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RIGHT AGAINST SELF INCRIMINATION AS A FUNDAMENTAL RIGHT
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RIGHT AGAINST SELF INCRIMINATION AS A
FUNDAMENTAL RIGHT
Authored By - Aswathy Elsa
Varghese
“The exercise of power to extract answers
begets a forgetfulness of the just limitations of that power”[1]
-John Henry Wigmore
ABSTRACT
The concept of Self-Incrimination
means “testifying against yourself” and under the constitution of India,
specific protection has been provided to people against this phenomenon. This
right has originated from the Latin maxim “Nemon tenetur seipum accusare”
which says that “no man is obliged to accuse himself”. This principle of
protection against being forced to dispense evidence against yourself has been
made a fundamental right under the constitution of India under Article 20(3).
The protection granted to people against self-incrimination has been accepted
as a significant principle of criminal jurisprudence universally, this
principle has been included by legal systems of many countries including the
American Jurisprudence. This research aims at studying right against
self-incrimination, its scope and nature under Indian Jurisprudence.
Keywords - Self-Incrimination, Constitution,
Fundamental Right, Narco Analysis
INTRODUCTION
Self-Incrimination, as the term
itself suggests, is an act of implicating one’s own self by dispensing evidence
against themselves. There are many acceptable definitions of this term but the
most comprehensible one is the following “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”[2].
In the Indian constitution, right against self-incrimination has been made a
fundamental and constitutional right as specifically mentioned in Article
20(3), as opposed to just inculcating it as a statutory right. This step was
taken considering the importance of enforcement of this right. The basic
principle from which this concept has been materialized is that “no person
shall be forced to testify against himself”, major component here is that no
force should be applied on a person accused of an offence to provide evidence
against himself. The constitutional mechanism of this country has made right
against self-incrimination a “fundamental right”, making it a basic right which
must be enforced by the State to safeguard the interests of an accused. The
constitution of India is very popularly known as the “bag of borrowings” and
this title has been given because the Indian constitution has adopted best of
features from constitutions all over the world. The virtue of protection
against self-incrimination in Indian constitution has been borrowed from
American jurisprudence.
According to the constitution, the
protection of right against self-incrimination has been extended to any person
accused of committing an offence. This provision vests the right of silence in
every person being alleged of commission of an offence so that he/she is not
subjected to any kind of compulsion to dispense evidence against himself.
Section 161(2) of Code of Criminal Procedure, 1973 also protects an accused of
making a forced statement during interrogation which can implicate him, in case
of Nandini Sathpathy v. P. L. Dani[3],
the Apex Court laid down that a statement cannot be extracted out of a person
accused of committing an offence by application of force or compulsion which is
self-incriminatory in nature. The scope of protection provided by Article 20(3)
includes the right to remain silent because it is essential to safeguard the
interest of a person who is not yet proven guilty beyond a reasonable doubt.
Further the scope of Article 20(3) was discussed in case of M.P. Sharma v.
Satish Chandra[4],
the Supreme Court also examined the components to be observed while assessing
an act of self-incrimination.
ASSESMENT OF ARTICLE 20(3) OF INDIAN
CONSTITUTION AND SECTION 161 OF CODE OF CRIMINAL PROCEDURE, 1973
“No person accused of
any offence shall be compelled to be a witness against himself”[5], this provision of the constitution
of India provides explicit protection against self-incrimination to any person
accused of an committing an offence. In case of Narain Lal v. M.P. Mistry[6],
the Supreme Court highlighted certain essential features of this particular
provision and in order to benefit from the protection provided under this
provision these essentials must be present. According to Article 20(3) of the
constitution of India, there are three important constituents of this provision
as also mentioned in the case of M.P. Sharma v. Satish Chandra[7].
The ingredients of Article 20(3) are as follows:
·
Accusation of commission of an offence- Article 20(3) extends its protection only towards a
person against whom a formal accusation of committing an offence has been
levelled. Lodging of F.I.R or a complaint would qualify as a formal accusation
in Indian legal system and the commencement of trial or enquiry is not a
necessary mandate in this context. Article 20(3) becomes operational only in
the presence of such formal accusation and it is indispensable that such formal
accusation be levelled before the person is making self-incriminating statement[8].
In M.P Sharma v. Satish Chandra[9],
the Apex court held that a person who has been named accused in the First
Information Report (F.I.R) is entitled to the protection of Article 20(3) and
it further held that the nature of protection provided under Article 20(3) is
extended to a person in both pre-trial and trial stages. In case of Balasaheb
v. State of Maharashtra[10],
Supreme Court held that a witness in police case, who is also an accused in the
complaint case for the same incident, cannot be provided absolute immunity
under Article 20(3) of the constitution against testifying. However, he has the
right to remain silent in context of answering questions that may implicate him
in future.
·
Protection against “compulsion” to be a witness- To comprehend the ambit of compulsion
to be a witness it is essential to study judicial pronouncements which
specifically dealt with this aspect. M.P Sharma’s Case[11]
provided an extensive interpretation of the term “to be a witness”, compulsory
collection of fingerprints or specimen of a person’s handwriting was held to be
violative of Article 20(3) by the Supreme Court. However, Supreme Court
overruled its own verdict in case of State of Bombay v. Kathi Kalu[12]
it was held that “to be a witness” is not identical to “dispensing evidence”,
therefore collection of fingerprints or specimen of handwriting would not be
implicit in the ambit of “to be a witness”.
The next question
would be whether any information furnished by the accused after arrest would
qualify as evidence under Section 27 of The Indian Evidence Act, 1872. This
contention was dealt by Supreme Court in the case of Parshadi v. State of
Uttar Pradesh[13],
it was held that any information dispensed by the appellant of such nature
would be admissible and qualify as evidence under the Act.
·
Compulsion resulting in dispensing of evidence against own self- Compulsion is the most essential
ingredient of the nature of protection extended by Article 20(3). An
accused can be compelled to submit to investigation by providing fingerprints
or specimen of his handwriting as held in Kathi Kalu’s Case[14],
it was further laid down by the court that the compulsion to make self-incriminating
statement must be proved. The protection of Article 20(3) is only extended to a
person being compelled to incriminate himself, if any confession is made
without the presence of inducement or threat then Article 20(3) cannot be
invoked.
The protection provided under this
provision is not subject to any voluntary dispensation of oral or documentary
evidence of self-incriminatory nature, an accused is well within his capacity
to voluntarily waive his right against self-incrimination. In Amrit Singh v.
State of Punjab[15],
the accused was charged with murder and rape of an eight-year-old girl, when
the body of the victim was discovered her closed fist had strands of hair. The
police wanted to collect a sample of hair of the accused which he refused; the
court ruled in favor of the accused as he was under the veil of protection
under Article 20(3).
Section 161 of Code of Criminal
Procedure, 1973 talks about examination of the witness, according to this
provision a police officer examines a witness. The term “persons” present in
the language of this provision has been a major point of contention which was
explained by Privy Council in case of Pakala Narayan Swami v. Emperor[16],
it was held that the term “persons” also encompasses anyone who maybe accused
subsequently during the investigation. Section 161 of CrPC is an eccentric
provision of law as it presents with antithesis of its own primary feature,
clause 1 of this provision creates an obligation on the person being examined
to answer all questions honestly. On the other hand, clause 2 of the same
provision also excludes a person from answering any question which would result
in incriminating himself. Thus, Section 161(2) and Article 20(3) acts a veil of
protection extended to safeguard the interests of an accused in the case, it
prevents the police from extracting any kind of forceful confessions or oral
testimonies which can later implicate the person for crime.
RIGHT TO REMAIN SILENT AND WAIVING
THE RIGHT AGAINST SELF-INCRIMINATION
The constitutional mechanism of India
has provided its people with the right to remain silent as a fundamental and
constitutional right. The most significant feature of Indian Criminal
Jurisprudence is that no person shall be treated guilty until proven beyond
reasonable doubt, therefore safeguarding the interests of an accused is not
only an extension to his fundamental right but also human right. In case of D.K
Basu v. State of West Bengal[17],
the court laid down proper rules for the protection of accused in criminal cases
and it was further held by the court that after an accused is arrested, he
should be expressly informed of his right to remain silent under Article 20(3).
Supreme Court’s rationale behind this judicial pronouncement was to establish a
system of awareness where no undue advantage is taken by authorities of an
accused not being aware of his rights. This case came to be known as one of the
landmark judicial pronouncements on the subject of protection of accused and
freedom to speech and expression.
In
context of waiving the right against self-incrimination, it entirely depends on
the independent facts of each case. This is not a rhetorical question which can
be answered with a standard “yes” or “no”. Right against self-incrimination is
not only a constitutional right but also a fundamental right under Part III of
constitution which means as a general principle its waiver is not permitted.
But in this provision the specific requirement to invoke protection is
application of “compulsion” to extract any confession, so if there is an
element of voluntary dispensation of evidence it is admissible in the court of
law. However, such evidence is only accepted if it is proven that it has been
voluntarily given by the accused, the authenticity of such waiver must be
examined in each case. For instance, it is essential that while furnishing
information of self-incriminating nature the accused is not doing it because of
ignorance of his rights. This is the primary reason that Supreme Court
reiterated the principle in this regard in D.K Basu’s Case[18]
and made it a compulsory requirement that any person accused of an offence be
expressly told that he is well within his rights to remain silent under Article
20(3) read with Section 161(2) of CrPC. If an accused chooses to remain silent,
he not committing any offence instead he just exercising his fundamental right
that has been bestowed upon him by the law of the land. In Kartar Singh v.
State of Punjab[19],
the right to be informed that an accused can remain silent was affirmed.
SELF-INCRIMINATION AND SCIENTIFIC
TESTS (NARCO-ANALYSIS AND DNA TEST)
The existence of
provisions against self-incrimination has sparked a debate among the
evidentiary value of scientific tests like Narco-Analysis, DNA Testing and
Brain mapping in the course of investigation. The admissibility of the results
of these tests has been under scrutiny since its very inception because of it
being directly violative of Article 20(3).
·
Narco Analysis-
Narco Analysis is a test where a drug in permissible amount is administered to
the accused in order to extract information from his subconscious mind where he
is not capable of fabricating the result. In Gobind Singh v. State of Madhya
Pradesh[20],
the Supreme Court expanded the purview of fundamental rights in order to
accommodate “mental state” of an individual as part of his right to “privacy”.
The Apex court further ruled that compelling an individual to extract
information from his life that he would like to keep to himself is outright
violation of Article 20(3) and Article 21. The admissibility and reliability of
Narco Analysis was dealt by Supreme Court extensively in the case of Selvi
v. State of Karnataka[21].
It was held that information dispensed during Narco Analysis and Polygraph
tests are neither voluntary nor conscious, therefore it amounts to testimonial
compulsion maybe not as a physical threat but as a mental compulsion and
attracts the protection of Article 20(3). It was further held that application
of these scientific tests is inhuman in nature and not only violates the
fundamental rights of the accused but also injures his dignity. This turned out
to be one of the landmark judicial pronouncements of Criminal Jurisprudence in
India, the Apex Court not only examined the concept but also laid down certain guidelines
in case of conducting of such tests. These are the guidelines provided by the
court-
·
The
consent of accused is essential and in case the accused consents to it then it
must be explained in the court of law by his advocate and the police.
·
The
consent of accused must be mandatorily recorded by Judicial Magistrate.
·
At
the time of Trial, the statement made by the accused will not be confidential
to the Magistrate, but it will be to the police.
·
All
details of the proceedings must be duly recorded.
·
DNA Test- The
Court of law is fairly divided on accepting evidence in the form of DNA Test
because it challenges the Right to Privacy and Right against
Self-Incrimination, however Supreme Court itself has held in a catena of
verdicts that Right to Privacy though is a fundamental right but it is not
absolute[22]. The
constitutional mechanism and the judicial interpretation together have made
this fundamental right subject to certain restrictions. In matters of adjudging
the relevance of DNA Test in a case is decided by striking a balance between
the rights of the accused and the procedure of investigation, which is
essential for fair trial in a criminal case and this was explained by the Apex
court in the case of K. Damayanthi v. State of Orissa and Ors[23].The
landmark verdict on DNA Test was delivered by Supreme Court in the case of Kanchan
Bedi v. Gurpreet Singh Bedi[24],
the conflict was regarding the parentage of an infant and an application was
filed by the mother to conduct DNA Test. The father opposed this contention
stating that it would be a violation of his fundamental right but Court ruled
in the favor of conducting the test and held that where parentage of a child is
in question, a direction to such effect is not violation of fundamental rights.
However, as a general of conducting DNA Test, the Supreme Court has laid down
few guidelines which are
as follows-
·
The
extent of involvement of the accused in a crime and nature of the offence is to
be taken into consideration before conducting such test.
·
Consent
of the accused to conduct such tests are of paramount importance and if the
accused refuses then the reason for such refusal must be duly recorded.
·
Other
essential factors to be taken into consideration for such test includes age,
mental condition and physical health status of the accused.
CONCLUSION AND SUGGESTIONS
Article 20(3) and Section
161 of CrPC are one of the major provisions highlighting the importance of
rights of accused in criminal cases, they are distinct in nature because they
act as a veil of protection against self-incrimination. These provisions extend
protection to people who are compelled against their will to dispense evidence
and it provides them with the right to remain silent if it will possibly result
in incriminating them. According to me these provisions are essential features
in criminal jurisprudence to ensure fair investigation and trial since it is
believed that a person is not guilty until proven otherwise beyond reasonable
doubt. These provisions not only empower the accused to make a fair
representation in the court of law, but it also prevents them from dispensing
forced testimonies which may result in their conviction. It has also been made
a general rule that the accused be informed that he has the right to remain silent
by the police, Supreme Court has extensively contributed to the development of
these laws by active judicial legislations on the subject. It has explored
various arenas and provided further insight on the approach to
self-incrimination. After an extensive research on the subject, I am inclined
in favor of these provisions that safeguard the interests of an accused during
a trial. An individual who is “accused” of committing a crime is innocent until
proven otherwise and this benefit of doubt is not always given to such persons
which makes it crucial that such laws be in place affirm Human Rights to an
accused. These are few of the suggestions I would like to give on the subject-
·
There
is a need to devise a system which facilitates both “right to silence” and
process to obtain information.
·
An
extensive law needs to be made which lays down specific directions regarding
resorting to scientific tests like DNA Test, Narco Analysis and Polygraph to
obtain information. Such law must also determine the reliability and
evidentiary value of the results of these tests instead of leaving it to
Judicial interpretation.
[1]. John Henry Wigmore, Wigmore on
Evidence (Little, Brown and Company, 4th edn, 1985).
[2]. Black’s Law Dictionary
(Thomas Reuters Legal, Canada, 11th edn, 2019).
[3]. AIR 1978 SC 1025.
[4]. AIR 1954 SC 300.
[5]. Article 20(3) of Constitution of
India.
[6]. AIR 1961 SC 29.
[7]. Supra note 3.
[8]. https://www.google.com/amp/s/blog.ipleaders.in/right-against-self-incrimination/amp/
(Visited on January 12, 2023).
[9]. Supra note 3.
[10]. (2011) 1 SCC 364.
[11]. Supra note 3.
[12]. AIR 1961 SC 1808.
[13]. AIR 1957 SC 211.
[14]. Supra note 11.
[15]. (2007) 1 SCC.
[16]. AIR 1939 PC 47.
[17]. (1997) 1 SCC 417.
[18]. Ibid.
[19]. AIR 1956 P H 122.
[20]. AIR 1975SC 1378.
[21]. AIR 2010 SC 1974.
[22]. Kharak Singh v. State of Uttar
Pradesh, AIR 1963 SC 1295.
[23]. 2004 Cr. L. J. 4003.
[24]. AIR 2003 Delhi 446.
Article Information
RIGHT AGAINST SELF INCRIMINATION AS A FUNDAMENTAL RIGHT
Authors: Aswathy Elsa Varghese
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/02/07
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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