where a cust om officer arrests a person and informs him of the grounds of his arrest for the purpose of holding an inquiry into the violation of the provisions of the Sea C ustoms Act there is no formal accusation of an offence.22 ln Delhi Judicial Serv ice Association v. State 0f Gujarai,23 it has been held that mere issue of notic e or pendency of contempt proceedings do not attract Article 20(3) as the contem ners were not "accused of any offence". A criminal contempt is different from an ordinary offence. Since the contempt proc eedings are not in the nature of criminal proceedings for an offence, the penden cy of contempt proceedings cannot be regarded as criminal proceedings merely bec ause it may end in imposing punishment on the contemner. A contemner is not in t he position of an accused. Even if the contemner is found to be guilty of contempt, the court, may accept apology and discharge the notice of contempt, whereas tendering of apolo gy is no defence to the trial of a criminal offence. This shows that the guarantee in our Constitution is narrower than that in the A merican Constitution. In America the protection of self-incrimination is not con

fined to the accused only. It is also available to a witness.2" The position is the same in English law. But the protection under clause (3) of Article 20 is on ly available to the accused. (2) To be a witness.- The protection is against compulsion "to be a witness." In M .P. Sharma v. Satish Chandra,25 the Supreme Court interpreted the expression "to be a witness"`very widely sr as to include oral, documentary and testimonial ev idence. The prosecution under Article 20(3) covers not merely testimonial compul sion in a courtroom but also compelled testimony previously obtained-any compulsory process for production of evidentiary document which are reasonably likely to support the p rosecution against him. The Court accepted the definition given in the Indian Ev idence Act that a person can be a witness not merely by giving oral evidence but a lso by producing documents or making intelligible gestures as in the case of a dumb witness or th e like. If this interpretation of the phrase "to be a witness" adopted by the Co urt in M.P. Sharma scase was to be followed; the compulsory taking of finger impr essions or specimen handwriting of an accused would come within the mischief of Article 20(3). This broad interpretation, it was thought. would certainly hamper the effective administrat ion of crime and efficient administration of criminal justice. In Suite 0fB0mbz1 y v. Kathi Kalu,26 the Supreme Court held that the interpretation of the phrase "to be witness" given in SIZKIVUILIIS case was too broad and requi red a qualification. To be a witness" is not equivalent to "furnishing evidence", that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a tri al to determine the guilt or innocence of the accused. Self-incrimination can only mean conveying information based upon personal knowledge of the person giving information and cannot inclu de merely the mechanical process of producing documents in court which may throw light on any point in controversy, but which do not contain any statement of th e accused based on his personal knowledge. Thus when a person gives his finger impression or specimen w riting or signature, though, it may amount to furnishing evidence in the large s ense is not included within the expression "to be a witness". In these cases, he is not giving any personal testimony. They are merely materials for comparison. Hence, neither seizures made under search-warrant,27 nor the compulsory taking of photographs, finger-pr int or specimen writing of an accused would come within the prohibition of Artic le 20(2).28 What is forbidden under Article 20(3) is to compel a person to say s omething from his personal knowledge relating to the charge against him. It has been held that the information given by an accused person after his arrest to a police officer which leads to the discovery of a fact under Section 27 of the Ev idence Act is admissible in evidence under Article 20(3) of the Constitution. In Parshadi v. U.P.State}9 an accused who was charged with committing of a murder stated to the police that he would give clothes of the deceased which he had pla ced in a pit and thereafter he dug out the pit in presence of witnesses and took out the clothes which were identified as the clothes belonging to the deceased. The Supreme Court held that the statement of the appellant was admissible in ev idence. (3) Compulsion to give evidence against himself . The protection under Article 20(3) is available only against the compulsion of accused to give evidence "against h imself". But left to himself he may voluntarily wave his privilege by entering i nto the witness-box or by giving evidence voluntarily on request. Request implie s no compulsion; therefore, evidence given on request is admissible against the perso n giving it.3 To attract the protection of Article 20(3) it must be shown that the accused was

compelled to make the statement likely to be incriminative of himself. Compulsio n means duress which includes threatening, beating or imprisoning of the wife, par ent or child of a person. Thus where the accused makes a confession without any inducem ent, threat or promise Article 20(3) does not apply. ln /\/anduzi Satpaz/ry v. P.L. Dani,3l the Supreme Court has considerably widene d the scope of clause (3) of Article 20. The Court has held that the prohibitive scope of Article 20(3) goes back to the stage of police interrogation not comme ncing in court only. It extends to, and protects the accused in regard to other offences pending or imminent which may deter him from voluntary disclosure. The phra se compelled testimony must be read as evidence procured not merely by physical th reats or violence but by psychic (mental) torture, atmospheric pressure, environ mental coercion, tiring _ interrogatives, proximity, overbearing and intimidator y methods and the like. Thus, compelled testimony is not limited to physical tor ture or coercion, but extends also to techniques of psychological interrogation which cause mental torture in a person subject to such interrogation. In that ca se, the appellant was a former Chief Minister of Orissa. Certain charges of corr uption were levelled against her and in the course of inquiry she was called upo n to attend at a police station and to answer certain written questions. The app ellant refused to answer questions and claimed the protection of Article 20(3). She was prosecuted under Section 179, I.P.C., for refusing to answer questions p ut by a lawful authority. According to the Court, selfincrimination is less than "relevant" and more than confessional . Irrelevance is impermissible relevance is l icit, but when relevant questions are loaded with guilty inference in the event of an answer being supplied, the tendency to incriminate springs into existence. The accused person cannot be forced to answer questions merely because the answ ers thereto are not implicative when viewed in isolation and confined to that pa rticular case. He is entitled to keep his mouth shut if the answer has a reasona ble prospect of exposing him to guilt in some other accusation, actual or immine nt, even if the investigation is not with reference to that. However, he is boun d to answer where there is no clear tendency to criminate. This means that the p rotection is available when police examines the accused during investigation und er Section lol of the Cr.P.C. Further, the right to silence is not limited to th e case for which he is examined but extends to the accused in regard to other of fences pending or imminent which may deter him form voluntary disclosure of crim inatory matter. In Mohd Dasrgir v. State of Mndms,32 the appellant went to the bungalow of Deput y Superintendent of Police to offer him bribe in a closed envelope. The police o fficer on opening it found the envelope containing currency notes. He threw it a t the face of the appellant who took it. Thereafter, the police officer asked th e appellant to handover the envelope containing the currency notes. The appellan t took out some currency notes from his pocket and placed it on the table which was seized by the police officer. The appellant contended in appeal before the Supreme Court that the currency notes s hould not be produced in evidence as he was compelled by the police officer to give to him . The Supreme Court held that the accused was not compelled to produce the notes as no duress was applied on him to produce the notes. Moreover, the appellant was not an accused at the time the currency notes were seized from him. In Ytrruftrli v. State of Maliaras/rtra,33 a tape-recorded statement made by the accused though m ade without knowledge of the accused but without force or oppression was held to be admissible in evidence. In V.S. Kutzan Pillai v. Ram KIAlS/IHUII,34 the Court held that search of the pr emises occupied or in possession of person accused of an offence or seizure of a nything from there was not violative of Article 20(3) of the Constitution. If an

y document is recovered as a result of search and seizure it can be produced in the courts as an evidence against the accused as he is not compelled to give wit ness against himself. ln Anirlt Singh v. State of PimjaI135 it has been held tha t asking an accused of his hair for purpose of identification amount to testimon ial compulsion. The accused has right to refuse to give specimen of his hair for purpose of identification. He cannot be made witness against himself in view of Art. 20 (3) of the Constitution. ln State v. M. Krishna Mwrarr,36 the Supreme Court has held that taking of Speci men finger print and handwriting from accused is not prohibited by Article 20 (3 ) as being witness against himself} Narcoanalysis, Polygraphy and Brain Finger Pr inting tests of accused Violates Article 20 (3).- In a significant judgment in Selv i v. State of Karnamkmsl the accused have challenged the validity of certain sci entific techniques namely. Narcoanalysis, Polygraphy and Brain Finger Printing ( BEAP) tests without their consent as violative of Article 20 (3) of the Constitu tion, they argued that these scientific techniques are softer alternatives to th e regrettable use of third degree methods by investigators and violates right ag ainst self incrimination in Article 20 (3) of the Constitution. The State argued that it is desirable that crime should be efficiently investigated particularly sex crimes as ordinary methods are not helpful in these cases. So the issue was between `efficient investigation and preservation of individual liberty`. A three judge bench of the Supreme Court unanimously held that these tests are testimon ial compulsions and are prohibited by Article 20 (3) of the Constitution. These tests do not fall within the scope of expression "such other tests" in Explanati on of Section 53 Criminal Procedure Code. The protection of self incrimination i s available at the stage of investigation also and it is also available to witne sses. In Narcoarralysis test a drug is given to him so that he can divulge impor tant information. The drug is known as Sodicum Pentothal used or introduced as gen eral anesthesia in surgical operations. The Polygraphy and Brain Finger Printing (BEAP) test is also known as the Wave Test. Electric waves are introduced into the mind. It was held that compulsary administration of the narcoanalysis techni ques constitutes cruel, inhuman or degrading treatment in the context. Article 2 1 of the Constitution disapproves of involuntary testimony irrespective of the n ature and degree of coercion, threats fraud or inducement used to elicit the evi dence. The popular means of the terms such as torture and cruel' inhuman or degra ding treatment are associated with gory images of blood letting and broken bones . A forcible invasion into a person s mental process is also an affront to human d ignity and liberty often with grave and long and lasting consequences. The Court also referred the

International conventions though not ratified by Parliament, as persuasive value since they represent an envolving international consensus on the issue. Conventi0 n Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984)- Regarding the contention raised by the respondents that compelling inter ests demands such techniques for investigation of crimes in future the Court sai d that it was the function of the legislature to consider and make proper law on the issue. But if such matter comes before the Court the Court shall interpret the mandate of the constitutional provisions available to the citizens and apply in his favour. The Court laid down the following guidelines for these tests 1 l. No Lie Detector Tests should not be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test. 2. If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and physical, emotional and legal implications of such a test should be explained to him by the police and his lawyer. 3. The consent should be recorded by a Judicial Magistrate. 4. During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.

5. At the hearing the person in question should also be told in clear terms that the statement that if made shall not be a confidential statement to the Magistrate but will have the statement made to the police. 6. The Magistrate shall consider all factors relating to the detention including the lenth of detention and the nature of the interrogation. 7. The actual recording of the Lie Detector shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. 8. A full medical and factual narration of the manner of the information receive d must be taken on record.