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Fundamental Rights in Constitution of India Part - 3

Article 20 to 21A

Article 20. Protection in respect of conviction for offences–

(1) 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.

(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.

Analysis of Article 20

This Article protectes an accused person from arbitrary and excessive punishment. This protection is available to both citizens and aliens and also to juristic persons like a Company.

It has three important provisions:

1. There can be no ex-post-facto penal law. It has 2 parts -

   (a) A person cannot be convited under a law which was not in force at the time of commission of the offence.

   (b) A persson cannot be given punishment more than which was applicable under a law which was in force at the time of commission of the offence.

   Legislature has the right to make ex-post-fact laws. If such ex-post-facto laws affect any offences commited in the past, Article 20(1) protects the accused against such laws. The law applicable on offences is the law which was in force at the time of commission of the offence. If laws are amended in future such amended laws are not applicable to offinces whcih were committed before such amendment in the law.

   In Ratanlal Vs. State of Punjab, the accused had committed rap in September 2020. At that time maximum punishjment for rape was 7 years imprisonment. After that the law was amended to increase the punishment to 10 years imprisonment. In this case the convict will undergo only 7 years imprisonment and not 10 years. However had the punishment been reduced to 5 years by the amendment, the accused wouls have to undergo only 5 years imprisonment.

   This Article only prohibists conviction and punishment under ex-post-fact laws, but does not prohibit trial. Also there is no protection under this Article against Preventive detention.

   The protection of Article 20 is only under criminal laws. It is not available under civil laws and tax laws.

2. Article 20(2): No double Jeopardy

   No person can be tried and punished more than once for the same offence. However this protection is available only in cases before courts or judicial tribaunals and not in any other proceedings.

   The Court has held in Tomas Das Vs State of punjab that there are 3 requirements for protection under Article 20(2):

   1. The person should be accused of an offence.
   2. The person should have been tried for an offence.
   3. The result of the trial should have been punishment.

   If a person has been punished for an offence, he cannot be punished again for the same offence.

   I SA Venkatraman, member of Indian Civil Service has filed a Petition against criminal trial. The Supremen Court held that criminal procesution as a result of findins in Departmental Proceedings is not covered under double prosecution.

   The Court has held in Mohanlal Vs. State of Rajasthan AIR 2015 SC 2098 that Article 20 prohibits convinction and punishment under ex-post-fact laws, but it does not prohibit trial.

   In Maru Ram and others Vs Union of India 1980 AIR 2147, the Court has held that Article 20 (1) protects against increased punishment under ex-post-fact laws. However in Ratan Lal Vs. State of Punjab the Supreme Court has held that redused punishment under ex-post-fact laws is pemitted./p>

   Protection from double punishment for the same offence is also provided in Section 300 (1) of CrPC.

3. Article 20(3): No self-incrimmination

   No accused shall be forced to be a witness against himself in any offence.

   This proivition has been made to protect the accused from torture by the police and froced confession. Similar provision is in Section 161 of CrPC. Sections 25, 26 and 27 of Indian Evidence Act provide that self-incriminatory statement of an accused shal not be admissible in evidence. But if the accused confesses his crime with evidence, then it is admissible. The protection against self-incrimination is availbale both for oral and documentary evidence.

   It has been held in MP Sharma Vs Satish Chandra that the protection of Article 20(3) is available to both accused and a witness. But if a person voluntarily decides to confess then Article 20(3) does not stop him from doing so.

   IN the case of Nadini Satpathy Vs PL Danee, the Court has held that section 161 of CrPC empowers the police to interrogate the accused, but calling a woman to the police station for interrogation is a violation of Section 160(1). Section 161(2) and Article 20(3) provide that a witness cannot be compelled to answer self-incriminatory questions during investigation.

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.

Analysis of Article 21

The protection to life and liberty is not new. Its seeds can be seen in the Magna Carta issued in 1215 by teh British King John. There is Bill of Rights in the US Constitution. At the International level Universal Declaration of Human Rights was done in 1948 under the United Nations. It is also included in the European Convention of Human Rights of 1950. The Supreme Court has held in Vishaka Vs State of Rajasthan, 1997 that International Conventions can be read for interpretations of fundamental rights under the Constitution.

Though the protection to life and liberty is also available to forreigners under Article 21 yet The Supreme Court has held in Sarbanand Sonowal Vs Union of india, 2005 that this Article does not confer any right on foreigners to reside in India and does not reduce the powers of Government of India to deport such foreigners.

The Supreme Court has held about preventive detention in AK Gopalan Vs State of Madras, 1950 that freedom under Article 19 does not mean freedom to roam about freely, and there is no prohibition of preventive detention under Article 21.

Supreme Court has given a very broad interpretation to Article 21 and has interpreted freedom of life to mean freedom to live with dignity.

1. The Court has held in Peoples Union for Civil Liberties Vs Union of india and others, 2002 that right to food is included in right to life under Article 21.
2. In Suchita Shrivastav Vs Chandigarh Administration, 2010 the Supreme Court has widened the scope fo Article 21 and has held that the choice to terminate pregnancy by a woman is included in right to personal liberty under Article 21.
3. In Subramaniyan Swami Vs Union of India Ministry of Law and others , 2016 Supreme Court has held that right to reputation is also included in Article 21.
4. The Court has held in Chandra Kumari Vs Police Commissioner Hyderabad,1998 that Beuty Contests are not objectionable in themselves, but if there is indecent representation of women or anything which is insulting to women then it is a violation of Indecennt representation of women, Act, 1986 and also of Article 21 of teh Constitution.
6. The Supreme Court has held in Satwant Swahney Vs Ramnathan, 1967 that foreign travel and getting a passport is a right under Article 21.
8. In Meera Nireshwalia Vs State of Tamil Nadu, 1991 the facts were that a woman who had gone to the police to complain against damage to her house by antisocial elements was detained illegally by the police and was not even given food. Supreme Court held it to be a violation of Article 21 and ordered compensation.
9. Supreme Court held in Sunil Batra Vs Delhi Administration, 1978 that Prisons Act 1894 does not authorise jaim authorites to torture, punish or discriminate against prisoners and doing so is a violation of frrdoms under Article 21.
10. Supreme Court has interpreted right to privacy in many cases. In PUCL Vs Union of india, 1997 the Court has held that information collected by telephone tapping should be seen only by senior officers when needed and should be destroyed when it is not longer needed, and certianl within 6 months.
11. In Justice Puttaswami (retired) Vs Union of India , 2015 The Court has held right to privacy to be a fundamental right under Article 21. In this case the Adhar Card scheme of Government of India was challenged. The scheme was uphled by the Court but many provisions of the scheme were rejected.
12. The Supreme Court has held the right to medical treatment to be a fundamental right under Article 21 in Pt. Parmanand Katar Vs Union of India, 1989 and has directed that no hospital of doctor can refuse treatment to any person in accident cases.
13. Does right to life also includes right to end one's life? A two judge bench of the Supreme Court has held in P rathinam Vs Union of India, 1994 that right to euthnasia is included in Article 21 and has held Section 309 of IPC to be ultra-vires. However in Smt Gtan Kaur Vs State of Punjab, 1996 teh Court reversed its decision and held that only Parliament can make laws with respect to euthenasia.
14. The Supreme Court has held the right to clean environment to be a part of right to life under Article 21 in many cases. In Subhash Kumar Vs State of Bihar, 1991 The Court directed the Pollutions Control Board of Bihar to take approipriate steps to prevent disposal of waste in the river by steel factories in Bokaro. In Rural Litigation and Entitlement Center Vs State of UP, 1985 the Court ordered closure of many lime stone mines in Dehradoon becaus ethey were harming the environment.
15. In MC Mehta and others Vs Union of India, 1987 the Supreme Court ordered compensation of Rs 2o lakh to persons who had sufferedd due to leakage from Shriram Fertilizer Factory. Similarly in MC Mehta Vs Union of India, 2004 the Court not only stopped mining in the Arawalis, but also appointed a committee to monitor the rejuvenation of environment.
16. The Supreme Court held noise pollutions by fire crackers in Re Noice Pollution case, 2005, to be a violation of right to life under Article 21.
17. Supreme Court has also given many right to prisoners under Article 21. These incluse free legal aid, right to expeditious hearing and right to fair hearing etc.
18. Death penalty and Article 21 - Supreme Court has held death penalty to be valid in Bachan Singh Vs State of Punjab, 1980 and has held that it is not vilative of Articles 14, 19 and 21. But the Court has said that it should be given in "Rarest of the Rare" cases and not as a substitute to life imprisonment. In Attorney General of India Vs Lachhma Devi and others the Court has held public hanging to be extra constitutional and gross violation of Article 21. The Supreme Court has held that undue delay in excecution of death penalty to be a torture and enough basis for reprivement and conversion of death punishment to life imprisonment.
19. Supreme Court has held police excesses and death in custody to be a violation of Article 21. In Neelbati Behra alias Lalita Behra Vs State of Orissa the police had taken the son of the petitioner. Later his dead body was found on a railway line. The court considered it to be a death in custody and awarded compensation.
20. The Court has interpreted the right of rape victims in Delhi Domestic Wroking Women Forum Vs Union of India, 1995. The Court has directed that -
    1. Victims should be given legal representation on reaching the police station and tney should be informed about this right.
    2. As far as possible the victim should remian anonymous.
    3. A criinal injuries board should be established to give compnesation to the victims before conviction of the accused.
21. In Vishakha and others Vs State of Rajasthan and others, 1997, the Court has held sexual harassment at work place to be a violation of right to life with dignity under Article 21 of the Constitution, had has issued detailed guidelines for employers. These are -
    1. It is the duty of employers and responsible persons to stop sexual harassment at work place.
    2. It is the duty of employers to provide a safe environment for women.
    3. A committee chaired by a woman should be made to hear complaints and a system for inquiring into complaints should be put in place.
    4. Rules should be made to take action against wrong doers.
    5. Awaremess should be spred amonf working women about these rights.
22. In Deputy Inspector General of Police Vs S Samuthiram and others, 2012 the Supreme Court has held even teasing to be vilative of Article 21nad has issued guidelines to stop this -
    1. All governments shall post women police officers in plain cloths at all public places.
    2. CCTV cameras should be installed in all important places.
    3. Public institutions and in-charges of public servises are ordred to inform the police immediately about any eve teasing.
    4. Women hel line should be established in all Union Territories and States.

An important thing about Article 21 is that, the rights conferred by it are not suspended even during Naitonal Emergency, when other fundamental rights are suspended. The provision for this was made by the 44^th Constitutional Amendment in 1978, which amanede Article 359. This ensures that even during emergency ordinary people continue to enjoy their important rights, and as has been held in Menka Gandhi case by the Supreme Court personal liberty of a person can only be taken away by following the procedure established by law. Moreover this procedure cannot be arbitrary and unreasonable.

[21A. Right to education–

The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.]

Right to Education was added in the Constitution by the Constitution 86^th Amendment Act, 2002 by adding Article 21A in fundamental rights.

In Mohini Jain Vs State of Karnataka, 1992 teh Court had prohibited capitation fees to be and had held that if Article 44 in Part 4 of the Constitution is not read as a fundamental right then it will be a violation of life with dignity under Article 21.

Un Unnikrishnan JP and others Vs State of Andhra Pradesh the Court held that right to free education is limited to the age of 14 years. After that it depends of the financial condition of the State and the concerned person.

Please watch this video on YouTube channel NewsClickin available under Creative Commons Attribution license (reuse allowed) in which ex Cental Information Commissioner and Dean of School of Law of Mahindra University Hyderbad, Dr Madabhushi Shridhar Aryaluis explainign Article 21.