16 Right to Fair Trial under the constitution of India (Part 1)

Prof. Abhishek Sudhir

Table of Contents

1. Learning Outcomes

2. Introduction

3. Article 20 of the Constitution of India 3.1 Article 20 (1): Ex Post Facto Laws

3.1 Article 20 (2): Double Jeopardy

3.2 Article 20 (3): Prohibition against Self-incrimination

4. Article 22 of the Constitution of India

5. Constitution

1. Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the constitutionally recognized components of an individual’s right to a fair trial;
• To help the students understand the manner in which the scope of the right to a fair trial has been expanded by judicial interpretation.

2. Introduction

This module will introduce the student to two Articles, namely Article 20 and Article 22 of the Constitution of India that form the very bedrock of the right to a fair trial. The module will first explore Article 20 (1) which deals with ex post facto laws, followed by Article 20 (2) which deals with the principle of double jeopardy and finally Article 20 (3) which speaks of the prohibition against self-incrimination. The module will also briefly discuss the protections against arrest and detention in certain cases, set out in Article 22.

3. Article 20 of the Constitution of India

3.1 Article 20 (1): Ex Post Facto Laws

According to Article 20(1) of the Constitution of India “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.”

Protection under this article applies only to criminal cases. The protection contemplated under this article is two-fold: (a) protection from punishment under any law that was not in force during the time of commission of the offence; and (b) any increase in the penalty for an offence cannot be retrospectively applied.

In Rao Shiv Bahadur Singh And Another vs The State Of Vindhya Pradesh, two government officials were accused of taking a bribe for carrying out an official act and for the commission of forgery in connection with such acts. They were charged under the relevant provisions of the Indian Penal Code which was adopted in the erstwhile State of Vindhya Pradesh by the means of an executive Ordinance.

The Ordinance was passed on 11th September, 1949, while the offences themselves are said to have been committed in the months of February, March and April, 1949, i.e., months prior to the Ordinance. It was therefore argued that the convictions were in respect of an ex post facto law creating offences after the commission of the acts charged as such offences and was hence unconstitutional.

The considered the question of the proper construction of article 20 of the Constitution, and held that “what is prohibited is the conviction of a person or his subjection to a penalty under ex post facto laws. The prohibition under the article is not confined to the passing or the validity of the law, but extends to the conviction or the sentence and is based on its character as an ex post facto law. The fullest effect must therefore be given to the actual words used in the article.”

The court also held that the right under article 20(1) does not apply to retrospective application of change in the procedure of the trial:

“In this context it is necessary to notice that what is prohibited under article 20 is only conviction or sentence under an ex post facto law and not the trial thereof. Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved.”

In Kedar Nath Bajoria v West Bengal the defendant, Chatterjee committed an offence in 1947 under the Prevention of Corruption Act which then prescribed a punishment of imprisonment or fine or both. In 1949, by an amendment of the law, the punishment was enhanced. Chatterjee was fined Rs. 50,000, for accepting Rs. 47,550 from the government as compensation for damages that he falsely claimed the government inflicted on his property.

Chaterjee claimed that the Rs. 50,000 fine violated Article 20(1) of the Constitution because, in 1947, the relevant criminal law only allowed for a fine equal to the amount of money the accused obtained from the commission of the crime. However, at the time of his trial in 1950, the relevant statute, enacted in 1949, allowed for increased fines. Agreeing with Chatterjee’s claim and setting aside the excess fine, the Supreme Court held that the enhanced punishment would not be applicable to the offence committed in 1947 because of the prohibition contained in Article 20(1).

In Sajjan Singh v. State of Punjab, a case under of the Prevention of Corruption Act, 1947 was registered against the accused. It was argued by the accused that when the section speaks of the accused being in possession of pecuniary resources or property disproportionate to his known to his known source of income only pecuniary resources or property acquired after the date of the Act is meant. To think otherwise, according to the appellant, would be to give the Act retrospective operation.

The court held that a statute cannot be said to retrospective “because a part of the requisites for its action is drawn from a time antecedent to its passing” and therefore held that the accused could be charged under the relevant provisions.

3.2 Article 20 (2): Double Jeopardy

The principle of double jeopardy is safeguarded under Article 20(2) of the Constitution which prohibits prosecuting or punishing a person for the same offence more than once.

The Supreme Court analysed the scope of this article in Maqbool Hossian v state of Bombay and held that “Article 20(2) incorporates within its scope the plea of “autrefois convict” as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.

The words “before a court of law or judicial tribunal” are not to be found in article 20(2). But if regard be had to the whole background indicated above it is clear that “in order that the protection of article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath.”

In the case of Maqbool Hossian, the accused was found in possession of undeclared gold, and the Customs Authorities thereupon took action under the Sea Customs Act, and confiscated the gold. The owner of the gold was however given the option to pay in lieu of such confiscation a fine of Rs. 12,000, which option was to be exercised within four months of the date of the order. Nobody came forward to redeem the gold.

Later, a complaint was filed in the Court of the Chief Presidency Magistrate, Bombay, against the appellant charging him with having committed an offence under Section 8 of the Foreign Exchange Regulation Act. The question that arose before the court was whether by reason of the proceedings taken by the sea Customs Authorities the appellant was prosecuted and punished for the same offence with which he was charged in the Court of the Chief Presidency Magistrate, Bombay.

The court held that the Sea Customs Authorities were not a judicial tribunal and the Sea Customs Act does not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. And therefore when the Customs Authorities confiscated the gold in question neither proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant.

Section 300 of the Criminal Procedure Code extends the protection to even persons acquitted by a court. Section 300 states that a person acquitted or convicted by a competent court may not be tried again for the same offence, thereby giving effect to the principle of autrefois acquit and autrefois convict.

3.3 Article 20 (3): Prohibition against Self-incrimination

Article 20(3) embodies the principle of protection against self-incrimination. Under this article no person accused of an offence can be compelled to be a witness against himself. In M. P. Sharma And Others vs Satish Chandra the court upheld a broad understanding of the phrase “to be a witness” and held it to include any documentary evidence given by any person which might be self-incriminatory.

However, in State Of Bombay vs Kathi Kalu Oghad while considering the admissibility of handwriting samples and fingerprints as against the protection from self-incrimination, they confined the meaning of the phrase “to be a witness”. They held that “to be a witness” means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.

The court also held that to be hit by Article 20(3) the testimony of the witness should be self-incriminatory by itself, “In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition, of the constitutional provision, it must be of such a character, that by itself it should have the tendency of incriminating the accused, if not also of actually doing so.” And therefore the court held that admission of handwriting samples and finger prints were permissible.

The Supreme Court in Selvi v State of Karnataka while considering the constitutional validity of lie-detector tests that Supreme Court held that: “The compulsory administration of the impugned techniques violates the ‘right against self-incrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence.”

The Court also stated that: “Forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose, since the test results could also expose a person to adverse consequences of a non-penal nature.”

The Court further said: “The protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973, it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion.”

Upholding the right to remain silent, guaranteed by Article 20(3) of the Constitution, the Supreme Court held that the forcible “conveyance of personal knowledge that is relevant to the facts in issue” violates Article 20(3) of the Constitution.

In Nandini Satpathy v P.L. Dani Ms Nandini Satpathy was accused of embezzling funds while serving as Chief Minister of Orissa. She was made to present herself before the Deputy Superintendent of Police (Vigilance) and provide answers to written questions. She refused to answer the questionnaire on the grounds that it was a violation of her fundamental right against self-incrimination.

Upon refusing to answer, Ms Satpathy was charged under Section 179 of the Indian Penal Code, 1860, which prescribes a punishment for refusing to answer any questions asked by a public servant authorised to ask that question. The issue before the Supreme Court was whether Ms Satpathy had a “right to silence” and whether people can refuse to answer questions during investigation that would point towards guilt.

The Supreme Court held that Ms Satpathy had to answer all questions that did not materially incriminate her. For questions she refused to answer, she was required to provide, without disclosing details, her reasons for fearing that answering such questions would result in self-incrimination. Her reasons for invoking her right to remain silent would then be examined and she would be liable for prosecution under Section 179 if it was determined that she refused to answer a question under the false pretence of self-incrimination.

The Supreme Court accepted that there is a prevalent tension between social interest in crime detection and the constitutional rights of an accused person. However, the protection of fundamental rights enshrined in the Constitution is of utmost importance and in the interest of protecting these rights “we cannot write off fear of police torture leading to forced self-incrimination”.

4. Article 22 of the Constitution of India

Clauses (1) and (2) of Article 22 confer four rights upon a person who has been arrested. Firstly, they can’t be detained in custody without a reason. Secondly, they have the right to be represented by a lawyer of their choice. Thirdly, they have the right to be produced before a Magistrate within 24 hours of arrest. Fourthly, they cannot be detained in custody beyond the 24 hours without the detention being sanctioned by the competent court.

In Joginder Kumar vs State Of U.P. the Supreme Court emphasised that the police should exercise restraint while making arrests:

“It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter.”

5. Conclusion

This module has dealt with the three cardinal principles of ex post facto laws, double jeopardy and right to self-incrimination. In India, the burden of proof is always on the prosecution. Article 20 essentially gives effect to this principle, and puts in place safeguards such as double jeopardy to prevent the State from repeatedly trying individuals for the same offence. Article 20 also protects citizens from being witnesses against themselves, with the onus being on the State to prove that they are guilty of the offence charged. These principles, as has been demonstrated, form the bedrock of India’s criminal justice system and ensure that citizens’ right to a fair trial is guaranteed.

Reference

• Article 20 (1) corresponds to the provisions in the U.S. Constitution which prohibit ex post facto laws;
• Article 20 (2) is based on the common law maxim nemo debet bis vexari– a man shall not be brought into danger for one and the same offence more than once;
• In American movies and TV shows, courtroom scenes often depict the witness “pleading the 5th”- this is nothing but the privilege against self-incrimination that is protected under Article 20 (3) of the Indian Constitution
• V.N. Shukla’s Constitution of India, M.P. Singh (Publisher: Eastern Book Company, Year: 2015)
• Tiwari, Neeraj Fair trial vis-à-vis criminal justice administration: A critical study of Indian criminal justice system Journal of Law and Conflict Resolution Vol. 2(4), pp. 66-73, April 2010
• Law Commission Report on Article 20(3) of the Constitution of India and the Right to Silence (http://lawcommissionofindia.nic.in/reports/180rpt.pdf)
• Fair Trial Manual – A Handbook for Judges and Magistrates (http://www.humanrightsinitiative.org/publications/police/fair_trial_manual.pdf)
• Principles of Natural Justice In Indian Constitution (http://www.legalservicesindia.com/article/article/principles-of-natural-justice-in-indian-constitution-1519-1.html)
• Trial Observation Manual for Criminal Proceedings (http://www.opentrial.info/images/2/2f/Criminal_Trial_Monitoring.pdf)