Open Access Research Article
PRESERVING INDIVIDUAL LIBERTIES: EXPLORING THE NATURE AND SCOPE OF THE RIGHT AGAINST SELF-INCRIMINATION IN THE DIGITAL AGE
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Article Details
"PRESERVING INDIVIDUAL
LIBERTIES: EXPLORING THE NATURE AND SCOPE OF THE RIGHT AGAINST
SELF-INCRIMINATION IN THE DIGITAL AGE"
AUTHORED BY - AYUSH RAI
ABSTRACT
The
privilege against self-incrimination, protected in Article 20(3), is one of
the most compelling rights in Part
III of the Constitution. The founders of the Constitution considered it to be sacred, and its significance has
been emphasised in several legal rulings worldwide. The right in question is widely recognised as the ability of the
accused to legally choose not to answer incriminating questions.
The law changes with the times so
that it can stay connected to the changing social order. Because the court is in charge of interpreting the law, it is
important that they stay up to date on
all the changes happening in society. thieves no longer lack access to
technology. Today, thieves are the ones who use high-tech tools to
commit crimes. The constitutionality of
science tests like narco
analysis, P-300, and polygraph is in question because courts have recently started to accept these tests, which they
didn’t get before.[1] So now there is an urgent need to seriously think about whether it is constitutional from the
point of view of human rights.
RESEARCH QUESTIONS
How do judicial interpretations of the right against self-incrimination in India, as reflected in Supreme Court
judgments, balance the need for effective law enforcement with the protection of individual rights in the context of technological advancements?
To what extent does the evolving
landscape of technology challenge the traditional boundaries of the right against self-incrimination in legal systems?
What
are the practical implications and limitations of technologies such as Narcoanalysis
or P300 Test/Brain Mapping on the right against self-incrimination, and how should their
use be regulated to ensure a fair legal process?
RESEARCH GAP
The efficacy of
existing legal safeguards in mitigating potential abuses or violations of the
right
against self-incrimination during technological interventions requires more scrutiny. An assessment of the practical effectiveness of these safeguards
will contribute valuable insights to discussions on maintaining a fair and just legal system. The paper is a sincere attempt
to fill this gap.
SCOPE AND LIMITATION
This project meticulously explores
the intricacies of the right against self-incrimination, emphasizing its significance in the
context of emerging technologies, with a particular focus on the judicial interpretation by the Supreme Court of India. While the study offers a comprehensive analysis of specific technologies like narcoanalysis and P300 Test/brain mapping, it is confined to the Indian legal
framework, limiting its scope to a
specific jurisdiction. While
advocating for the judicious use of technology, the study refrains from prescribing explicit policy
recommendations, leaving room for further research and nuanced considerations in this evolving legal landscape.
METHODOLOGY
This project
employs a multi-faceted research methodology to comprehensively investigate the interplay between the right against
self-incrimination and technological
advancements. The study primarily
relies on a thorough review of
legal literature, statutes,
and landmark judgments, with a particular emphasis
on decisions rendered various
courts of India. A qualitative
content analysis approach is employed to
extract nuanced insights and patterns from these legal sources.
To address gaps in empirical research,
the study integrates case studies and examples to illustrate practical implications. Furthermore, a critical analysis
framework is applied to assess the
effectiveness of the right against self-incrimination and the impact of specific technologies,
such as narcoanalysis and P300 Test/brain mapping.
HYPOTHESIS
This project posits that
the evolution of technology poses challenges to the traditional contours of the right
against self-incrimination within the
legal framework. It is hypothesized that advancements in interrogation technologies may introduce complexities in the delicate
balance between individual
rights and effective law enforcement. The judicial interpretation by the Supreme
Court of India is expected to play a
pivotal role in defining the parameters of this right in the digital age. The study
anticipates that while technology offers enhanced investigative tools, there exists a delicate equilibrium
between the protection of individual liberties and the imperative of gathering
evidence.
INTRODUCTION
The right to remain silent, also
known as the right against self-incrimination,
is seen as a manifestation of a core principle and honorable aspiration that a person accused of a crime should not be exposed to the
distressing experience of self-accusation, lying
under oath, or disrespect. The preference for the
accusatorial system of criminal justice administration over the
inquisitorial system is because the latter may use brutal tactics of
questioning, torture, and abuse to collect self-incriminating evidence.
The right
against self-incrimination, according to Justice Iyer, is a compassionate provision. It ensures
the credibility, honesty, and immutability of the individual under suspicion. Converting
an adversary system to an
inquisitorial system within the
hostile antechamber of a police station
constitutes a denial. It is critical
that investigative agencies refrain from employing minimally invasive methods in order to circumvent
the just and equitable investigative process. Respect is due to the investigating officer whose agitation causes his fists and intellect to spin.[2]
Law enforcement sometimes
employs aggressive tactics
during investigations to
extract information from suspects.
India, as a civilized society governed by the principles of rule of law, cannot allow such methods. India has consistently adhered to the principle that evil cannot
be eradicated by resorting to more evil. Thus, it is crucial for the
police to ensure that their interrogation
methods adhere to the legal frameworks and stay within the permissible limits. Therefore,
modern investigators now rely on
scientific evidence, which combines the principles of science and law. They utilize various
scientific techniques such as narco analysis, brain mapping, and polygraph to
uncover the truth from criminals in
exceptional cases. It is important for
all investigators and forensic experts to adhere to the principles of fair play
and unbiased approach when applying
scientific methods. These scientific evidences should be used in a responsible manner.
The aim of this
research article is to analyze the accused’s entitlement to refrain from
speaking in three different scenarios, namely, whether
this entitlement may be regarded as a basic right; the extent to which it has safeguarded the accused’s interests
against coerced confessions and testimony;
and the limitations that have been established regarding this right and lastly,
the paper critically analyses the
various scientific tests prevalent in the country, their validity and evidentiary value.
NATURE AND SCOPE OF THE PRIVILEGE
The Right to Silence and Article
20(3) of the Indian Constitution is
discussed in the 180th Report of the
Law Commission of India.[3] The research states that one of the most basic principles of common law is the freedom to
keep quiet. The basic premise is that parties and prosecutors shouldn't be able to convince courts or tribunals to
presume guilt only because an accused individual chooses not to answer
questions. One of the cornerstones of
the right to stay quiet is the protection against self-incrimination.
A person’s right to stay quiet is as
firmly embedded in American law as the presumption of innocence. Moreover, according to the rule of common law, no one
may be forced to testify against him
in any way, either before or during the trial.[4] A
defendant has the right to a fair trial, which incorporates the following:
the right to a presumption of innocence; the right to be silent; the right to decline to testify;
and the right to not be compelled to produce evidence
that would incriminate oneself. Evidence collected in an equitable way and
about the consequences of expressing one's opinions.[5]
Therefore, the right against
self-incrimination is a perplexing
provision in criminal process. Essentially,
the privilege refers to the right of a suspect to refuse to divulge
incriminating information to the police,
which may be used
as evidence against
them in a criminal prosecution.[6] It is crucial to first explore the essential aspect of privilege, focusing on
its least contentious implementation.
Non-defendants may be compelled to testify during a trial, and failure
to answer questions may result in being held in contempt of court or other legal consequences.[7]
The law does not hesitate to employ
strict measures in order to get witnesses to collaborate, with a
few exceptions like spousal privilege. However, defendants provide a whole other set of challenges. A
defendant is protected from having to testify due to the privilege against
self- incrimination. The fundamental right of a
defendant is the right to remain
silent if he desires.[8] A defendant’s refusal
to testify is often seen as incorrect, at least at trial, according to this concept, which seems to function in some form or another in different countries.
The challenge, however, is in providing
an explanation for why this is considered incorrect.
The common arguments include
“safeguarding individual privacy,” "+”preserving personal autonomy (Fox Hunt Theory),” and
“preventing the imposition of cruel
choices on alleged offenders.”[9] However, there are other issues that need to be addressed,
such as ensuring the preservation of
victims’ rights, providing witness protection, and conducting thorough and efficient
investigations, among others.
Article 20(3)
of the Indian Constitution guarantees the right to remain silent. In order to
prevent oneself from being implicated, the accused has the basic right to be protected, as guaranteed in this
article. A person is not being coerced into becoming a witness against himself
if he willingly answers the questions
as a witness and thus gives up his right to stay quiet. Article 20(3) does not apply in cases when the
accused’s bodily parts are exposed for identification reasons, such as where a thumb, palm, foot, or finger imprint,
or specimen of handwriting is involved, as stated in the case of State of Uttar Pradesh
v Boota Singh.[10]
Subsection (2)
of section 161 of the Code of Criminal Procedure grants an individual the right to
remain silent during
police interrogation if they believe
that doing so “would have tendency to expose him to a criminal charge or to
a penalty or forfeiture,” which is an exception to the right to remain silent guaranteed by the Indian Constitution. In
addition, no party to the case may
remark on the accused’s inability to provide evidence under Section 315(1)(b).
Based on the following provisions,
it can be concluded that they establish a presumption of innocence and a
presumption of guilt, provide a right to silence during investigation and trial, and prohibit court or any investigating officer
from violating the right to silence of the accused
or witness.
From what we can see, the
Constitution and the CrPC’s
respective sections are easy
to understand
and apply, that the right to remain silent is a prerequisite for the constitutional right to do so as outlined in article 20(3). The former
is crucial in order to comprehend and interpret the latter. Thus, the freedom to remain
silent can be considered a fundamental privilege. Moreover, the aforementioned reasons and explanations are founded upon the assumption that a suspect's
decision to decline answering self-incriminating inquiries is not only allowed,
but also ethically and socially
acceptable behaviour.
JUDICIAL INTERPRETATION
The
comprehensive extent of the protection against self-incrimination cannot be fully understood without acknowledging the significance
of the historic ruling by the U.S. Supreme Court in Miranda v. State
of Arizona.[11] The
Chief Justice of the Supreme Court, Earl Warren, gave the majority decision. He explained the rights and
privileges that a person accused of a crime
has under the Fifth and Sixth Amendments of the U.S. Constitution. These rights
are commonly referred to as Miranda
Warnings or Miranda Rights. According to these warnings, they must be given to a person accused of a crime in the following manner:
·
“You have right to be silent.
·
If you say anything, it can be used as incriminating evidence
in the court of law.
·
You have the
right to have a counsel present
during any interrogation.
·
If you cannot afford a counsel,
one will be appointed for you if you so desire.
·
Do you understand the rights which just read to you? With these rights, do you wish to speak
to me?”[12]
In India, the extent of the privilege
was brought into question before the Supreme Court in 1954 in the case of M.P.
Sharma v. Satish Chandra.[13] In
this case, a 5-judge bench discussed the
interpretation of the term 'to be a witness' for the first time. The main
concern brought up in this case was the interpretation of the phrase “to be a witness.” Does it
encompass providing any kind
of evidence, or is it limited to only
giving oral testimony? The Supreme
Court expanded the proposition to encompass not just written and oral
statements, but also any documentary evidence that may be required
to be presented. The Court said “to be a witness” in Article 20(3) means nothing more than ‘to furnish evidence’.
Bare literal interpretation Article 20(3) would
be to rob the guarantee of its substantial purpose and to miss the substance”.
The expansive depiction of the
privilege was significantly restricted in a later eleven-judge panel of the Supreme Court of India.
The
majority ruling in the
case of State of Bombay
v. Kathi Kalu Oghad[14] established that the phrase “to be a
witness” refers to the act of providing information that is derived from the personal knowledge
of the one providing the information. This definition encompasses only the act of
delivering personal testimony, which is contingent upon the individual's own will. “To be a witness may be equivalent to furnish evidence
in the sense of making oral or written statement based on personal knowledge
and nothing more than that,
hence it does not include signatures, fingerprints, footprints, blood samples, thump impressions, hair samples etc.”
As a result of the emergence of
sophisticated technologies and the implementation of diverse methodologies
in criminal investigation, this privilege was once more challenged in a
number of appeals before the Supreme
Court of India. A few cases deviate from the norm as well. The taking of a suspect’s likeness, audio
recordings, blood samples, hair samples, etc., may be requested as a condition of cooperation with an investigation.[15] In the case of Selvi v.
State of Karnataka[16], the Five judge Bench of the Supreme
Court of India strongly opposed the use of any
of the techniques mentioned above.
They believed that using these techniques would violate the right against self-incrimination. However, the court permitted the
implementation of these techniques through
voluntary administration.
EFFECTIVENESS OF THIS RIGHT IN PROTECTING THE RIGHTS OF ACCUSED
To comprehend the advantages of
exercising the right to remain silent for the accused, one might
refer to the research undertaken by Shmuel Leshem. “In his study, Leshem examined the works
of H. Mialon,[17] as well as the work of D. Siedmann and A. Steinx.”[18] Leshem argues that the right to silence serves as a limitation
placed on a jury to prevent the
accused from being deemed
guilty only due to their refusal to speak, especially when there is a lack of
evidence that incriminates them.
In his study,
Leshem carefully examined the various outcomes that could arise from an
accused person exercising their right to remain silent. His findings indicate
that the introduction of
this right does not impact the decision of innocent suspects to refrain from
confessing. However, it
challenges the notion that innocent suspects remain silent due to false
concessions. However, when an innocent suspect chooses to speak, whether
they have the right to remain silent
or not, it can work in their favour. This is because if the right to
remain silent does exist, it can cause a
guilty suspect to change their strategy from confessing to remaining silent.
Based on the sequence of events, it appears that the likelihood of the guilty suspect
choosing to remain silent is
higher compared to the likelihood of confessing when the right to silence is
not present. Thus, in cases where individuals have the right to remain
silent, juries are less likely to
convict if the evidence contradicts the suspect’s statements.
Therefore, in
the absence of
incriminating evidence, if an innocent suspect exercised his right to remain silent and did so voluntarily, the advantage of this application would be a jury restriction that forbids the
conviction of a suspect who remains quiet, instead of claiming that the
privilege motivates the culpable suspect to go from admitting guilt to
remaining silent. The research conducted by Leshem demonstrates that
the right to remain silent safeguards innocent individuals, irrespective of their decision
to stay silent, so ensuring
their protection.
The right to silence serves as a
significant protection for the accused, as demonstrated in the case of R. B. Shah v D. K. Guha[19], where it was determined that this
right can be exercised immediately after a FIR has been filed against
the accused. Additionally, the
Nandini Satpathy case
established that the right to silence also shields the accused from
psychological pressure. However,
these benefits can only be
obtained if the locations
and reasons for which
protection can be granted are understood. Moreover,
in the well-known Selvi v. State of Karnataka[20] case, it was effectively decided
that, in light of recent national and international developments pertaining
to an individual’s right to life and liberty (as protected by article 21 of the
Indian Constitution), polygraph
examinations and narco-analytic tests are obviously in violation of the right against self-incrimination under article 20(3) of the constitution.[21] Given the close connection
this article has to the right to silence, using lie-detector tests to extract
forced testimony or obtain forced evidence is clearly an infringement on the accused’s right to exercise his right to silence. In other words, a
different set of circumstances may
have allowed the accused to opt out of speaking
during the inquiry.
IS THIS AN ABSOLUTE RIGHT?
According to the seventh chapter of the examination conducted by the Scrutiny
of Acts and Regulations Committee (Parliament of Victoria - The Right to Silence: An Examination of the Issues),
there can be challenges that arise when individuals choose to exercise
their right to remain silent. Here are some of the claims:[22]
·
‘Professional’ or ‘hardened’ criminals exploit this privilege to remain silent.
·
The right to remain silent can also
impede police investigations; an evaluation must be conducted regarding the reduction
in the likelihood of charges
being filed.
·
The
prosecution may encounter challenges during a trial due to the right to remain silent,
specifically when confronted with an
“ambush” defence. In addition to a heightened
probability of unwarranted acquittals, this issue may also result in protracted trials as the prosecution would
be required to present evidence to refute the entire spectrum of possible
defences.
·
This privilege may also result in a substantial quantity of
acquittals.
Indeed, the right to remain silent as
stated in article 20(3) is not unrestricted. An examination of the verdicts rendered
in specific instances might enhance our comprehension of this stance.
Firstly, the case of Prahlad v State of Rajasthan[23], which was determined on November
14, 2018, might be cited. an eight-year-old
girl was raped and murdered. In this case the
accused was proclaimed a person who had purchased sweets for her from a
sweet shop. After which the victim was not seen. The victim’s
father filed a formal complaint (FIR) against the defendants. The latter subsequently filed appeals
in an attempt to be exonerated of the conviction orders and
verdicts. Regarding the appeal, the court found the accused guilty of murder under Section 302 IPC but granted him a
benefit of doubt for the crime covered by Section 4 of the POSCO Act. The most notable aspect of this case was that
the accused did not address the section 313 CrPC accusation about when he
parted ways with the victim. Concerning the topic of what transpired after the accused
bought chocolates for the victim,
no answer was given either. A negative conclusion is drawn about the accused as
a result of his silence in a
situation when he is expected to provide an explanation. The Court drew an adverse conclusion from the
convict's silence and found him guilty of the eight-year- old
victim’s murder because this man was
the last person anybody saw the youngster with, and he wouldn’t explain what happened after
that and instead chose to remain silent. Therefore, in this instance, the accused’s silence
worked against him.
The case of Ramnaresh & Ors v State of Chattisgarh[24] also exemplifies a scenario that demonstrates the right to silence as a right that is not
absolute. The appellate Court emphasized that “the Court would be entitled to draw an inference,
including adverse inference, as may be acceptable to it in accordance with law”.
Therefore, it can be inferred that
the accused’s right to remain silent does not necessarily put the prosecution at a significant disadvantage during the interrogation process. It has been demonstrated in various court
rulings that the right of an accused person is not without limitations. There have been instances
where the accused's decision to remain silent and not provide any explanation has resulted in the court making
unfavorable inferences against their interests.
SCIENTIFIC TESTS AND THEIR VALIDITY
NARCOANALYSIS
The semantic construction of narcoanalysis asserts that it is a kind of
psychoanalysis that utilizes medicines to create a sleep-like condition.[25] The
first examples of the recognition that drugs
may potentially be used to enhance contact with the suspect during questioning
can be traced back to 1916.
Arthur S. Lovenhart[26] stumbled onto the creation of barbiturate while doing experiments with respiratory
stimulants, just by chance.[27] When
the medications stated above are
injected into the patient's body, it induces a condition of comatose ness in the individual. The individual seems to be in a state of slumber.[28]
The aim of this programme
is to help individuals express
and explore their suppressed emotions, thoughts, and
memories that they may not typically feel comfortable sharing.[29] It is commonly
thought that individuals may sometimes be untruthful in order to avoid
recalling certain memories, and this is typically done by relying
on their own imagination.
Therefore, when these specific medicines
are administered, the
subject’s imagination is suppressed, preventing the reflexes or impulses to lie from functioning as they would in normal circumstances. At this juncture,
individuals struggle to differentiate between their limitations and their actions.[30] The medicine inevitably induces garrulousness, hence promoting unconstrained speaking.[31]
P300 TEST/BRAIN MAPPING
Dr. Lawrence A. Farewell patented the
P300, also known as the brain mapping test, in 1995[32] after its development began in the mid-1990s.[33] One such technique is “brain wave finger printing,” which entails subjecting the suspect
to a series of inquiries designed to elicit
information specific to the
incident. As a result, the individual
wears sensory pads on both sides of their head and has an image-generating LCD
installed over their eyes.[34] Here, detectives will show the subject photographs that
they believe may be connected to the crime or that they believe the subject is
exaggerating. The brain cells are activated by specific electrical impulses
when any of these pictures
are recognized remotely.[35]
THE POLYGRAPH/THE LIE DETECTOR TEST
The basic idea behind this forensic
technique is that when certain questions are posed to an accused person, they respond with a mix of thoughts and physical
actions. Some people’s bodily
responses might reveal whether they are lying or trying to avoid answering a
question directly, according
to popular psychological theories. Such behaviours are clinically symptomatic of stress on the individual,
and stress is always accompanied by elevated heart rate, high blood pressure, and a rapid pulse rate. The polygraph
machine, which has sensors connected to the patient,
accurately measures this.
The
interrogators build a meticulously constructed questionnaire that begins with
questions for which the answers are already known. As a result, after the baseline has
been established, any deviation in the participants' physical
parameters is believed
to be a lie.
CONSTITUTIONAL VALIDITY
In the past few years, the way crimes
are investigated has also seen the
use of scientific interrogation methods
with the traditional third-degree interrogation. These scientific techniques are used specially in those cases where police is not able to
find any relevant information regarding the case in hand
through physical interrogation. But the question is: Won’t it be the same as self-incrimination if the subject agrees to say it with the
help of scientific research? Article
20(3) of the Constitution of India says that this raises the question of
whether it is legal. Therefore, any assertions produced through these
scientific examinations shall be regarded as testimonials and shall
not be admitted as evidence, as they violate Article 20 (3). Additionally, it is important to note that virtually
every nation in the world grants its citizens
the right to remain silent. In a similar fashion, the law protects both accused
and witnesses from self-incrimination in India. This section evaluates the legal
validity of the scientific experiments in question.
The correct position regarding
constitutional validity of these techniques is widely discussed by Gautam Bhatia in his book[36] where
he talks about “Two Models of the Criminal Process” given by US jurist Herbert Packer in 1964 which are: ‘crime
control model’ and ‘due process model’. The crime control model primarily focuses
on the end result of the criminal
proceeding and for that it does not take into account how relevant information is extracted
from the persons involved in that particular matter. Whether it is
by interrogation or by unusual means
like third degree etc., it does not
matter in crime control model. On the contrary, the due process model focuses on how relevant
information got extracted; if that information was extracted by force or coercion, the Court will not consider
that information. In particular the due process model always takes the process of getting information into consideration.
The author also focused on the Selvi
judgement and endorsed the judgement as it is the first judgement in India which is given on the lines of “due process
model”. In this judgement the court
not only talked about the preservation of the bodily privacy but also the
mental privacy which subsequently got
upheld in the case of K S Puttaswamy vs Union of India[37]. In Selvi case the Court ruled that the use of such neuroscientific
investigative techniques constituted testimonial compulsion and it violates an accused
person's right against self-incrimination under
Article 20(3), and their right to
life and personal liberty
under Article 21 of the Constitution.
The court held that Article 20(3)
cannot be read into isolation instead it should be read in harmony with other fundamental
rights by taking reference from the case of Maneka Gandhi vs Union of
India[38].
Both the polygraph and P-300 utilise probes and
electrodes, without any form of direct
invasion. The investigation relies solely on the analysis provided by
doctors, who base their findings on the patient’s psychological reports.
During these tests, the subject does not provide any verbal responses while
the investigation is conducted. However, it may not be compelling the accused but in a way, it is the breach
of the mental privacy of the accused person. As of narcoanalysis, the practice remains contentious due to its
execution via drug administration into
the subject’s body. The subject’s mental state is altered during this
examination through the
administration of sedatives, as previously mentioned. Consent of the suspect is
a critical factor that must be taken
into account during narcoanalysis. Both are also breaching the Right to
Privacy of accused which is now a fundamental right and using these
techniques without the consent of
the accused will lead to the breach of his mental privacy and if the accused
got compelled for these tests, then
it
will lead to compulsion and directly violative of Article 20(3).
But in few cases[39], Indian High Courts have affirmed
the validity of scientific tests, such as narcoanalysis.
In these instances, the constitutionality of
the proceedings was upheld on the grounds
that obtaining legal authorization prior to the administration of the test does not constitute self-incrimination. This also
shows disparity among ruling of different high courts in India even after having the ruling of the Apex Court in Selvi judgement.
EVIDENTIARY VALUE
The
Evidence Act, 1872 governs the rules and procedures of the admission
of confessions and evidence in a court of law.[40] In order for a material or confession to
be considered as evidence, it must meet certain criteria. The court has the discretion to either accept or reject such evidence.
Sections 24 to 30 of this legislation
pertain to the courts’ ability to accept confessions as
evidence. The aforementioned regulations specifically state that any confession made while in a mentally disturbed state or under
the influence of inducement or threats is not acceptable as evidence in court. Hence, it is evident that any statement
provided by the defendant during a
narco analysis test cannot be deemed admissible as evidence due to the
influence of narcotic substances, which impairs the defendant's mental stability under such circumstances.[41]
The stance was
established in the Selvi case, whereby the Supreme Court determined that narco analysis is illegal and legally null,
irrespective of whether the authorities have the individual's agreement prior to performing such a
test. The narco analysis test is also subject to scrutiny under other criminal laws, such as the
Penal Code, 1860, and the Criminal Procedural Code. According to the Penal Code, 1860, causing harm to force someone
to reveal information or administer
harmful drugs is a grave offence that can be punished by law. As a consequence, narcoanalysis is deemed an unethical
scientific investigation technique in violation of all criminal
legislation in the nation. However, in certain circumstances, Section 45 of the Evidence
Act allows for the admission of expert opinions, which was used by some high courts to authenticate the findings of scientific inquiry methods like
as polygraph testing and brain mapping. However, in such cases it should not be
given blind importance as court is
an expert’s expert.[42]
CONCLUSION
It is important to recognise that
justice must be upheld without compromising fundamental rights. There would have been much more cases of prison abuse
and forced testimony if the founders of the Constitution had omitted the
right against self-incrimination. The
legal system would have been
compromised if evidence had been extracted by coercion. Therefore, finding a
harmonious equilibrium between individual rights and the State’s responsibility to administer justice is crucial. Nevertheless, it is
apparent that India has a very low percentage of criminal convictions[43], many
a times, real accused gets acquitted due to lack of prima facie case against him and hence, this issue requires
further scrutiny. The Supreme Court, in the case of D.K. Basu v. State of West Bengal[44], recognised the pressing need to
advance scientific techniques for
investigations and interrogations where
court also observed that resorting to the use of brutal ways to torture the accused, known as third degree
methods, is a direct violation of the fundamental principles of the rule of law.
Several high courts in India have also issued rulings in favour of these tests.
In my opinion
these scientific methodologies may aid in eliciting the facts from the
perpetrator, hence enhancing
the rate of conviction. But my focus is more on the “due process model” and the
credibility of these techniques is still questionable due to lack of transparency in the manner these
techniques are used because these
techniques are only understandable by the experts and the person on whom these tests are
administered will have to rely only on the report of these tests. Especially in the case of narco
analysis where the accused is not in conscious situation, and it is very easy for the police to get
the report twisted according to his desired result of the case.
I also found out that many courts in
India are giving the permission for these scientific tests without going into the details that the
consent for these tests from the accused is derived in which manner, is it really voluntary or it is obtained
from the accused through undue influence or coercion or by using third-degree on him. It is done
especially in those cases where police is not able to get any information from the
person in custody even after administering
the third - degree. In such
cases, also the court are not considering the due process model which clearly violates
the rights of the accused.
In my opinion
Selvi judgement is still not applied strictly in true sense throughout the country and the
need of the hour is to adhere to it wholly. Also, the Government should make necessary
changes in law as to clarify the
position regarding the administration of these tests on the person in custody and must form guidelines like in which
cases it can be done, the presence of persons while these tests are administered, authenticity of the report etc.
As in present world the technology is
growing day by day it is also necessary to adopt for getting convictions in criminal cases but on the other hand, we
must ensure that the use of technology
must not in any manner violate the fundamental right of the accused and for
that the “due process model” is the best suited model.
BIBLIOGRAPHY
JOURNAL ARTICLES
·
Bhat
Waseem Ahmad, ‘Dilemma Created by the Privilege Against Self Incrimination’ (2019)
9 GJLDP (April) 30
·
Mike
Redmayne, Rethinking the Privilege against Self-Incrimination (vol. 27, Oxford
·
Journal
of Legal Studies, no. 2 2007) 209-232
·
William
J. Stuntz, ‘Self-Incrimination and Excuse’ [2016] Columbia Law Review, vol. 88,
1227-1296
·
D.
Seidmann, & A. Stein, ‘The Right to Silence Helps the Innocent: A Game-Theoretic
·
Analysis
of the Fifth Amendment Privilege’ [2000] Harv. L. Rev, vol. 114, 430-510
·
Shmuel
Leshem, ‘The Benefits of a Right to Silence for the Innocent’ [2009] USC Center
in Law, Economics and Organisation, Research Paper Series and Legal Series Reseach
Paper Series, Research Paper no. C11- 19
·
Satadru
Goswami and Ranjini Das, ‘Article 20(3): A Constitutional Mandate or A Prisoner's
Dilemma?’ (2009) 2.1 GNLU L. Rev. 189
·
B.
Yamuna Saraswathy and R.B. Rishabh, ‘India's Call on Scientific Criminal Investigations’
2.1 VSLR (2020) 54
·
Macdonald
John, ‘Narcoanalysis and Criminal Law’ [1954] 111 Am J Psychiatry, 283, 288
·
Grof
Stanislav, ‘The Discovery of LSD And Its Psychedelic Effect’ [2001] Multidisciplinary
Association for Psychedelic Studies
ONLINE WEBSITES
·
Anupama Katakam, ‘The Truth Serum Trial’, (Frontline, 12 March, 2004)
www.google.co.in/amp/s/frontline.thehindu.com/the-
nation/article30221420.ece/amp/>
·
Shrabasti
Sarkar, ‘Right to Silence in India- An Analysis of its Scope, Use and Efficacy’
(2022) Volume 8 Issue 2 Journal of Legal Studies and
Journal
·
·
Jenika
Binotto, Sukhman Chahal, Shahbaz Khan, Banji Li and Amanda Risple, ‘A General Review
of the Chemisfry and Utility of Scopolamine’
·
·
Lawrence
A. Farwell, ‘Brain Fingerprinting Brief Summary of the Technology
·
Khagesh
Gautam, ‘The Right Against Self-Incrimination Under Indian Constitution & the
Admissibility of Custodial Statements Under the Indian Evidence Act, 1872’ (2021)
Indiana University Maurer School of Law.
·
www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1090&context=e
td>
·
Arun
Bothra, ‘Why is our conviction rate so low?’, (The New Indian Express, 21
·
February
2019) www.newindianexpress.com/opinions/2019/feb/21/why-is-
our-conviction-rate-so-low 1941680.html>
CASE LAWS
·
Nandini
Satpathy v P.L. Dani (1978) 2 SCC 424
·
R
v Camane and others 1925 AD 570, 575
·
R
v Kuzwayo 1949 3 SA 761 (A) 767
·
State
of Uttar Pradesh v Boota Singh 1978 AIR 1770
·
Miranda
v State of Arizona 1966 SCC OnLine US SC 112
·
M.P.
Sharma v Satish Chandra, 1954 AIR 300
·
State
of Bombay v Kathi Kalu Oghad 1961 AIR 1808
·
V.
S. Kuttan Pillai v Ramakrishnan & Anr AIR 1980 SC 185
·
Selvi
v State of Karnataka, AIR 2010 SC 1974
·
K.S.
Puttaswamy and Anr. vs. Union of India ((2017) 10 SCC 1
·
Maneka
Gandhi v. Union of India, 1978 AIR 597
·
R.
B. Shah v D. K. Guha 1973 AIR 1196
·
D.K.
Basu Versus State of West Bengal (1997 (1) SCC 416)
·
Yusufali
v State of Maharashtra 1968 AIR 147
·
Prahlad
v State of Rajasthan SCC Online SC 2548 (2018)
·
Ramnaresh
& Ors v State of Chattisgarh (2012) 4 SCC 257
·
Ramchandra
Reddy v State of Maharashtra 2004 ALL MR (Cri) 1704
·
Sri
Bachappa v Smt. Lakshamamma @ Lakshmakka Regular Second Appeal No. 1208 of 2021
(Par)
BOOKS
·
V.N.
Shukla, Constitution of India (EBC Explorer, 13th edition 2019)
·
Bhatia,
Gautam, The Transformative Constitution: A Radical Biography in Nine Acts, 2019,
Harper Collins.
LAW COMMISSION REPORT
·
Law Commission of India, Proposals for Constitution of Hi-Tech Fast-Track Commercial Divisions in High Courts (Law Com No 180, 2003)
STATUES
·
The
Indian Penal Code 1860.
·
The
Indian Evidence Act 1872.
·
The
Code of Criminal Procedure,1973.
[1] Bhat Waseem Ahmad,
‘Dilemma Created by the Privilege
Against Self Incrimination’ (2019) 9 GJLDP
(April) 30
[2] Nandini Satpathy
v P.L. Dani (1978) 2 SCC 424
[3] Law Commission of India, Proposals for Constitution of Hi-Tech Fast-Track Commercial Divisions in High Courts
(Law Com No 180, 2003)
[4] R v Camane and others 1925
AD 570, 575
[5] R v Kuzwayo 1949 3 SA 761 (A) 767
[6] Mike Redmayne, Rethinking the Privilege against
Self-Incrimination (vol. 27, Oxford Journal
of Legal Studies, no. 2 2007) 209-232
[7] The Indian Penal Code 1860, s 179
[8] Supra Note,
6
[9] William J. Stuntz, ‘Self-Incrimination and Excuse’ [2016]
Columbia Law Review,
vol. 88, 1227-1296
[10] State of Uttar Pradesh v Boota Singh 1978 AIR 1770
[11] Miranda v State of Arizona
1966 SCC OnLine US SC 112
[12] Ibid
[13] M.P. Sharma
v Satish Chandra, 1954 AIR 300
[14] State of Bombay v Kathi Kalu Oghad 1961 AIR 1808
[15] V. S. Kuttan Pillai v Ramakrishnan & Anr AIR
1980 SC 185
[16] Selvi v State of Karnataka, AIR
2010 SC 1974
[17] D. Seidmann, & A. Stein, ‘The Right to Silence Helps the Innocent:
A Game-Theoretic Analysis
of the Fifth Amendment Privilege’ [2000] Harv. L. Rev, vol. 114, 430-510
[18] Shmuel Leshem, ‘The Benefits
of a
Right to Silence for the Innocent’ [2009] USC Center in
Law, Economics and Organisation, Research
Paper Series and Legal Series Reseach Paper Series, Research
Paper no. C11 - 19
[19] R. B. Shah v D. K. Guha 1973
AIR 1196
[20] Supra Note, 16
[21] V.N. Shukla, Constitution of India (EBC
Explorer, 13th edition
2019)
[22] Satadru Goswami and Ranjini Das, ‘Article 20(3) : A Constitutional Mandate
or A Prisoner's Dilemma?’ (2009)
2.1 GNLU L. Rev. 189
[23] Prahlad v State of Rajasthan
SCC Online SC 2548 (2018)
[24] Ramnaresh & Ors v State of Chattisgarh (2012) 4 SCC 257
[25] Supra Note, 13
[26] B. Yamuna Saraswathy and R.B.
Rishabh, ‘India's Call on Scientific
Criminal Investigations’2.1 VSLR (2020)
54
[27] Anupama Katakam, ‘The Truth Serum Trial’, (Frontline, 12 March, 2004) www.google.co.in/amp/s/frontline.thehindu.com/the-nation/article30221420.ece/amp/> accessed 8 January 2024
[28] Shrabasti Sarkar, ‘Right
to Silence in India- An Analysis of its Scope,
Use and Efficacy’
(2022) Volume 8 Issue
2
Journal of Legal Studies and Journal Sarkar-JLSR.pdf> accessed 8 January 2024
[29] Macdonald John, ‘Narcoanalysis and Criminal Law’ [1954] 111 Am J Psychiatry, 283, 288
[30] Jenika
Binotto, Sukhman Chahal, Shahbaz Khan, Banji Li and Amanda Risple, ‘A General Review of the Chemisfry
and Utility of Scopolamine’ <http://www.ucalgaiy.ca/˜bali/chem353/article/oofinal/oofmal.htm> accessed
8 January 2024
[31] Grof Stanislav, ‘The Discovery of LSD And Its Psychedelic
Effect’ [2001] Multidisciplinary Association for Psychedelic Studies
[32] Director and Chief Scientist,
Brain Wave Science,
Iowa, USA
[33] Lawrence A. Farwell, ‘Brain Fingerprinting
Brief Summary of the Technology evidence.com/site/Behv_Evid/Farwell_sum6_oo.html> accessed
8 January 2024
[34] Liquid Crystal
Display Screen
[35] Supra Note, 31
[36] Bhatia, Gautam,
The Transformative Constitution: A Radical Biography
in Nine Acts, 2019, Harper
Collins, pg. 299-325.
[37] K.S. Puttaswamy and Anr. vs. Union
of India ((2017) 10 SCC 1
[38] Maneka Gandhi v. Union of India, 1978
AIR 597
[39] Ramchandra Reddy v State of Maharashtra 2004 ALL
MR (Cri) 1704
[40] The Indian Evidence Act 1872, s 24
[41] Khagesh Gautam, ‘The Right Against Self-Incrimination
Under Indian Constitution & the Admissibility of Custodial Statements Under
the Indian Evidence Act, 1872’ (2021) Indiana University Maurer School of Law
[42] Sri Bachappa v Smt. Lakshamamma @ Lakshmakka Regular Second
Appeal No. 1208 of 2021 (Par)
[43] Arun Bothra, ‘Why is our conviction
rate so low?’,
(The New
Indian Express,
21 February 2019) www.newindianexpress.com/opinions/2019/feb/21/why-is-our-conviction-rate-so-low
1941680.html> accessed 8 January 2024
[44] D.K. Basu Versus State of West Bengal (1997 (1) SCC 416)
Article Information
PRESERVING INDIVIDUAL LIBERTIES: EXPLORING THE NATURE AND SCOPE OF THE RIGHT AGAINST SELF-INCRIMINATION IN THE DIGITAL AGE
Authors: AYUSH RAI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/30
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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