Today’s post will discuss about Article 20 of the Constitution of India and the same is being reproduced here under:-
(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.
Th reason why the article is part of the Constitution of India has been explained by Hon’ble Apex Court in the matter of Rao Shiv Bahadur Singh And Another vs The State Of Vindhya Pradesh on 22 May, 1953 Equivalent citations: 1953 AIR 394, 1953 SCR 1188 wherein it was provided that
This article in its broad import has been enacted to prohibit convictions and sentences under expost facto laws and there can be no doubt as to the paramount importance of the principle that such ex Post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust.
In Soni Devrajbhai Babubhai vs State Of Gujarat And Ors on 28 August, 1991 Equivalent citations: 1991 AIR 2173, 1991 SCR (3) 812 it was held that acceptance of the appellant’s contention would amount to holding that the respondents can be tried and punished for the offence of dowry death provided in section 304-B of the Indian Penal Code with the minimum sentence of seven years’ imprisonment for an act done by them prior to creation of the new offence of dowry death. Therefore, in the opinion of the hon’ble Apex Court this would have clearly denied to them the protection afforded by clause (1) of Article 20 of the Constitution and therefore protection given by Article 20(1) was a complete answer to the appellant’s contention.
In Hatisingh Mfg. Co. Ltd. v. Union of India, (1960) 3 SCR 528 It was held that the protection of Article, 20 (1) avails only against punishment for an act which in treated as an offence which when done was not an offence.
Before moving on to the relevant decisions, lets have reference to the following-
The article consists of two parts and how they have to be read
Part-I- 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.
Part II-No Person shall 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.
How they have to be read has been a matter of debate and was settled by Hon’ble Apex Court in the matter of State of West Bengal v. S. K. Ghosh, (1963) 2 SCR III wherein it was held that Article 20(1) deals with conviction of persons for offences and for subjection of them to penalties. It provides firstly that “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”. Secondly, it provides that no person shall 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”. Clearly, therefore Art. 20 is dealing with punishment for offences and provides two safeguards, namely,
- that no one shall be punished for an act which was not an offence under the law in force when it was committed, and
- that no one shall be subjected to a greater penalty for an offence than what was provided under the law in force when the offence was committed.
In P. Ummali Umma v. Inspecting Assistant Commissioner of Income-tax [1967] 64 I.T.R. 669, K. K. Mathew, J. (as he then was), deciding about the violation of Article 20(1) of the Constitution with reference to the amendment made in Section 271 of the Income-tax Act, 1961, providing for imposition of penalty under that Act provided about the interpretation of two clause as follows:
A question has been raised in some cases as to whether the prohibition extends to penalties other than punishments awarded in judicial proceedings. No such question will arise if the word ‘penalty’ is read with the word ‘convicted’ in the earlier part of the clause. While the first part of the article bars a conviction, the second part relates to the punishment or sentence that may be inflicted upon such conviction. A penalty, therefore, would come within the purview of Article 20(1) only if the earlier part of the clause is attracted, i.e., there must have been a conviction for an offence. Unless there is a conviction, no question of the latter part of the article applying will arise.
Meaning of the term “offence”-
Since the term offence has not been defined under the Constitution of India, therefore reference would have to be drawn from the General Clauses Act, 1897 wherein clause 3(38) defines the term “offence” as follows:
(38) “offence” shall mean any act or omission made punishable by any law for the time being in force.
Therefore, the application of article 20 is upon any act or omission punishable by the law.
Meaning of the term “law in force”-
The term “Law in force” was explained by the Hon’ble Apex Court in the matter of Rao Shiv Bahadur Singh And Another vs The State Of Vindhya Pradesh on 22 May, 1953 Equivalent citations: 1953 AIR 394, 1953 SCR 1188 wherein it was provided that
Law in force” referred to therein must be taken to relate not to a law “deemed” to be in force and thus brought into force, but the law factually in operation at the time or what may be called the then existing law. Otherwise, it is clear that the whole purpose of article 20 would be completely defeated in its application even to ex post facto laws passed after the Constitution. Every such ex post facto law can be made retrospective, as it must be, if it is to regulate acts committed before the actual passing of the Act, and it can well be urged that by such retrospective operation it becomes the law in force at. the time of the commencement of the Act. It is obvious that such a construction which nullifies article 20 cannot possibly be adopted. It cannot therefore be doubted that the phrase “law in force” as used in article 20 must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law “deemed” to have become operative by virtue of the power of legislature to pass retrospective laws. It follows that if the appellants are able to substantiate their contention that the acts charged as offences in this case have become such only by virtue, of Ordinance No. XLVIII of 1949 which has admittedly been passed subsequent to the commission thereof, then they would be entitled to the benefit of article 20 of the Constitution and to have their convictions set aside.
The questions which this today’s article will dwell upon is whether Article 20(1) is applicable upon civil liabilities as provided under the Taxation Law or is applicable upon the Criminal Proceedings and the impact of the term “convicted” and “offence”. The major landmark cases on the applicability of Article 20 of the Constitution of India are as follows:
Applicability of Article 20 on the penalty imposed under Taxation Laws-Judgement against the fact that penalty under Taxation statutes are also covered by Article 20
Reference-1- The presence of the words ‘conviction’ and ‘offences’, in the marginal note ‘convicted of an offence’, ‘the act charged as an offence’ and ‘commission of offence’ in Clause (1) of Article 20, Prosecuted and punished’ in Clause (2) of Article 2 and ‘accused of an offence’ and ‘compelled to be a witness against himself’ in Clause (3) of Article 20 clearly suggests that Article 20 relates to the constitutional protection given to persons who are charged with a crime before a Criminal Court-Shiv Dutt Rai Fateh Chand and others v. Union of India and another [(1983) 3 SCC 529
The contention of the petitioners is that any act or omission which is considered to be a default under the Act for which penalty is leviable is an offence, that such act or, omission was not an offence and no penalty was payable under the law in force at the time when it was committed and hence they cannot be punished by the levy of penalty under a law which is given retrospective effect. They principally rely on Article 20 (1) in support of their case. Article 20 (1) is modelled on the basis of Section 9 (3) of Article 1 of the Constitution of the United States of America which reads: “No bill of attainder or ex post facto law shall be passed”. This clause has been understood in the United States of America as being applicable only to legislation concerning crimes. (See Calder v. Bull, (1798) 3 Dall 386). The expression ‘offence’ is not defined in the Constitution. Article 367 of the Constitution says that unless the context otherwise provides for words which are not defined in the Constitution, the meaning assigned in the General Clauses Act, 1897 may be given. Section 3 (38) of the General Clauses Act defines ‘offence’ as any act or omission made punishable by any law for the time being in force. The marginal note of out Article 20 is ‘Protection in respect of conviction for offences’. The presence of the words ‘conviction’ and ‘offences’, in the marginal note ‘convicted of an offence’, ‘the act charged as an offence’ and ‘commission of offence’ in Clause (1) of Article 20, Prosecuted and punished’ in Clause (2) of Article 2 and ‘accused of an offence’ and ‘compelled to be a witness against himself’ in Clause (3) of Article 20 clearly suggests that Article 20 relates to the constitutional protection given to persons who are charged with a crime before a Criminal Court. (See H. M. Seervai: Constitutional Law of India (3rd Edition) Vol., 1, page 759). The word ‘penalty’ is a word of wide significance. Sometimes it means recovery of an amount as a penal measure even in a civil proceeding. An exaction which is not of compensatory character is also termed as a penalty even though it is not being recovered pursuant to an order finding the person concerned guilty of a crime. In Article 20 (1) the expression ‘penalty’ is used in the narrow sense as meaning a payment which has to be made or a deprivation of liberty which has to be suffered as a consequence of a finding that the person accused of a crime is guilty of the charge.
It was further concluded that
After giving an anxious consideration to the points urged before us, we feel that the word ‘penalty’ used in Article 20(1) cannot be construed as including a ‘penalty’ levied under the sales tax laws by the departmental authorities for violation of statutory provisions penalty imposed by the sales tax authorities is only a civil liability, though penal in character.
Reference-2- “convicted” “commission of the act charged as an offence”, “be subjected to a penalty”, “commission of the offence”, “prosecuted and punished”, “accused of any offence”, would indicate that the proceedings therein contemplated are of the nature of criminal proceedings, before a Court of law or a judicial tribunal-Maqbool Hussain v. State of Bombay, 1953 SCR 730
The very wording of Article 20 and the words used therein :- “convicted” “commission of the act charged as an offence”, “be subjected to a penalty”, “commission of the offence”, “prosecuted and punished”, “accused of any offence”, would indicate that the proceedings therein contemplated are of the nature of criminal proceedings, before a Court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
Reference-3- The Article 20 contemplates proceedings of the nature of criminal proceedings and the prosecution in this context means an initiation of proceedings of a criminal nature-Raghunandan Prasad Mohan Lal, … vs The Income Tax Appellate Tribunal … on 3 November, 1969 Equivalent citations: AIR 1970 All 620, 1970 75 ITR 741 All
The Supreme Court in Maqbool Hussain v. State of Bombay, AIR 1953 SC 325 held that the Article 20 contemplates proceedings of the nature of criminal proceedings and the prosecution in this context means an initiation of proceedings of a criminal nature. The first part of Article 20(1) prohibits a conviction while the second part deals with penalty that may be inflicted on conviction by way of punishment.
10. The first contention based on the alleged violation of Article 20 is accordingly) rejected.
Reference-4- With respect, we concur with the view taken by the Kerala and Allahabad High Courts which finds support from the above-quoted decision of the Supreme Court pointing out that imposition of penalty under a fiscal law is of the nature of recovery of additional tax only-Central India Motors vs C.L. Sharma, Assistant … on 7 December, 1979 Equivalent citations: 1980 46 STC 379 MP Equivalent citations: 1980 46 STC 379 MP
In Jawala Ram v. State of Pepsu A.I.R. 1962 S.C. 1246, it was held that the unauthorised use of canal water is not an “offence” and the imposition of enhanced water charge under the statutory rules is not a “penalty” for such an “offence”, since there is no law forbidding the unauthorised user of water. Dealing with the applicability of Article 20 of the Constitution in that context, it was held that the word “offence” in the several clauses of Article 20 must be understood to convey the meaning given to it in the definition contained in the General Clauses Act. This decision clearly shows that Article 20 applies only to offences properly so called, i.e., criminal offences and not to imposition of any penalty or an extra charge for any unauthorised act which is not forbidden by any law for the time being in force. The imposition of penalty under a fiscal law requiring payment of an extra sum of money is in reality a requirement of an additional tax imposed upon a person in view of his dishonesty and contumacious conduct: see C. A. Abraham v. Income-tax Officer [1961] 41 I.T.R. 425 at 430 (S.C.) and Commissioner of Income-tax v. Bhikaji Dadabhai & Co. [1961] 42 I.T.R. 123 at 128 (S.C.) The nature of penalty which is in reality only the requirement to pay additional tax under a fiscal law, as indicated by the Supreme Court itself, shows that the retrospective operation of a statutory provision imposing penalty under a fiscal law cannot attract the prohibition contained in Clause (1) of Article 20 of the Constitution.
8. In P. Ummali Umma v. Inspecting Assistant Commissioner of Income-tax [1967] 64 I.T.R. 669, K. K. Mathew, J. (as he then was), negatived a similar argument of violation of Article 20(1) of the Constitution with reference to the amendment made in Section 271 of the Income-tax Act, 1961, providing for imposition of penalty under that Act. While repelling the contention, Mathew, J., observed as follows: ;
Although the concealment of the particulars of the income was made an offence under Section 52 of the repealed Act and is also made an offence under Section 277 of the Act, I cannot say that the penalty imposed under Section 28 of the repealed Act or under Section 271 of the Act was or is imposed on the basis that it was or is an offence. For the offence punishment was or is prescribed such as imprisonment, fine or both. The imposition of penalty on the basis of an act or omission by an assessee is not because the act or omission constitutes an offence, but because that act or omission would constitute an attempt at evasion. Therefore penalty is exacted not because an act or omission is an offence but because it is an attempt at evasion of tax on the part of the assessee. Article 20(1) of the Constitution can have no application to a case where a penalty is imposed not as punishment for an offence but for some other collateral purpose. A heavier penalty for failure to pay tax would not have attracted the application of the corresponding article of the Constitution of the United States : see Banker’s Trust Co. v. Blodgett 260 U.S. 647. In that case, in answer to the contention that to reach into the past and provide greater punishment than what the law did when the crime was committed incurred the constitutional prohibition of an ex post facto law, the court said :
‘The penalty of the statute was not in punishment of a crime, and it is only to such that the constitutional prohibition applies.’ So, I take the view that, even assuming that the penalty has been enhanced under the Act, that would not attract the constitutional inhibition of Article 20(1) because the penalty is imposed not as punishment for the commission of an offence, even though the act for which the penalty is imposed is an offence liable to be punished. I, therefore, overrule this contention of the learned Advocate-General.
Similar was the view taken by a Full Bench of the Allahabad High Court in Raghunandan Prasad Mohan Lal v. Income-tax Appellate Tribunal [1970] 75 I.T.R. 741 (F.B.), with respect to penalty proceedings under the Income-tax Act, 1961, and it was held that Article 20 of the Constitution contemplates proceedings of the nature of criminal proceedings and the prosecution in this context means an initiation of proceedings of a criminal nature; and that the penalties imposed under the Income-tax Act cannot be regarded as punishment awarded for an offence. No decision of any court taking the contrary view and holding that Article 20 Of the Constitution is attracted to a provision providing for imposition of penalty under a fiscal law has been cited before us. With respect, we concur with the view taken by the Kerala and Allahabad High Courts which finds support from the above-quoted decision of the Supreme Court pointing out that imposition of penalty under a fiscal law is of the nature of recovery of additional tax only.
Applicability of Article 20 on the penalty imposed under Taxation Laws-Judgement in favour of the fact that penalty under Taxation statutes are also covered by Article 20
Reference-1- In the case of acts amounting to crimes the punishment to be imposed cannot be enhanced at all under our Constitution by any subsequent legislation by reason of Article 20 (1) of the Constitution which declares that no person shall 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-Commissioner Of Wealth Tax, … vs Suresh Seth on 7 April, 1981 Equivalent citations: 1981 AIR 1106, 1981 SCR (3) 419
A liability in law ordinarily arises out of an act of commission or an act of omission. When a person does an act which law prohibits him from doing it and attaches a penalty for doing it, he is stated to have committed an act of commission which amounts to a wrong in the eye of law. Similarly, when a person omits to do an act which is required by law to be performed by him and attaches a penalty for such omission, he is said to have committed an act of omission which is also a wrong in the eye of law. Ordinarily a wrongful act or failure to perform an act required by law to be done becomes a completed act of commission or omission, as the case may be, as soon as the wrongful act is committed in the former case and when the time prescribed by law to perform an act expires in the latter case and the liability arising therefrom gets fastened as soon as the act of commission or of omission is completed. The extent of that liability is ordinarily measured according to the law in force at the time of such completion. In the case of acts amounting to crimes the punishment to be imposed cannot be enhanced at all under our Constitution by any subsequent legislation by reason of Article 20 (1) of the Constitution which declares that no person shall 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.
Reference-2-Maya Rani Punj vs Commissioner Of Income Tax, Delhi on 11 December, 1985 Equivalent citations: 1986 AIR 293, 1985 SCR Supl. (3) 827
This was a decision wherein the bench held that the final decision regarding the continuing default decided in the Commissioner Of Wealth Tax, … vs Suresh Seth was not correct in law and held that
We are inclined to agree with counsel for the Revenue that the conclusion reached in Suresh Seth’s case is contrary to law. Jain Brother’s case was not referred to all in Suresh Seth’s case.
However, regarding the applicability of Article 20 of the constitution of India, it was observed that there can be no dispute regarding the conclusion reached for applicability of Article 20 of Constitution of India.
Reference-3-Moreover, as is clear from the decision of the Supreme Court in the case of Commissioner of Wealth-tax, Amritsar v. Suresh Seth, the question whether the liability imposed is civil or criminal would not make any difference to the application of the principles laid down by the Supreme Court in that case-Commissioner Of Sales Tax, … vs Rajendra Motors on 13 December, 1984 Equivalent citations: 1985 59 STC 155 Bom
In view of this, it appears clear to us that it is the provisions of sub-section (3) of section 36 of the Bombay Sales Tax Act, as it stood on that day, namely, 23rd April, 1973 which were applicable and the penalty had to be calculated at the rates as provided in sub-section (3) of section 36 as on that date. In this connection, it was urged by Mr. Jetly that although sub-section (3) of section 36 provided for a penalty, it was a penalty under a taxing statute and was not in the nature of a penalty under criminal law. In support of this contention, Mr. Jetly relied on the observations of the Supreme Court in Shiv Dutt Rai Fateh Chand v. Union of India, where it has been observed that the penalty imposed by the sales tax authorities is only a civil liability, though penal in character. In the first place, it must be remembered that this observation was made in connection with the question as to whether a penalty imposed by a sales tax authority can be equated with a penalty as contemplated under article 20(1) of the Constitution of India. Moreover, as is clear from the decision of the Supreme Court in the case of Commissioner of Wealth-tax, Amritsar v. Suresh Seth , the question whether the liability imposed is civil or criminal would not make any difference to the application of the principles laid down by the Supreme Court in that case. The principles laid down by the Supreme Court clearly apply to liabilities for civil wrongs as well as liabilities for criminal acts. In the present case it is clear, and no contrary argument has been advanced before us, that on the language of sub-section (3) of section 36 that is nothing to show that the penalty imposed was sought to be made retrospectively effective. Nor is there any necessary implication which would lead to this result. Conclusion-However, it seems that the issue which stand as on date is inclined in favour of applicability of Article 20(1) in respect of criminal offences and not in respect of civil liabilities as imposition of penalty under a fiscal law requiring payment of an extra sum of money is in reality a requirement of an additional tax imposed upon a person in view of his dishonesty and contumacious conduct and the nature of penalty which is in reality only the requirement to pay additional tax under a fiscal law shows that the retrospective operation of a statutory provision imposing penalty under a fiscal law cannot attract the prohibition contained in Clause (1) of Article 20 of the Constitution Of India.
