top of page



Updated: Nov 22, 2021


To curb the offences, the laws are put to force, is seen often that as and when a crime is committed, there is a well-established procedure, which is followed by the authorities and in consideration of the evidence and witnesses, arrests are made, confession is taken, and then charge sheet is filed before the court of Law. But the interesting fact is that the person so arrested is still recognized as an accused and not as a convict as the court is the authority to check whether the person so framed is a convict or not by examining the evidence and checking whether the due process has been followed or not. Due process refers to the procedure the administration ought to follow. This was a restriction put on the judicial system. It assures the accused that a fair trial would be performed by the well-established principles of criminal law.[1]

This is so because it works on a common law principle, "Innocent until proven guilty," which in literal terms means that a person is to be held liable and must be proven beyond a reasonable doubt.

There have been some instances in which there has been a clear violation of fundamental rights or other rights conferred upon the convict by the law. Even the prescribed procedure given under the procedural laws has not been followed.[2]

Rights Conferred Upon the Accused

· Article 20(1) of the Indian Constitution - This article of the Indian constitution talks about Ex-post Facto Law, which is a layman language means that a person must not be held liable for an offence which was not an offence when committed and subsequent due to amendment or Introduction of any other law it was made an offence, in such a case that person cannot be held liable. This article conveys that since the conception of law, it must be prospective.

Case Laws-:

1. Shiv Bahadur Singh Vs. Vindhya Pradesh[3]- In this case, it was held by the honourable court that Article 20(1) prohibits conviction under Ex post-Facto laws. However, changes under the procedural rules are allowed, but Changes under substantive are not.

2. Rattan Lal Vs. State of Punjab[4]Under this case, it was held that soever Law neutralizes an existing criminal law, ex post facto law will not be applicable.

· Article 20(2) – According to it, no person shall be prosecuted and punished for an offence more than once. This is also known as Double Jeopardy. Here the primary thing to be noticed is the conjunction "and," which means that if a person had earlier been prosecuted and then later was released, he can later on again be prosecuted and punished. As to apply Double Jeopardy, a person must be both charged as well as punished.

It is based on the principle of “NEMO DEBET BIS VEXARI”- It means that a person once vexed must not be punished as well as prosecuted again for the same set of facts, only if there has been a decision by a competent authority in the prior case then only this would be applicable.[5]

Essentials required to claim the defence of Double Jeopardy

· A person must be accused of any offence

· Proceedings must have taken place before a court of competent jurisdiction.

· The person must have been "prosecuted and punished."

Case Laws

Proceedings must have taken place before a court of competent Jurisdiction-:

Maqbool Hussain Vs. State of Bombay[6]

Maqbool Hossain came back from Santa-Cruz airport in Jeddah to Bombay airport, where the customs authorities caught him with 107 tolas of gold. The quantity which was taken was found to be in contravention of the guidelines issued by the government of India published in the year 1948. The Gold carried by him was confiscated under the Sea and customs Act under Article 167(8). The owner had the opportunity to receive the gold by making the payment of Rs 12,000 within four months from the order issued by the Competent authority. But the price was not completed.

It was then that Maqbool was prosecuted for this offence, and they filed a petition before the court that he cannot be prosecuted for this offence twice. It was held by the honourable court that there is a difference between the departmental inquiry and the inquiry by the court of competent jurisdiction. And even to invoke double jeopardy, the person must previously have been prosecuted and punished for the same act. For the same set of facts, he cannot be charged again. But in the above-stated case, Gold was merely confiscated under a statutory provision, and the judicial proceedings took place later on, and thus the prosecution was upheld.

· Article 20(3) – Protection against Self Incrimination- According to it, a person cannot be forced to incriminate against himself; in a literal sense, it means a person cannot be compelled to witness against himself.

NEMO TENETUR SEIPSUM ACCUSARE- "No Man has to accuse himself."

To take the defence of Self Incrimination, the following ingredients must be followed-:

- That the person invoking Article 20(3) must be an accused.

- That person must be under compulsion.

- Compulsion must lead to giving evidence against him.

When all three ingredients are met, then in such a situation, protection against self-incrimination could be granted.

Case Law- MP Sharma Vs. Satish Chandra[7]

In the above-stated case, the premises of the petitioner’s house was thoroughly checked by the police, and the petitioner stated that his Article 19(1)F was violated, which was the right to enjoy the property. And even Article 20(3) was also violated. Considering the first contention, Court stated that article 191F was subject to certain restrictions and officials' act was well within the ambit of the law. While considering the second contention, the court noted that Article 20(3) and its scope must be restricted to oral witnesses and include the documentary testimony. But was delivered by the court that such seizure and searches were a part of Police Investigation, and it cannot be substituted as a summon and thus can not be called a Compelled Witness, and so it does attract Article 20(3). In this case, the court gave an extensive interpretation of the term "to be a witness," without the permission of the appropriate authorities, any Finger Prints, handwriting Specimen, DNA could be collected from the accused within the ambit of 20(3).[8] This ruling was overruled in the State of Bombay Vs. Kathi Kalu[9] The case that such a broad interpretation of such a critical clause could undermine the outcome of an issue, so it was held that now only a person cannot be explicitly compelled to say something out of his knowledge against himself.

Selvi vs. the State of Karnataka[10]

In this case, it was held that the NARCO Test, BEAP test, done without the accused's consent, was held to be a violation of personal liberty, privacy, and Article 20(3).


Indian Constitution, Basic Human Rights and Principles of Natural Justice advocates the need of a provision providing free legal aid to the accused of its representation before the court, when it is not able to afford a lawyer or due to any other reason has no representation, the state government or central Government must provide him with a representation. Article 39 A has been embedded into the constitution to protect the interest of all sections of the Society and provide them with equal opportunity before the court of Law.

Sheela Barse Vs. state Of Bombay[11]

It was decided in this case that as and when the police arrest a person, its information has to be shared by the legal aid society if he has no representation, then in such a case, the authority has to be provided with the representation by the concerned authority at the state's expenditure.

Sukh Das Vs. State of Bihar[12]

In this case, it was held by the honourable court that providing free legal aid to the accused is the duty of the state, and this obligation is a part of the Principle of Natural Justice as well as ensures speedy and fair trial.

Do prisoners have a right to vote

Section 62 (5) of the Representation of People Act, 1951 clearly states that a person imprisoned or is under lawful police custody or is confined within prison does not have a right to vote. And this subsection does not apply to the person who is a detenu under preventive detention.

Case Law

Jan Chaukidar Vs Union of India[13]

In the above-stated case the sub-Section 5 of Section 62 of the Representation of People Act,1951, was challenged before the Patna High Court, in which the petitioners clearly stated that not allowing the prisoners to vote is against the spirit and value enshrined in our constitution, to be a specific violation of the concept of Equality.

The Respondent stated that, right to vote, being a statutory right, was subject to certain restrictions; the right granted by a statute could also be taken away by the same by imposing reasonable restriction by upholding the basic structure and Spirit of our Constitution.

The court stated that the rights granted by the constitution could rightly be taken away. It is a privilege, and even if the name of the person is mentioned on the electoral list but is not qualified as per the requirement of the Act, he may not be allowed to Vote. Respondents’ contention was upheld.


“A person is said to be innocent until proven guilty” –

The rights of every citizen are essential, but the rights of the accused are indeed a need and have ever since been protected by the honourable court through their interpretation in case laws discussed above. The concept of privacy has been given due weightage, and things are to be done by the procedure established by the law. Economic Condition or Disability must not be a reason to deny justice to a person; it has been the state's responsibility to provide and ensure that the Justice is delivered by providing/ introducing legislation and schemes. To avoid any undue influence, coercion is avoided by ensuring the implementation of the law.

[1] Due Process of Law: A Comparative Study of Procedural Guarantees Against Deprivation of Personal Liberty in the United States and India-By K.K. Nigam. [2] [3] AIR 1953 S.C. 394 [4] (1964) 7 S.C.R. 676) [5] [6] 1953 AIR 325,1953 SCR 730 [7] (1954) 1 SCR 1077 [8] [9] AIR 1961 SC 1808: (1962) 3 SCR 10 [10] Criminal Appeal No 1267 of 2004 [11] CITATION:(1983) 2 SCC 96 [12] CITATION:(1986) 2 SCC 401 [13] (2004) 2 BLJR 988.

Recent Posts

See All


INTRODUCTION The advancement in technology is done for the comfort of Society as a whole. This advancement affects the economy positively; job creation, Business Boom, Competition all are subsets of t

bottom of page