By Kudrat Dutta Choudhary, Army Institute of Law, Mohali
“Editor’s note: Among the fundamental rights that have been guaranteed to us by the Indian Constitution, Article 20 espouses the ones that are specific to any person who is accused of an offence. It takes the spirit of natural justice and fair trial further. This project elaborates the stand of Indian judiciary specifically with respect to the Right against self-incrimination granted by Article 20(3) of the constitution. The author starts from the various elements in the language of the article as drafted by the legislature and then examines the current stand of the Supreme Court related to self-incrimination. Interestingly, the author puts his personal thought at the end of the paper.“
Clause (3) of Article 20[i] of the Indian Constitution, 1950 provides that “No person accused of any offence shall be compelled to be a witness against himself.” This principle is espoused on the maxim “nemo teneteur prodre accussare seipsum”, which essentially means “NO MAN IS BOUND TO ACCUSE HIMSELF.”
The Fundamental Right guaranteed under Article 20(3) is a protective umbrella against testimonial compulsion for people who are accused of an offence and are compelled to be a witness against themselves. The provision borrows from the Fifth Amendment of the American Constitution which lays down that, “No person shall be compelled in any criminal case to be a witness against himself”, same as mentioned in the Constitution of India embodying the principles of both English and American Jurisprudence. This libertarian provision can be connected to an essential feature of the Indian Penal Code based on the lines of Common Law that, “an accused is innocent until proven guilty” and the burden is on the prosecution to establish the guilt of the accused; and that the accused has a right to remain silent which is subject to his much broader right, against self-incrimination.
The tendency of Indian legal system manifests scepticism of the police system. This is the reason confessions of an accused is only admissible if recorded by a Magistrate in accordance with an elaborate procedure to ensure that they are made voluntarily[ii]. Protection is also accorded by the provisions of The Indian Evidence Act[iii]. This protection is available to every person including not only individuals but also companies and incorporated bodies.[iv]
This clause gives protection only if the following ingredients are present:
- It is a protection available to a person accused of an offence;
- It is a protection against compulsion to be a witness against oneself; and
- It is a protection against such “Compulsion” as resulting in his giving evidence against himself.
PERSON ACCUSED OF AN OFFENCE
A person accused of an offence means a “person against whom a formal accusation relating to the commission of an offence has been levelled, which may result in prosecution”. Formal accusation in India can be brought by lodging of an F.I.R or a formal complaint, to a competent authority against the particular individual accusing him for the commission of the crime.
It is only on making of such formal accusation that Clause (3) of Article 20 becomes operative covering that person with its protective umbrella against testimonial compulsion. It is imperative to note that, “a person cannot claim the protection if at the time he made the statement, he was not an accused but becomes an accused thereafter.” Article 20 (3) does not apply to departmental inquiries into allegations against a government servant, since there is no accusation of any offence within the meaning of Article 20 (3).[v]
Self-incrimination has been extensively discussed in the case of Nandini Satpathy v. P.L Dani[vi]. In this case, the appellant, a former Chief Minister of Orissa was directed to appear at Vigilence Police Station, for being examined in connection to a case registered against her under the Prevention of Corruption Act, 1947 and under S. 161/165 and 120-B and 109 of The Indian Penal Code, 1860. Based on this an investigation was started against her and she was interrogated with long list of questions given to her in writing. She denied to answer and claimed protection under Article 20(3). The Supreme Court ruled that the objective of Article 20(3) is to protect the accused from unnecessary police harassment and hence it extends to the stage of police investigation apart from the trial procedure.
Further, this right to silence is not limited to the case for which the person is being examined but also extends to other offences pending against him, which may have the potential of incriminating him in other matters. It was also held that the protection could be used by a suspect as well.
PROTECTION AGAINST COMPULSION TO BE A WITNESS
The protection contained in Article 20(3) is against compulsion “to be a witness” against oneself. In M.P Sharma v. Satish Chandra[vii], the Supreme Court gave a wide interpretation of the expression “to be a witness” which was inclusive of oral, documentary and testimonial evidence. The Court also held that the protection not only covered testimonial compulsion in the Court room but also included compelled testimony previously obtained from him.
To be a witness —- Furnishing Evidence
In M.P Sharma’s case it was held that, Article 20 (3) was directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in the Court.
It follows that giving thumb impressions, or impression of foot or palm or fingers or specimens of writings or exposing body for the purpose of identification are not covered by the expression ‘to be a witness’ under Article 20(3).
The Court distinguished ‘to be a witness’ from ‘furnishing evidence’[viii], and interpreted the former to mean imparting knowledge in respect of relevant facts by an oral statement or statement in writing made or given in court or otherwise. The latter included production of documents or giving materials which might be relevant at a trial to determine the guilt or innocence of the accused.
Thus, self-incrimination in context of Article 20(3) only means conveying information based upon personal knowledge of the person giving information. But where an accused is compelled to produce a document in his possession which is not based on the personal knowledge of the accused, in such a case there is no violation of Article 20(3).
Searches & Seizures
In V.S Kuttan Pillai v. Ramakrishnan[ix], the Supreme Court held that search of the premises occupied by the accused without the accused being compelled to be a party to such a search would not be violative of the constitutional guarantee enshrined in Article 20(3).
Section 27 of The Indian Evidence Act, 1872
S.27 of the Indian Evidence Act, 1872, provides that during investigation when the discovery of evidence by the police is led by some fact that was disclosed by the accused then so much of the information as relates to the facts discovered, may be proved irrespective of the fact whether that information amounts to a confession of not. It was held that the provisions of this section are not prohibited within the scope of Article 20(3) unless compulsion had been used in obtaining the information.
COMPULSION TO GIVE EVIDENCE “AGAINST HIMSELF”
The protection under Article 20(3) is available only against compulsion of the accused to give evidence against himself. Thus, if the accused voluntarily makes an oral statement or voluntarily produces documentary evidence, incriminatory in nature, Article 20(3) would not be attracted.
The term compulsion under Article 20(3) means ‘duress’. Thus, compulsion may take many forms. If an accused is beaten, starved, tortured, harassed etc. to extract a confession out of him/her then protection under Article 20(3) can be sought. A case at hand would be Mohd. Dastagir v. State of Madras[x] where the appellant went to the residence of the Deputy Superintendent of Police and handed him an envelope. On opening the envelope, the DSP found cash in it, which meant that the appellant had come to offer bribe to the officer. The DSP refused it and asked the appellant to place the envelope and the notes on the table, and he did as told, after which the cash was seized by the Police.In this case the Supreme Court held that, the accused wasn’t compelled to produce the currency notes as no duress was applied on him. Moreover the appellant wasn’t even an accused at the time the currency notes were seized from him. Hence in this case the scope of Article 20(3) was not applicable.
Tape Recording of statements made by the accused
If statements recorded are made by the accused, without any duress, with or without his knowledge are not hit by Article 20(3).
SCIENTIFIC TESTS – INVOLUNTARY?
The issue of involuntary administration of certain scientific techniques, like narco-analysis tests, polygraph examination, etc. for the purpose of improving investigation efforts in criminal cases has gained a lot of attention. For a long time, there was a debate about whether such tests were violative of Article 20(3) or not and the same issue were brought to the Supreme Court in the case of Selvi v. State of Karnataka[xi].
In this case the Hon’ble Chief Justice, Justice K.G Balakrishnan spoke of behalf of the Apex Court, and drew the following conclusions:
- The right against self-incrimination and personal liberty are non-derogable rights, their enforcement therefore is not suspended even during emergency.
- The right of police to investigate an offence and examine any person do not and cannot override constitutional protection in Article 20(3);
- The protection is available not only at the stage of trial but also at the stage of investigation;
- That the right protects persons who have been formally accused, suspects and even witnesses who apprehend to make any statements which could expose them to criminal charges or further investigation;
- The law confers on ‘any person’ who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question would be inculpatory or exculpatory;
- Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings;
- Compulsory narco-analysis test amounts to ‘testimonial compulsion’ and attracts protection under Article 20(3);
- Conducting DNA profiling is not a testimonial act, and hence protection cannot be granted under Article 20(3);
- That acts such as compulsory obtaining signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration;
- That subjecting a person to polygraph test or narco-analysis test without his consent amounts to forcible interference with a person’s mental processes and hence violates the right to privacy for which protection can be sought under Article 20(3);
- That courts cannot permit involuntary administration of narco-tests, unless it is necessary under public interest.
ANALYSIS AND CONCLUSION
Article 20 (3), invokes protection against self-incrimination and gives an accused the right to remain silent over any issue which tends to incriminate him. This protection by the Indian Constitution is also extended to suspects. Article 20 clause 3, has been carefully crafted to protect the accused from further self-incriminating himself only if any statement of his might result in prosecution. For the benefit of the Courts, the Supreme Court has distinguished between the terms “witness” and “furnish evidence”, the former including furnishing statements from one’s own knowledge and the latter referring to simply presenting documents required by the court under which protection under Article 20(3) cannot be sought.
This article also stretches its privileges to a person who is compulsorily being made a witness and also covers searches and seizures wherein, an accused or the person being searched is under no obligation to be a part of the search. If any confession or a mere statement is made based on which some material corroboration is found then that statement cannot be protected under Article 20(3). Under the law, an accused cannot be tortured to make a statement or a confession and no duress can be exercised in order to obtain some information out of him, in such a case the statement would be void and the privileges under Article 20(3) would be applicable. Narco-analysis tests, polygraph analysis etc. which refer to involuntary administration of mental processes, are considered violative of Article 20(3) and can only be done in a few cases as it disrupts the right to privacy.
But with the advancement in medical sciences, the certainty of such scientific tests has increased and the author thinks that they provide an effective tool to furnish evidence which help in speedy disposal of cases. By balancing the harmony between the protective rights and the need for speedy disposal.
Edited by Shristi Banerjee
[i] Article 20 of the Indian Constitution, 1950 : Protection in respect of conviction of offences
[ii] S. 162-164 of the Criminal Procedure Code
[iii] S. 24-26 of the Indian Evidence Act, 1872, exception being only provided in S.27 which states that,“ Information to discovery on the basis of statement made by such an accused is admissible irrespective of whether it was or was not improperly or illegally obtained.”
[iv] State of Maharashtra v. N.E & P. CO., AIR 1951 Bom 242
[v] Srikant Upadhya v. Union of India, AIR 1963, Pat. 38
[vi] AIR 1978 SC 1025
[vii] AIR 1954 SC 300
[viii] P.U.C.L v. Union of India, AIR 2004 SC 456
[ix] AIR 1980 SC 185
[x] AIR 1960 SC 756
[xi] AIR 2010 SC 1974