Right against Self-incrimination in India Authored By- Ankit Pranav & Dr. Vivek Kumar
Right
against Self-incrimination in India
Authored By- Ankit Pranav &
Dr. Vivek Kumar
Assistant Professor
Introduction
Self-incrimination
According
to Black’s Law Dictionary, “a declaration or an act that
occurs during an investigation where a person or witness incriminates
themselves either explicitly or implicitly is known as self-incrimination.”[1]
In
Simple words During criminal trial when a person who is accused of an offence
is compelled to become a witness against himself. During criminal proceeding a
person who is presumed to be guilty of crime has full right to talk
investigating officers and can share whatever necessay details regarding crime
to them but this can’t be forced to him during investigation by the officers on
him. He can’t be punished by officers under law for not speaking to them.
It can
be done in two ways direct and indirect. An example of direct self
incrimination can be that during an interrogation accused himself with any
external pressure or force discloses all the truth he knew regarding the matter
of case and vice versa.
Historical Background
It
originated in England and Wales. All countries around the globe have derived
this concept into there domestic law from English Common law. Origin of this
concept can be seen by this maxim “nemo tenetur seipsum accusare,” that “no man is bound to
accuse himself.” This maxim is one of the two different system
of law enforcement, accusatorial
and inquisitorial. In accusatorial system, preadted during
Henry II, community was first and government was second to proceed aginst the
alleged wrongdoer by examination by others and at that time examination of
victim was also done. Inquisitorial system
developed ecclesiastical courts, which basically compelled the wrongdoer to say
himself the wrong he has committed by forcing him to take oath of bible. We all
know that at that time people were following religion and church blindly.
During that time person was told to tell in depth of all things he knows about
the incident which led to this case. He was not informed about the charges
imposed against him due to which he is standing in the court. He was not even
told that whether he is a accused or witness in the case. It took a very long
time to understand that a person can’t accuse himself under oath in any
proceeding in equity or common court. Later many colonies of England
incorporated this concept in there laws like USA in federal bill of rights.
Madison gave the version as, “nor shall be compelled to be a witness against
himself” but house amendment inserted “in any criminal
case” in provision.
Present status
Right against Self-incrimination in India
Provision in constitution and law
Compulsion to give evidence
“against himself”
Indian ‘constitution talks about Self incrimation
under Article 20(3)
“No person accused of any offence
shall be compelled to be a witness against himself.”
Here, “to be a witness” is disobeying
observation or knowledge or information relating to relevant facts. Supreme
court 300 failed to determine scope of this article furnish evidence in context
of non verbal testimony.
The protection under Article 20(3) is
available only against the compulsion of accused to give evidence “against
himself”. But left to himself he may voluntarily wave his privilege by entering
into the witness-box or by giving evidence voluntarily on request. Request
implies no compulsion; therefore, evidence’ given on request is admissible against the person giving
it.[2]
Here protection is only available
against compulsion of accused to give evidence “against himself”. But it is
totally upon the discretion of accused to whether he/she want to give evidence
“against himself/herself” or not. It is totally left to him whether he/she
voluntary wave his/her privilege by entering the witness-box during trial or on
request giving evidence voluntary. Because by requesting someone one doesn’t
compel any person so in this case the evidence provided by the accused may on
request be used against him as the trial proceeds.
To apply protection under this
article it must be prooved that the accused was bound to speak a statement
which will lead to incriminating him. Compulsion means duress (duress means a
physical act and cannot be a state of mind) which also includes inducement, promising, threatening,
beating or imprisonating wife, parent or children of person. Under duress most
of human beings can be compelled to do or say anything or even compelled to be
a witness. This was appplied during the case State(Delhi Administration) v.
Jagjit Singh. Article 20(3) is not applicable on those accused during trial
who are not under any inducement, threat or promise while confesssing.
Protection offered under Article
20(3) are as follows:-
1. Defendant must be informed and made
understand by the authorites about his rights before recording his statement.
He should be told clearly that his statement can be used against him during
trial in future.
2. He should not be compelled to confess
anything in any way.
3. If the court thinks that there are
sufficient evidences and circumstances which prooves beyond reasonable doubt
that there were forceful means used to obtain defendant’s confession or
statement then court has full power to reject that statement.
CPC, 1908 provides defendant Right to
Remain Silent. There is one condition to it as the defendant must clearly speak
and express that he is using this right and will not answer any further
question.
In Nandini
Satpathy v. P. L. Dani[3] the Supreme Court has considerably
widened the scope of clause (3) of Article 20. The Court has held that the
prohibitive scope of Article 20(3) goes back to the stage of police
interrogation not commencing in court only. It extends to, and protects the
accused in regard to other offences -
pending or imminent – which may deter him from voluntary disclosure. The
phrase ‘compelled testimony’ must be read as evidence procured not merely by
physical threats or violence but by psychic (mental) torture, atmospheric
pressure, environmental coercion, tiring interrogatives, proximity, overbearing
and intimidatory methods and the like. Thus, compelled testimony is not limited
to physical torture or coercion, but extends also to techniques of
psychological interrogation which cause mental torture in a person subject to
such interrogation. In that case, the appellant was a former Chief Minister of
Orissa Certain charges of corruption were leveled against her and in the course
of inquiry she was called upon to attend at a police station and to answer
certain written questions. The appellant refused to answer questions and
claimed the protection of Article 20(3). She was prosecuted under Section 179,
I.P.C., for refusing to answer questions put by a lawful authority. According
to the Court, self incrimination is less that “relevant” and more than
“confessional”. Irrelevance is impermissible
relevance is licit, but when relevant questions are loaded with guilty
inference in the event of an answer being supplied, the tendency to incriminate
springs into existence. The accused person cannot be forced to answer questions
merely because the answers there to are not implicative when viewed in
isolation and confined to the particular case. He is entitled to keep his mouth
shut if the answer has a reasonable prospect of exposing him to guilt in some
other accusation, actual or imminent, even if the investigation is not which reference
to that. However, he is bound to answer where there is no clear tendency to
criminate. This means that the protection is available when police examines
that accused during investigation under Section 161 of the Cr.P.C.. Further,
the right ot silence is not limited to the case for which he is examined but
extends to the accused in regard to other offences pending or imminent which
may deter him from voluntary disclosure of criminatory matter.
In Mohd.
Dastgir v. State of Madras,[4] the
appellant went to the bungalow of Deputy Superintendent of Police to offer him
bribe in a closed envelope. The police officer on opening in found the envelope
containing currency notes. He threw it
at the face of the appellant who took it. Thereafter, the police officer asked
the appellant to handover the envelope containing the currency notes. The
appellant took out some currency notes from his pocket and placed it on the
table which was seized by the police officer. The appellant contended in appeal
before the Supreme Court that the currency notes should not be produced in
evidence as he was compelled by the police officer to give to him. The Supreme
Court held that the accused was not compelled to produce the notes as no duress
was applied on him to produce the notes. Moreover, the appellant was not an
‘accused’ at the time the currency notes were seized from him.
In Yusufali
v. State of Maharashtra,[5] a tape –
recorded statement made by the accused though made without knowledge of the
accused but without force or oppression was held to be admissible in evidence.
In V. S.
Kuttan Pillai v. Ram Krishnan,[6] the court
held that search of the premises occupied or in possession of person accused of
an offence or seizure of anything form there was not violative of Article 20(3)
of the Constitution. If any document is recovered as a result of search and
seizure it can be produced in the courts as an evidence against the accused as
he is not compelled to give witness against himself.
In Amrit
Singh v. State of Punjab[7] it has been
held that asking an accused of his hair for purpose of identification amounts
to testimonial compulsion. That accused has right to refuse to give specimen of
his hair for purpose of identification. He cannot be made witness against
himself in view of Art.
20(3) of the Constitution.
In India, Maneka Gandhi vs. Union of India
((1978) 1 SCC 248) held while considering Article 20(3), that the
right against self-incrimination should be construed with due regard for the
inter-relationship between rights, namely the various dimensions of the right
to personal liberty under Article 21, such as the right to fair trial and
substantive due process.
Narcoanalysis,
Polygraphy and Brain Finger Printing tests of accused-Violates Article 20(3).-
In Selvi v. State of Karnataka[8]
The accused
had challenged the validity of certain scientific techniques namely,
Narcoanalysis, Polygraphy and Brain Finger Printing (BEAP) tests without their
consent as violative of Article 20(3) of the Constitution. They argued that
these scientific techniques were softer alternatives to the regrettable use of
third degree methods by investigators and violated right against self
incrimination in Article 20(3) of the Constitution. The State argued that it
was desirable that crime should be efficiently investigated particularly sex
crimes as ordinary methods were not helpful in these cases. So the issue was
between ‘efficient investigation’ and ‘preservation of individual liberty’. A
three Judge Bench of the Supreme Court unanimously held – These tests are
testimonial compulsions and are prohibited by Article 20(3) of the
Constitution. These tests do not fall within the scope of expression “such
other tests” in Explanation of Section 53, Criminal Procedure Code. The
protection of self incrimination is available at the stage of investigation
also and it is also available to witnesses. In narcoanalysis test, a drug is
given to him so that he can divulge
important information. The drug is known as Sodicum Pentothal – Used or
introduced as general anesthesia in surgical operations. The Polygraphy and
Brain Finger Printing (BEAP) test is also known as the Wave Test. Electric
waves are introduced into the mind. The compulsory administration of the
narcoanalysis techniques constitutes cruel, inhuman or degrading treatment.
Article 21 of the Constitution disproves of involuntary testimony irrespective
of the nature and degree of coercion, threats fraud or inducement used to elict
the evidence. The popular means of the terms such a ‘torture and cruel’,
‘inhuman or degrading’ treatment are associated with gory images of blood
letting and broken bones. A forcible invasion into a person’s mental process is
also an affront to human dignity and liberty often with grave and long and
lasting consequences. The international Conventions though not ratified by
Parliament are of persuasive value since they represent an involving
international consensus on the issue. – Convention Against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (1984) – Regarding the
contention raised by the respondents that compelling interests demands such
techniques for investigation of crimes in future the Court held – It is the
function of the legislature to consider and make proper law on the issue. But
if such matter comes before the Court, the Court shall interpret the mandate of
the constitutional provisions available to the citizens and apply in their
favour. The Court laid down the following guidelines for these tests:
(1)
No Lie Detector Tests should be administered except on
the basis of consent of the accused. An option should be given to the accused
whether he wishes to avail such test.
(2)
If the accused volunteers for a Lie Detector Test, he
should be given access to a lawyer and physical, emotional and legal
implications of such a test should be explained to him by the police and his
lawyer.
(3)
The consent should be recorded by a Judicial
Magistrate.
(4)
During the hearing before the Magistrate, the person
alleged to have agreed should be duly represented by a lawyer.
(5)
At the hearing the person in question should also be
told in clear terms that the statement that if made shall not be a confidential
statement to the Magistrate but will have the statement made to the police.
(6)
The Magistrate shall consider all factors relating to
the detention including the length of detention and the nature of the
interrogation.
(7)
The actual recording the the Lie Detector shall be
done by an independent agency (such as a hospital) and conducted in the
presence of a lawyer.
(8)
A full medical and factual narration of the manner of
the information received must be taken on record.
Article 20(3) is based on legal maxim “nemo teneteur prodre accussare seipsum”, which means “No man is obliged to be a witness against
himself.”
In India, Supreme Court has tried to
enlarge the interpretation of this section by allowing oral and documentary
evidence as well. This
prohibition cannot be applied in cases where ‘an object or document is searched
or seized from the possession of the accused.
This provision is not applied on
thumb-impression or specimen signature.
Features of Article 20(3)
1.
Protecton to
a Person accused of an offence
This Article gives the accused protection not only during
the trial in court or enquiry but from the time charge has been framed agist
him by any means like filing of FIR, complaint under Magitrate, formal
complaint etc. It can extend to other matters which are running simultaneously
in other courts for other offences even.
2. Compulsion
to be a witness is prevented’
Compulsion means duress (duress means
a physical act and cannot be a state of mind)
which also includes threatening, beating or imprisonating wife, parent
or children of person. Under duress most of human beings can be compelled to do
or say anything or even compelled to be a witness. This was appplied during the
case State(Delhi Administration) v. Jagjit Singh.
1.
Prevents
Compulsion resulting in giving evidence against oneself
Thumb impressions or specimen for writings or exposing body
for the purpose of identification an accused can be compelled to submit them
during investigation.
If the accused is voluntary
producing documentary evidence or oral statement which is incrimatory in nature
then this right will be waived off.
Most
democartic countires in world has right to remain silent and right to legal
counsel but there law varies from country to country.
For
example European countries have there own set of laws in accordance with EU
guidelines.
Right against Self-incrimination in other countries
U.S.A.
The fifth amendment of the U.S. Constitution
provides that- ‘No person shall be
compelled in any criminal case, to be a witness against himself’
This right is applicale on states by fourteenth
amendment.
The above privilege has been given a wide connotation
after being judicially interpreted in many cases. In both civil and criminal
proccedings these privileges against self-incrimination can be applied to
witnesses and parties. It covers oral and documentary evidence and extends to ‘all disclosures including answers which by
themselves support a criminal conviction or furnish a link in the chain of
evidence needed’ for a conviction.
Britain
As the country is following
common law, they have made this a basic principle that an accused person of an
offence can’t be compelled to discover documents or objects which can
incriminate him. Except few cases no witness, whether from party or stranger is
compelled to answer any question or produce document, which may lead to
exposing of witness or spouse of witness, to any criminal charge, penalty or
forfeiture. The objective behind this is to encourage common people to come
forward along with evidence in courts and to protect these people as much as
possible from injury or annoyance in the consequence.
Ingredients of Article 20(3)
The person accused of an
offence
The privilege provided under this
article is only for person who are presumed as to be accused by the court. In
case of India, this can be done by simply filing an FIR or formal complaint
against a person accusing him for certain offence. It is not necessary that
there should be a case in court. Article 20(3) talks only on making of such
formal accusation. It is important to note a point here that if a person made
statement that he is not an accused but after trial he is found guilty then he
can’t claim the protection. Article 20(3) not applies against a government
servant since there is no accusation of any offence to departmental inquiries
into alllegations.
In M.P. Sharma v. Satish Chandra, it
was held that a person whose name is mentioned in the first information report
as an accused can claim protection under Article 20(3). The privilege against self-incrimination
is available at both trial and pre-trial stage i.e. when the police
investigation is going on and the person is regarded as an accused, or even if
his name is not mentioned in the FIR as an accused.
In the
case of Balasaheb v. State of Maharashtra, it
was held that a witness in a police case, who is also an accused in the
complaint case for the same incident, cannot claim absolute immunity from
testifying in the case. However, he may refuse to answer those questions which
tend to incriminate him.
Compulsion to be a witness
When narco-analysis test is used as a
technique for investigation, it many times leads to violation of the Human Rights.
In State of Bombay v. Kathi Kalu
Oghad, the court held
that it must be shown that the person was compelled to make a statement which
was likely to incriminate him. Compulsion is duress: it should be a physical
objective act and not a state of mind like beating, threatening, imprisonment
of wife, parent or child of a person. Art.20(3) does not apply if a person
makes a confession without any inducement or threat.
In the case of State (Delhi Administration) v.
Jagjit Singh, the court held that if an accused has been
granted pardon under section 306 of the Criminal Procedure
Code, he ceases to be an accused and becomes a witness for the prosecution
and his evidence cannot be used against him in other cases. Section 132 of
the Indian Evidence Act protects
a witness from being prosecuted on the basis of the information given by him in
a criminal proceeding which tends to incriminate him.
Compulsion resulting in giving evidence against himself
Thumb impressions or specimen for writings or exposing body for the
purpose of identification an accused can be compelled to submit them during
investigation. In Kathi Kalu’s case, it was held that it must be necessarily shown that the witness
was compelled to make a statement likely to incriminate him. Compulsion is an
essential ingredient but if a person makes a confession without any inducement,
threat or promise Article 20(3) does not apply. The accused may waive his right
against self-incrimination by voluntarily making an oral statement or producing
documentary evidence, incriminatory in nature.
In Amrit Singh v. State of Punjab, the accused had charges of rape and murder of an
eight year old girl. When the body of the deceased was discovered, some strands
of hair were found in the closed fist of the child. The Police wanted to
analyse the hair of the accused, but the accused refused to give the sample.
The court found the accused to be protected against self-incrimination, so he
had the right to refuse to give hair sample. But if the right against
self-incrimination is considered in such a broad manner, then it might lead to
misuse of this right by the accused.
In an
interesting case of A v. B, the divorce proceedings on the ground of adultery
were going on in the Delhi High Court. The Court allowed the paternity test of
the preserved foetus as it was no longer a part of the wife’s body. She was not
subjected to compulsion as the right against self-incrimination does not extend
to search and seizure of documents and any other object under a search warrant.
Narco-analysis Test vis-à-vis Self-Incrimination
It is still a matter of debate
that whether scientific technique like narco-analysis tests, brain mapping
test, etc should be considered violating the right of self-incrimation under
Article 20(3) for improving the investigation. In Gobind Singh v. State of Madhya Pradesh,
the Court held that the mental state of an individual comes under the ambit of
‘Right to Privacy’. Later, developments in this area observed that the
authority of the State to compel an individual to expose the parts of his life
which he wishes to keep to himself is ultra vires the Constitution as it is in
contravention of the rights guaranteed under Article 20(3) and 21.
This issue was brought before the Supreme Court in the
case of Selvi v. State of Karnataka,
the apex court rejected High
Court’s reliance on the utility, reliability and validity of narco analysis
test and other such tests as methods of criminal investigation. The Court found
that it is a requisite compulsion to force an individual to undergo
narco-analysis test, polygraph tests and brain-mapping. The answers given
during these tests are not consciously and voluntarily given, so the individual
is unable to decide whether or not to answer a question, hence it amounts to
testimonial compulsion and attracts protection under Article 20(3). The Court
stated that narco-analysis test is a cruel and inhuman treatment which violated
the right to privacy of an individual. That courts cannot permit administration
of narco-analysis test against the will of the individual except in cases where
it is necessary under public interest.
DNA Test and Article 20(3)
Right of Privacy and Right aginst self incrimintion of a
person is infringed when evidence based on DNA Test of a person is presented,
this is the reason why court’s hesitate before accepting these kind of
evidence. Under Article 21, after landmark judgement of case Justice K. S. Puttaswamy
(Retd) and Anr. v. UOI Right to Privacy is an
inherent right under Right to life and Personal Liberty. But in some cases
Supreme Court has held that the Right to Life and Personal Liberty is not
absolute and can be subject to certain restriction. In Kharak
Singh v. State of Uttar Pradesh, the apex court held that Right to Privacy is not
guaranteed under the Constitution. The courts have allowed DNA tests on certain
occasions to be used in an investigation for producing evidence.
In the case of Kanchan Bedi v. Gurpreet Singh Bedi,
the question arose on the parentage of the infant, and the mother filed an
application for conducting DNA test, to which the father opposed arguing that
his rights would be violated. The Court held that where the parentage of a
child is in question, directing a person to undergo a DNA Test does not amount
to a violation of fundamental rights. The Court relied on the judgment given
in Geeta Saha v. NCT of Delhi, where
the Division Bench ordered a DNA Test to be conducted on the foetus of the rape
victim.
Any Bill made on
self incrimination
Criminal
procedure identification Bill, 2022
1. This
act allows police and prison officers to collect certain identity related
information for example fingerprints, biological samples etc. ofconvicts which
are arrested due to an offence. These rules empower NCRB to state specific guidelines
for measurements, and handling, storage,
processing, matching, destruction and disposal of these records.
2. Authorised
police officer or prison officer, registered medical practitioner or any
skilled person may take measurement under this act.
Conclusion
Article 20(3) provides
accused protection against self incrimination and right to remain silent on the
matters which can lead to incrimination of himself only. This artilcle also
covers person who are being searched and seized, compelled to be a witness, an
accused or person who has no obligation to be a part of these procedures. Under
Article 20(3), a statement will not be protected if it is made on some finding.
An accused can’t be tortured or compelled in any way to extract information or
confession or no duress in any way according to law. In these cases Article
20(3) protects the accused’s rights. Only in extraordinary circumstances,
scientific techniques such as Narco-analysis tests,
polygraph analysis, etc should be used as it is hampering the provision of
Right to Privacy and Article 20(3).
Suggestion
In my personal opinion,
before applying these test I think humans have to go a long way of testing as
it should not have any short or long term medical including physical and mental
health effects. For rest of the time by the special permisision of court they
should be continue to be used in rarest of rare cases where court think it is
necessary to use.
Refrences
1. Book
1. Constitutional law of India by Dr. J
.N. Pandey
2. Indian Constitutional law by M P Jain
2. Journal
Lawjournals.org
3. Article
1. Karnatakajudiciary.kar.nic.in
2. Blogipleader.com
3. Byjus.com
4. Legalserviceindia.com
5. Ijlmh.com
Bibliography
1. Privacylibraray.ccgnlud.org
2. Main.sci.gov.in
3. En.wikipedia.org
4. Law.cornell.edu
5. Law.yale.edu
6. indianexpress.com
7. theprint.in
8. newsclick.in
9. civilsdaily.com
10. scroll.in
11. prsindia.org
12. ijtr.nic.in