This Article is written by Priyasha ( a graduate B.A.LL.B(Hons.) from National Law University, Visakhapatnam)
Sometimes we read specific provisions of our Constitution and get overwhelmed with the might of such provisions; this happens especially while reading the Part III provisions. But, often it so happens that we get to hear certain events, hearing which we would outrightly hold “this is unconstitutional”, but, only later to acknowledge that the court has held it constitutional. The words to follow are the exposition of a law student, who is in awe of the nature of the Constitution during his first year of study, gets to understand the reality (though very limited) of the Constitution of India, during the course of his second year.
The different provisions contained in part III of the Constitution of India (hereinafter the Constitution) applies to different entities. Article 20 of the Constitution applies to “person”, which when interpreted in the light of section 3(42) of the General Clauses Act, 1897 includes “any company or association or body of individuals, whether incorporated or not”. Thus, article 20 of the Constitution applies to any person, including a citizen, a foreigner, and also to non-persons like organisations (including a political party), associations etc.
A fair reading article 20(1) of the Constitution would give us a picture that the state is prohibited from making a prosecution upon any person, for any act, for alleged infringement of a law which didn’t exist at the time of carrying out the act. One would consider that the whole idea of this provision is to prevent the State from abusing its prosecuting powers by making retrospective acts which would make an act, an offence, which at the time of carrying out the offence was not an offence at all. One would also take as a corollary of this statement as; one shall be prosecuted for the act which was an offence at the time of the carrying out the act. This was my understanding then, but two incidents happened that made me wonder about the integrity of this understanding of the provision.
The first event is the act of then Congress government (UPA I) to bring an amendment to the Parliament (Prevention of disqualification) Act 1959 vide Parliament (Prevention of Disqualification) Amendment Act, 2006 in order to bring a retrospective change regarding the office of profit disqualification mandated under Article 102(1)(a). The effect of this retrospective amendment is that around 55 members of the parliament who indeed were liable to be disqualified for holding the office of profit were saved. This was challenged under Article 14 of the Constitution in the Supreme Court of India. The three-judge bench which decided over this case held that the parliament is empowered to make such legislation, and hence the amendment is valid. One, Jaya Bachchan who was disqualified before this amendment was brought in, is the stark contrast that I wish to bring here in the background of the above event and article 20(1).
The next event starts with the judgement of the Delhi High Court in the case of ‘Association for Democratic Reforms & Anr. v. Union of India & Ors’, where it held that the donations taken by the two parties namely, the Congress and BJP, from certain companies as illegal under Foreign Contribution (Regulation) Act (hereinafter FCRA). As a consequence, the companies, as well as the political parties, faced serious criminal charges as well as penalties. The court further directed the Election Commission and the Ministry of Home Affairs to proceed against them and take actions within six months from the date of the judgement. But both the above bodies didn’t take any credible actions; they just made the time to pass way beyond given by the court. These delaying tactics paved the way for the Centre to bring an amendment to the FCRA, 2010 vide the Finance Act, 2016 in order to make retrospective changes in the former act so that both the donations taken by the two political parties no longer remain illegal. But this disgrace of an elected government didn’t end there as it was again forced to bring another amendment, this time to the FCRA, 1967 wide another Finance Act. This was because the earlier amendment made by the government only nullified the illegality that arose due to the FCRA 2010. However, the illegality that was there due to FCRA, 1967 still persisted.
Other crucial vis-a-vis disgraceful information regarding this matter is that the bringing of both the amendments were without any discussion and also without any consent of the Rajya Sabha being materially needed (since they were brought as a Finance Bill). Also, since the government needed a suitable time to bring a Finance Act, they went on an appeal and dodged any contempt proceedings. It then by itself withdrew the appeal and then brought the amendments. In between, a petitioner is a common man, or a common organisation was thrown into initiating various proceedings against the non-enforcement of the order of the Delhi High Court.
Now let us leave the double jeopardy part of Article 20, i.e. 20(2) and move to Article 20(3). This provision of the Constitution prohibits self-incrimination; that is, no one would be compelled to be a witness against himself. This prohibition from self-incrimination invalidates confessions made before the police and telephonic interceptions to be admissible as evidence. But there are certain acts such as the Gujarat Control of Terrorism and Organised Crime Act, 2015 under which the confessions made before the police officer and telephonic interceptions are made admissible as evidence. These acts blatantly violate Article 20(3) but the Apex Court time and again ignored from holding them as unconstitutional. This position of the court that is “…..scope for misuse doesn’t make a legislation unconstitutional (emphasis supplied)”, is sort of, due to the increased incapacity of the police force to get evidence in highly technologically advanced crime space. Thus clearly a tradeoff being made with the rights of the people for social gain, something for which there exists no credible evidence but for otherwise.
The above exposition shows how two provisions of the Constitution changed their colours, something very diametrical to their inherent nature. Certain questions arise: How can a government tinker with the law of the land for its own whims and wishes, thus giving undue advantages to certain classes of people over the other? (referring to Article 20(1)), How can a common human being stand against the brutal and vicious police actions? (referring article 20(3))? Will the Constitution of India stay relevant in these turbulent times? I honestly hope times will change, and some good people will come to power and will strive to make the dreams highlighted in the Constitution, a reality. But, for now, I only have the below quote;
 Article 367(1) of the Constitution of India instructs us to use the General Clauses Act, 1897 in cases where definitions given under article 372 doesn’t suffice.
Article 367. (1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.
 Consumer Education and Research Society vs.Union of India (UOI) and Ors. (2009) 9 SCC 648
Mrs Jaya Bachchan, who was disqualified under article 102(1)(a) of the Constitution, challenged the same before the Supreme Court, but the court held she could not be protected. Jaya Bachchan vs. Union of India And Ors. (Supreme Court) (Writ Petition (Civil) No. 199 of 2006) (Date of Judgement: 08/05/2006)
W.P.(C) 131/2013 (Delhi High) (Date of Judgement: 28/03/2014)
Katar Singh vs Union of India (1994) 3 SCC 569. The ratio of this judgement is sort of similar in other instances where challenges to Anti-Terror legislation were brought before the Supreme Court.