Illustration Question Set
1. The first clause in Article 20 of the Constitution prohibits retroactive criminal legislation; a person cannot
be convicted for an offence which was not an offence at the time at which it was committed. The second
protection in Article 20 is against double jeopardy and provides that no person shall be ‘prosecuted and
punished for the same offence more than once’. The third guarantee in Article 20 is against
self-incrimination, or compelling a person to be a witness against herself. In Kathi Kalu Oghad (1961), the
Supreme Court held that the prohibition against compelling a person to be a witness against herself
related to the production of information based on personal knowledge (also called “testimonial evidence”),
but did not extend to protection of physical evidence like a writing sample or a thumb impression (also
called “physical evidence”).
But can all situations neatly fit this distinction? A recent case, Selvi (2010), provides a fascinating
opportunity to revisit this distinction in light of new technologies. The case saw a challenge to the
involuntary administration of narco-analysis, the polygraph test, and the Brain Electrical Activation Profile
(BEAP) test. Narco-analysis involves the consumption of sodium pentathol, which lowers inhibitions and
takes the subject into a trance, inducing her to converse casually. The other two tests detect physiological
responses and brain activity, respectively, and estimate the subject’s familiarity with information involving
a crime, through which conclusions are drawn.
[Extracted, with edits and revisions, from The Indian Constitution, by Madhav Khosla, Oxford University Press, 2012.]
Answer the following questions assuming that the decision in Kathi Kalu Oghad, as set out in the passage above, is valid law:
1.1 Mahmood Kaskar resided in the city of Mumbai, and was long suspected of having committed several offences, including smuggling. Kaskar came across a police check-post on the road on 15 December 2019, and, afraid that the police would find the contraband that he had hidden in the trunk of his car, he drove through the check-post instead of stopping. In doing so, he smashed his
car through the barricades at the check-post, and a piece from the barricades flew a few feet away and injured a policeman manning the check-post. Kaskar was later caught by the police, and charged with the offence of obstructing justice, which the police claimed he
did by crashing through the check-post. Kaskar was acquitted of this charge, since the police were not able to produce adequate evidence before the court. Some months later, the police, bent on teaching Kaskar a lesson, filed charges of injuring a police officer on duty against Kaskar. When Kaskar
was convicted, he filed an appeal claiming that the decision violated the protection against double jeopardy in Article 20. Will Kaskar succeed?
(a)No, since the second charge filed against Kaskar was in relation to a different offence than the first one.
(b)Yes, since he had already been prosecuted for crashing through the barricades and could not be prosecuted for the same actions again.
(c)Yes, since he had already been acquitted the first time charges were filed against him.
(d)No, since he was long suspected of having committed several offences.
(Answer: (a))
Rationale:
The correct answer is (a) - no, since the second charge filed against Kaskar was in relation to a different offence than the first one. The passage tells us that the protection against
double jeopardy is against a person being ‘prosecuted and punished for the same offence more than once’.
Since Kaskar was being prosecuted for a different offence the second time (that of injuring a police officer on duty) than the first time (that of obstructing justice), the protection against double
jeopardy would not apply in this case. Since the second prosecution involved a different offence, options (b) and (c) cannot be the correct answer. Option (d) is irrelevant to the question, and so, cannot be the correct answer.
1.2 Sometime after the two prosecutions mentioned in the previous question, the police manage to recover CCTV footage from the area near the place where the police check-post was, and filed fresh charges of obstructing justice against Kaskar for crashing through the check-post. They claim that the CCTV footage would help them win the case
this time. Kaskar claims that this fresh, third trial, violates his protection against double jeopardy in Article 20 of the Constitution. Will he succeed?
(a)Yes, since Kaskar is a citizen of India and is protected under Article 20 of the Constitution.
(b)No, since the police were able to bring fresh evidence before the court in this new trial.
(c)Yes, since he had already been prosecuted for the offence of obstructing justice and was acquitted.
(d)No, since he was prosecuted but not punished for the same offence in the first trial.
(Answer: (d))
Rationale:
The correct answer is (d) - no, since he was prosecuted but not punished for the same offence in the first trial. The protection under Article 20 is against
a person being ‘prosecuted and punished for the same offence more than once’. Since Kaskar had been prosecuted, but not punished in the
first trial, he would not have the advantage of this protection under Article 20. For the same reason, (c) cannot be the correct answer. While options (a) and (b) may be true, they do not address the issue of whether the
protection under Article 20 applies in this third trial, and so, neither (a) nor (b) can be the correct answer.
1.3 Concerned at the increasing number of instances of rash driving in Mumbai, the legislature passes a law on 12 January 2020, making rash driving a criminal offence punishable with three months’ imprisonment. The police, who are hell-bent on punishing Kaskar by now, file fresh charges and initiate a fourth case against Kaskar, claiming
that his act of driving through the police check-post constituted rash driving. Kaskar now claims that this fourth trial violates the first clause of Article 20. Will the police succeed in this fourth trial?
(a)Yes, since Kaskar had injured a policeman when he drove through the check-post.
(b)No, since driving through a check-post does not constitute rash driving.
(c)No, since rash driving was not an offence at the time Kaskar drove through the police check-post.
(d)Yes, since Kaskar had been prosecuted for different offences in the previous three trials.
(Answer: (c))
Rationale:
The correct answer is (c) – no, since rash driving was not an offence at the time Kaskar drove through the police check-post. The first clause of Article 20 provides that “a
person cannot be convicted for an offence which was not an offence at the time at which it was committed”. Since rash driving
was not an offence on 15 December 2019 when Kaskar drove through the check-post, he cannot be punished for having committed that offence. While options (a) and (b) may or may not be true, they do not address the question of whether Kaskar’s
rights under the first clause of Article 20 had been violated, and so, neither (a) nor (b) can be the correct answer. Option (d) is irrelevant to the question – it addresses the issue of double jeopardy rather than the
protection under the first clause of Article 20, and so, (d) cannot be the correct answer.
1.4 While he was in custody, the police decided to investigate whether Kaskar was involved in the instances of smuggling that he was suspected of having committed. They asked him to produce a DNA sample that they could use to compare against the
evidence they obtained from a boat suspected to have been used in such smuggling activities. Kaskar refused, claiming that forcing him to provide a DNA sample would violate his protection against self-incrimination under Article 20. Can the police force Kaskar to provide the DNA sample?
(a)Yes, since DNA samples amount to physical evidence, and not testimonial evidence.
(b)Yes, since smuggling is a serious offence, and Kaskar was already suspected of being involved in it.
(c)No, since producing DNA samples would amount to compelling Kaskar to be a witness against himself.
(d)No, since Kaskar had not been charged with smuggling at the time he was asked to produce the sample.
(Answer: (a))
Rationale:
The correct answer is (a) – yes, since DNA samples amount to physical evidence, and not testimonial evidence. The decision in Kathu Kalu Oghad clarifies that the protection against self-incrimination under Article 20 extends to “the
production of information based on personal knowledge” (testimonial evidence) but not ‘physical evidence’ like “a writing sample or a thumb impression”. For this reason, (c) cannot
be the correct answer. Options (b) and (d) may be true, but they do not address the question, and so, neither can be the correct answer.
1.5 Assuming that the Supreme Court was bound to follow the decision in Kathu Kalu Oghad while deciding Selvi, what decision should the Supreme Court have taken in Selvi as regards the forcible
administration of narco-analysis on a person?
(a)It would be constitutional, since it is a new technology, and is different from other techniques of extracting evidence like fingerprints or thumb impressions.
(b)It would be unconstitutional, since it would amount to forcibly extracting testimonial evidence.
(c)It would be constitutional, since it only has a physical effect, and so, would amount to extracting physical evidence.
(d)It would be unconstitutional, since it puts a person in an abnormal state of mind where they cannot remember their rights under Article 20.
(Answer: (b))
Rationale:
The correct answer is (b) – it would be unconstitutional, since it would amount to forcibly extracting testimonial evidence. As the passage tells us, the administration of sodium penthathol would lower a person’s inhibitions, and take them into a trance, inducing them to
converse casually – as a result of which, they may provide information based on personal knowledge (testimonial evidence). While it may be a new technology, and different from thumb impressions or handwriting samples, the forcible use of narco-analysis
may result in the extraction of testimonial evidence, and so, (a) cannot be the correct answer. While it may have a physical effect, the end result of forcible administration of narco-analysis would be the extraction of testimonial evidence, and so, (c) cannot be
the correct answer. While (d) may be true, it does not address the issue of whether the forcible administration of narco-analysis violates the protection against self-incrimination under Article 20, and so, (d) cannot be the correct answer.