August 21, 2023

DOUBLE JEOPARDY IN INDIA- AN ANALYSIS

 

This article has been written by Payodhi Daschaudhuri of Semester 4, student of Adamas University, pursuing BA LLB. 

 

INTRODUCTION

Double jeopardy is a legal concept that prevents an individual from being tried or punished for the same offense twice. It is a fundamental principle of criminal law that protects individuals from harassment and abuse by the state. In India, double jeopardy is enshrined in the Constitution and the CrimAinal Procedure Code, and it has significant implications for the country’s legal system. The notion of double jeopardy has evolved through time in India’s legal system, which has a long and complex history. Article 20(2) of the Indian Constitution provides protection against double jeopardy, stating that “no individual shall be tried and punished for the same offence more than once.” This rule is strengthened by the Criminal Procedure Code, which governs criminal trials in India. However, in India, the meaning and implementation of double jeopardy has been the source of considerable dispute and controversy. Several high-profile cases have occurred in which persons have been prosecuted and convicted for the same offence twice, raising concerns about the efficiency of India’s legal structure governing double jeopardy. Double jeopardy is a core tenet of criminal law that protects individuals against governmental harassment and abuse. It prohibits an individual from being tried or penalised twice for the same offence, guaranteeing that they are not prosecuted or punished for the same behaviour. This principle is based on the premise that an individual’s basic human rights and dignity should not be violated by subjecting them to repeated punishment or double jeopardy.

As a result, a critical examination of double jeopardy in India is required to comprehend the strengths and shortcomings of the existing legislative framework. This analysis will look at the historical context and evolution of double jeopardy in India, the relevant provisions in the Constitution and Criminal Procedure Code, case law and judicial interpretations of double jeopardy in India, criticisms and debates about the current legal framework, comparisons with other countries, and potential areas for reform. By considering these aspects, we may acquire a better understanding of the role of double jeopardy in India’s legal system and its consequences for individual rights protection and justice administration.

 

HISTORICAL BACKGROUND

The origin of the term ‘double jeopardy’ can be traced from the Latin maxim Nemo bis punitur pro eodem delicto, which means that ‘no one should be punished for an offence more than once’. The term “double jeopardy” is derived from the common-law rule “Nemo debet bis vexari,” which means “a man must not be put in danger twice for the same offence.” In layman’s words, it means “punishment delivered more than once for the same offence.” The term “double jeopardy” is derived from the common-law rule “Nemo debet bis vexari,” which means “a man must not be put in danger twice for the same offence.” In layman’s words, it means “punishment delivered more than once for the same offence.” The notion of double jeopardy is centuries old, with origins in ancient Rome and Greece. With the adoption of the Magna Carta in the 13th century, the idea was first established in English law. The idea that no one may be punished twice for the same offence was established by the Magna Carta, which was eventually incorporated in common law. Since colonial times, the notion of double jeopardy has been recognised in India. The Indian Penal Code, adopted in 1860, had double jeopardy rules based on the English common law idea. Subsequently, when India was released from the shackles of colonialism, the essence of double jeopardy was incorporated in the constitution of India through Article 20(2). This clause makes it illegal to prosecute and punish the same individual for the same offence more than once. The Indian courts has had a considerable impact on how double jeopardy is interpreted and used in India. The Indian Supreme Court affirmed the notion of double jeopardy in the landmark case of K. M. Nanavati v. State of Maharashtra in 1961, ruling that an individual cannot be retried for the same offence after being acquitted. The court further highlighted that the prohibition on double jeopardy applies in cases where a conviction is reversed on appeal as well as cases where an acquittal is based on a technicality. Several high-profile cases in India have tested the idea of double jeopardy throughout the years. One such example was the 1993 Mumbai bombings, in which numerous people were prosecuted and convicted twice for the same act. The second trial was held under a new statute, and several of the defendants who had been acquitted in the first trial were convicted. This resulted in significant criticism of the court system and raised concerns about the efficiency of India’s safeguard against double jeopardy.

 

LEGAL FRAMEWORK OF DOUBLE JEOPARDY IN INDIA

The Indian Constitution and the Criminal Procedure Code form the foundation of the legal framework for double jeopardy (CrPC).

Article 20 of the Indian Constitution gives protection from double jeopardy (2). This clause makes it illegal to prosecute and punish the same individual for the same offence more than once. The protection applies whether an individual is acquitted or guilty of an offence, as well as when a conviction is reversed on appeal or review. The rule also precludes the introduction of self-incriminating evidence in later proceedings against an accused. The Criminal Procedure Code (CrPC) establishes the procedural framework for criminal proceedings in India and includes laws about double jeopardy. According to Section 300 of the CrPC, a person who has been tried and acquitted or convicted of a crime may not be prosecuted again for the same offence. According to Section 403 of the CrPC, a person who has been convicted or acquitted of a crime should not be prosecuted again for the same or any other offence based on the same circumstances.

Speaking about various judicial precedents through which the root of double jeopardy is strengthened in Indian Judiciary includes Union of India vs P.D. Yadav. The notion of double jeopardy, according to the courts, is embodied in the maxim, nemo debet bis vexari si constat curiae quod sit per una et eadem causa, which states that no one should be afflicted twice if it seems that it is for the same cause as it was held up in the afore-mentioned case. Only when the punishment is for the same offence can the law of double jeopardy be applied. The doctrine cannot be applied if the offences are distinct in nature, as stated in the case Leo Roy V. Superintendent District Jail, where the court stated that even though the person had been prosecuted under the Sea Customs Act, they could be prosecuted again under the IPC because there were two distinct charges and offences. In the case of Assistant Collector of Customs vs L.R. Malwani, the court determined that in order for double jeopardy to be relevant, the accused must have been prosecuted by a court with competent authority and the conviction or acquittal must be in effect. In the provided case, the court determined that the penalty imposed by the customs authority did not constitute prosecution and that the accused may be prosecuted in court, hence his argument of double jeopardy was denied. If the offence is continuing, the court stated in the case Mohammad Ali vs. Sri Ram Swaroop that each day represents a new violation and the accused might be punished for each one individually, and thus would not amount to double jeopardy.

 

CRITICISMS AND DEBATES

One critique of India’s double jeopardy legal structure is that it allows for retrials in certain instances, such as when new and crucial information is discovered after the initial trial. While this exemption is intended to guarantee that justice is served, it can also result in circumstances in which accused individuals are forced to multiple trials, as well as the stress and expense that comes with them. Furthermore, the exemption is not precisely defined, leaving opportunity for interpretation, and increasing the risk of misuse. The practise of plea bargaining is another issue connected to double jeopardy in India. While plea bargaining is customary in many nations, including the United States, it is not legal in India. This implies that accused people in India are unable to negotiate a plea bargain in exchange for a reduced sentence. As a result, accused individuals are more inclined to go to trial, even if they know they are guilty, if they have no other choices. Furthermore, the courts have construed the legal framework of double jeopardy in ways that are inconsistent with the ideals of justice and fairness. For example, in some situations, the courts have permitted a retrial of an accused individual on the same accusations following an acquittal, even though the previous trial was fair, and no new evidence was discovered. This can lead to accused individuals being harassed by the prosecution, which can lead to a collapse in public trust in the criminal justice system. To summarise, while the legal system of double jeopardy in India affords important protection to accused individuals, the notion has also been subject to criticism and debate. Policymakers and legal practitioners must address these concerns to guarantee that India’s criminal justice system is fair and just for all.

 

COMPARATIVE ANALYSIS ON DOUBLE JEOPARDY ACROSS THE GLOBE

While the basic concept of double jeopardy is similar across different countries, there are variations in the legal frameworks and the way in which the principle is applied. Below here is the comparative analysis between certain developed countries across the globe along with that of India:

  • UNITED STATES OF AMERICA: In the United States, the Fifth Amendment to the United States Constitution protects against double jeopardy. The prohibition on double jeopardy is broadly defined and extends to all criminal proceedings, including those in state and federal courts. The restriction against double jeopardy extends not just to retrials following acquittal, but also to retrials following conviction and mistrials due to a hung jury or other causes. Furthermore, the United States has a plea-bargaining system that permits accused individuals to negotiate a plea agreement in exchange for a lighter punishment.
  • UNITED KINGDOM: In recent years, the notion of double jeopardy has been dramatically revised in the United Kingdom. Prior to 2003, the law against double jeopardy in the United Kingdom was absolute, preventing all retrials. However, in 2003, the legislation was changed to allow for retrials in specific cases, for as when new and convincing evidence is discovered. Furthermore, the UK has a plea-bargaining procedure comparable to the US system.
  • CANADA: Section 11(h) of the Canadian Charter of Rights and Freedoms protects the principle of double jeopardy. Double jeopardy protection extends to all criminal processes and prohibits retrials following acquittal, conviction, or mistrial. There are, however, exceptions to the rule of double jeopardy, such as when an accused individual has been acquitted of a minor criminal and fresh information emerges suggesting they should have been prosecuted with a more serious offence.
  • AUSTRALIA: The notion of double jeopardy is preserved by common law in Australia and has been strengthened by the High Court of Australia. Double jeopardy protection extends to all criminal processes and prohibits retrials following acquittal, conviction, or mistrial. There are, however, exceptions to the rule against double jeopardy, such as when fresh and compelling information is discovered that was not accessible at the time of the initial trial.
  • INDIA: Article 20(2) of the Indian Constitution protects the principle of double jeopardy. Double jeopardy protection extends to all criminal processes and prohibits retrials following acquittal, conviction, or mistrial. There are, however, exceptions to the rule against double jeopardy, such as when new and significant information is discovered after the initial trial. Furthermore, India lacks a system of plea bargaining.

CONCLUSION

In conclusion, double jeopardy is a fundamental principle of criminal law in India, which is protected by Article 20(2) of the Indian Constitution. The protection against double jeopardy applies to all criminal proceedings and prevents retrials after acquittal, conviction, or a mistrial. However, there are exceptions to the rule against double jeopardy, such as when new and important evidence comes to light after the original trial. In recent years, the use of double jeopardy has been a source of discussion and criticism in India. Some claim that the exceptions to the rule against double jeopardy are overly wide and allow for judicial system misuse. Others say that the idea of double jeopardy is crucial for protecting individuals from governmental harassment and ensuring a fair trial. It is critical for policymakers, legal practitioners, and people in India to grasp the legal framework of double jeopardy and to engage in continuing conversations regarding its practical implementation. This will contribute to ensuring that India’s criminal justice system is fair and just for all, and that the concept of double jeopardy is enforced in a way that balances the interests of the accused and the state.

 

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