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Protection Against Self-Incrimination: A Judicial Perspective

Article 20 of the Constitution of India is divided into 3 clauses. The 3 clauses individually deal with ex post facto laws, double jeopardy and the rights of an accused against self-incrimination.

What we must first understand is the reason that the Constitution makers went ahead and inserted these three specific clauses in the constitution, when it could have been easily put in some or the other law. The idea is that when a person is being tried in a court of law especially in criminal cases i.e. when the State is the prosecutor, he is already at a very disadvantageous position and the balances are heavily tilted in favor of the State. In such a case these few basic rights, the accused should be given an access to so as to try to bring about a balance between the sides.

The interesting thing to note with regards to Article 20 is that these principles are not unique to the Indian Constitution. These are also recognized in the constitutions of most of the civilized states of the world and has also seen recognition in the Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights.

Clause 3 of Article 20 of the Indian Constitution reads, "No person accused of any offence shall be compelled to be a witness against himself."
So, in simple words, clause 3 of Article 20 talks about the right against self-incrimination that any person accused of an offence in the Union of India, enjoys.

This particular right against self-incrimination is not unique to the Constitution of India. It was in fact, a part and parcel of the common law system which later came to be adopted by the American Criminal System, from where it made its way to the American Constitution.

Following are the features of Article 20(3) vis a vis right against Self-incrimination:

  1. That a person accused of any offence would be presumed to be innocent unless proven guilty
  2. The burden of proving the accused guilty, lies on the prosecution.
  3. The accused is not needed to make any statement against his own will.

The logic behind this right against self-incrimination arises from the fact that if compulsory examination were to be permitted then the use of force by the authority to make an accused confess something, would be rampant. This right thus maintains, human privacy and the civilized standards of criminal law.

If we were to look at the components which make up clause 3 of Article 20, we would find 3 such components. Firstly, it refers to the right pertaining to a person accused of an offence. Secondly, it talks about the protection against the compulsion to be a witness and lastly it talks about the protection against compulsion to give evidence against himself. All these 3 components should co-exist for the privilege of right against self-incrimination.

As far as the jurisprudence on this subject is concerned, we see a wavering attitude taken by the Supreme Court which revolves around the fact that there has been a great dearth in the Constitutional Assembly debates on this particular issue. Also, it must be noted that the constitution makers chose to use pretty narrow words in this clause. Hence, the entire responsibility of developing the jurisprudence on this particular topic lay on the shoulders of the courts.

The first case that we shall be dealing with on this topic is the famous case of State of Bombay vs Kathi Kalu Oghad. (1961 AIR 1808). The Question before the 11-judge bench was whether Art 20(3) is violated when the accused is asked to give his handwriting, thumb impression, fingerprint, palmprint etc.

The Court says that the interpretation of this question would depend upon the interpretation of the phrase; "to be a witness". The court in this regard says that Article 20(3) protects a person who is accused of an offence and not those who are questioned as witness. The court also says that Article 20(3) is not violated by asking to give fingerprints, handwriting etc.

The court says that protection under Article 20(3) arises only when information given by the accused is from his personal knowledge. It says that something which would change the state of affairs in a given case, given from the accused's own will, would fall under the ambit of protection under 20(3). In this particular case, handwritings, fingerprints etc. would not change the state of affairs and hence it would not invoke protection under Article 20(3).

After this judgement, the court has been somewhat consistent as to what it would consider as violative of Article 20(3). It lays down that when an accused is told to stand up and show his face for identification, it would not be considered to be violative of Article 20(3). Similarly, compulsory collection of urine and blood samples would also not fall under this ambit.

One question that arise from the bare reading of the clause is what was meant by compulsion. For this, the court says, that compulsion would mean duress or a physical objective act. Normally it would not include the state of mind except when the mind has been so conditioned by some external process so as to render the making of the statement involuntary.

In this regard, it must be noted that mere presence in police custody does attach with itself the theory of compulsion but where the interrogation process of the State uses force then the theory of compulsion comes into the picture. This concept of compulsion has undergone a significant change over time with a much more liberal approach been shown now by the courts.

In the case of Nandini Satpathy vs P.L. Dani (AIR 1978 SC 1025), Justice Krishnaiyer has given an expansive definition of a compelled testimony. According to him, it is evidence procured not merely by physical threat or violence but also by psychic torture, atmospheric pressure, environmental concerns, tiring interrogative techniques, overbearing and intimidator methods and alike. Any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial applied by the police to obtain information from the accused, strongly suggestive of guilt, is compulsion.

Clause 3 of Article 20 does not necessarily apply to pre-trial stages. However, this case sought to introduce it relying upon the landmark American case of Miranda vs Arizona, which led to the famous Miranda rights.

With the development of Science and Technology, there has been a growth in the various interrogative techniques used by the police. Some of these new techniques include the Narco test and the BEEP test. The Constitutional validity of such tests came to be challenged in the various High Courts of the country. Interestingly enough, the Gujarat High Court, the Bombay High Court and the Kerala High Court, all upheld the validity of these tests.

The Supreme Court however overturned these decisions given by the various High Courts in the case of Selvi vs State of Karnataka (AIR 2010 SC 1974). It held that such methods of interrogation are unconstitutional vis a vis Article 21. It has relied on the concept of intersection of Fundamental Rights which was proposed by the Supreme Court in the case of RC Cooper vs Union of India (1970 AIR 564) which laid down the concept of validity on the grounds of touchstone of Article 21.

This case also brought in the concept of mental privacy and informational self determination which further made the compulsory administration of these tests absolutely unconditional and a ground for the accused to invoke defense under Article 20(3).

One of the latest cases that should be mentioned vis a vis Article 20(3) is the case of Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra (2012 AIR SC 3565), the case of the terrorist caught alive in the 26/11 Mumbai terror attacks. The Supreme Court in this case laid down that right against self-incrimination under Article 20(3) does not exclude any voluntary statements made in exercise of free will and volition.

Furthermore, in the case of Balasaheb vs State of Maharashtra (AIR 2011 SC 304), the Supreme Court laid down that for invoking constitutional rights under Art 20(3), a formal accusation against the person claiming the protection must exist.

With that we see how the right against self-incrimination has been interpreted by the Indian judiciary over the course of time.

Written By: Mr.Saikat Mukherjee, A 3rd year BA LLB Student at Symbiosis Law School, Nagpur.
Email � [email protected]

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