Theoretical overview
Article 20
Article 20 of the Indian constitution talks about protection in respect of conviction for offences. Clause 1 of the same says that no person shall be convicted on 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 subject to a penalty greater than that which might have been inflicted under the laws in force at the time of the commission of the offence. In layman’s language, this particular clause provides protection against retrospectively. This particular clause is only applicable on punishments and convictions and not on procedural laws.
Article 20(2) says that no person shall be prosecuted and punished for the same offence more than once or in other words protection against double jeopardy. Double jeopardy is based on nemo debet bis vexari which means no man ought to be twice vexed. No person should be twice punished upon the same set of facts if there has been a final decision of a competent court. Its essentials are –
- Person must be accused of offence
- Proceeding must have taken place in front of a court or judicial tribunal
- The person should be prosecuted and punished in previous proceedings
- The offence must be same for which he has prosecuted and punished
Article 20(3) protects against self-incrimination. No person accused of an offence shall be compelled to be a witness against himself. It is based on the principle nemo tenetur scipsum accusare which means no man has to accuse himself. The scope of 20(3) is that you cannot compel a person to say something relating to the charge against himself. It is a protection against compulsion to be a witness which is giving evidence against himself.
Article 21
Article 21 of the constitution talks about protection of life and liberty. No person shall be deprived of his personal life and liberty except the procedure established by law. Here, the words procedural established by law means that law is duly enacted by legislature is valid if procedure to establish it has been correctly followed. This can only be done by due process of law which checks whether any law is fair and non-arbitrary wide scope to court to grant protection to the rights of its citizens.
One of the leading case laws to understand the wider scope of article 21 is Maneka Ghandhi vs. Union of India,1978 where it was held that article 19 and 21 go hand in hand including article 14. The law has to satisfy non arbitrariness under 14 and restrictions in article 19 to be available to be enforced. Article 14,19 and 21 is the golden triangle of constitution.
Article 21 is not limited to its one-line definition given in the bare acts but instead it has a wider interpretation. This wider scope can be better understood by the following facets of article 21 –
Right to live with dignity – it ensures access to just and humane conditions. Human dignity is an important consideration as it involves rights and freedoms which enable person to live life without encroachment upon its self-respect and pride.
Right to livelihood – slum dwellers should not be considered as trespasser as they are living out of sheer helplessness.
Right to health and medical assistance – supreme court has held that all doctors either private or govt. are obliged to extend medical assistance to injured immediately without asking for legal formalities.
Right to die – article 21 allows right only to die with dignity. Right to die is the unnatural termination of life which is against the concept of right to life. Though, passive euthanasia is allowed in certain cases.
Right to education – it is the right to get education at all levels. Also, free education shall be provided by the state till the age of 14 to all its citizens.
Right to privacy – everyone shall have the right to keep its private life. Allowing medical examination of a women’s virginity violates her right to privacy.
Article 22
Article 22 of the Indian constitution grants protection to person who are arrested or detained. It is a well-known fact that detention is of two types which are punitive and preventive detention. Article 22 grants protection against preventive detention in certain conditions. Its clauses are as follows –
- right to consult a lawyer should be given
- Must be produced before the magistrate within 24 hours of arrest
- Provides exception of clause 1 & 2 in case where a person is detained under any law providing for preventive detention
- Maximum detention can be of 3 months. Only the advisory board has the right to extend it.
- Ground of detention should be represented
- Grounds will not be represented if against the public interest, an exception to clause 5
- Parliament has power to change and amend it.
Relevant articles
Section 20. – Protection in respect of conviction for offences
(1) No person shall be convicted of any offence except for violation of the 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
(2) No person shall be prosecuted and punished for the same offence more than once
(3) No person accused of any offence shall be compelled to be a witness against himself
Article 21. – Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law
Article 22.– Protection against arrest and detention in certain cases
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate
(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention
(4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
(6) Nothing in clause ( 5 ) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose
(7) Parliament may by law prescribe
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause ( 4 );
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause ( 4 ) Right against Exploitation
Important case laws
Mohan Lal vs. State of Rajasthan,2015 – article 20 is only applicable in case of punishment and convictions and not on procedural laws
Maqbool Hussain vs. State of Bombay,1953 – a departmental enquiry was set up on the seizer of gold. The court held that he can be prosecuted by the courts as the previous enquiry and conviction was not done in front of a court or judicial tribunal.
MP Sharma vs. Satish Chandra,1954 – SC held that the right against self-incrimination under article 20 encompasses following –
- It is a right pertaining to a person who is accused of an offece
- It is a protection against compulsion to be a witness
- It is a protection against such compulsion relating to his giving evidence against himself.
Selvi vs State of Karnataka,2010 – Narcoanalysis, polygraphy and brain finger printing tests done on accused without their consent were held violative of 20(3) because it was preventive of individual liberty.
AK. Gopalan vs. State of Madras,1950 – communist leader was detained under preventive detention act 1950. Supreme court held that he was detained according to procedure established by law.
Maneka Gandhi vs. union of india,1978 – her passport was impounded under section 10(3)(c) of passport act 1967 and no reason was given. She filed a writ under article 32 for violating of her personal liberty under article 21. The seven-judge bench held that article 19 and 21 go hand in hand including article 14. The law has to satisfy non arbitrariness under 14 and restrictions in article 19 to be available to be enforced. Article 14,19 and 21 is the golden triangle of constitution.
Parmanand Kataria vs. Union of India,1989 – supreme court has held that all doctors either private or govt. are obliged to extend medical assistance to injured immediately without asking for legal formalities.
Important legal maxims
nemo debet bis vexari which means no man ought to be twice vexed
nemo tenetur scipsum accusare which means no man has to accuse himself
Points to remember
- Article 20 of the Indian constitution talks about protection in respect of conviction for offences.
- Article 20(2) says that no person shall be prosecuted and punished for the same offence more than once or in other words protection against double jeopardy.
- Article 20(3) protects against self-incrimination. No person accused of an offence shall be compelled to be a witness against himself.
- Article 21 of the constitution talks about protection of life and liberty. No person shall be deprived of his personal life and liberty except the procedure established by law. Here, the words procedural established by law means that law is duly enacted by legislature is valid if procedure to establish it has been correctly followed. This can only be done by due process of law which checks whether any law is fair and non-arbitrary wide scope to court to grant protection to the rights of its citizens.
- Article 22 of the Indian constitution grants protection to person who are arrested or detained