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Title An Inquiry into article 20(3): the right against Self-Incrimination
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Article by Saurav Gupta
Category Law Student
Content

An Inquiry into article 20(3): the right against Self-Incrimination

Article 20 (3) reads as:

“No person accused of any offence shall be compelled to be a witness against himself.”

“The Article in the constitution of India dealing with protection in respect of conviction for offences is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic antechamber of a police station. And in the long run, that investigation is the best which uses stratagems least that policeman deserves respect who gives his fists rest and his wits restlessness.”- Halsbury’s Laws of India

Self-incrimination

Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.

The right to remain silent is a legal right of any person subjected to police interrogation or summoned to go to trial in a court of law. This right is recognized, explicitly or by convention, in many of the world's legal systems. The right covers a number of issues centered on the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a trial, hearing or any other legal proceeding.

 

Historical Development of the Right

Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions. The legal shift from widespread use of torture and forced confession dates to turmoil of the late sixteenth and early seventeenth century in England. Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was taken for guilty. Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly employed to compel "cooperation."This created what has been termed the ‘cruel trilemma’ whereby these accused faced the prospect of one of perjury (which was believed to be a mortal sin) (if they lied under oath to protect themselves), harsh punishment for contempt of court (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honor their oath).Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with thirteen demands, of which the right against self-incrimination (in criminal cases only) was listed at number three. These protections were brought to the American shores by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights. The evidence of that is to be seen in the near-identical systems of criminal law still in operation in those nations that inherited the English system - including the US. The two different but diverging paths along which these rights evolved and operate in Anglo-American jurisprudence (one through rights expressed in the Constitution, the others in Acts of Parliament specifying rights or protections at common law) can be seen today in Commonwealth countries like Australia and New Zealand, where police officers are still required at common law to issue "Miranda-style rights" (but which are completely unrelated to the US Miranda warning ruling) and inform an arrested person that they do not have to answer any questions but that whatever they do say (or do) can be used in court as evidence. They must also ask an arrested person whether they understand these rights. Any failure to do so can jeopardise a criminal prosecution. The right to counsel, which also became increasingly entrenched in the US following the American Revolution, gave defendants a practical method of mounting a defense while remaining silent and the development of the modern police force in the early 1800s opened up the question of pre-trial silence for the first time. The key American case of Bram v. United States paved the way for the right to be extended to pre-trial questioning. The practice of warnings became established in the US and elsewhere following the case of Miranda v. Arizona in 1966.

International Charters

Under article 14.3(g) of the U.N. Covenant on Civil and Political Rights, 1966, provides:

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(g) Not to be compelled to testify against himself or to confess guilt"

 

Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 provides: " in the determination of his civil rights and obligation, or of any criminal charges against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." the right to remain silent of an accused was considered by the European Court, while considering the scope of the above article.  It was held: "Although not specifically mentioned in article 6 of the convention, there can be doubt that they remain silent under the police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under article 6.[1] Whether the drawing of adverse influence from the accused’s silence infringes article 6 is a matter to be determined in the light of all circumstances of the case, having particular regard to the situation where inferences may be drawn the weights attached to them by national courts in their assessment of evidence and degree of compulsion inherent in the situation. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriage of justice and to secure the aim of article 6." What is at stake in the present case is whether the immunities are absolute in the sense that the exercise by an accused of the right of silence cannot under any circumstances be used against him at trial or alternatively whether informing him in advance that under certain conditions, his silence may be used, is always to be regarded as’ improper compulsion.’In appropriate cases, the judge should direct the jury as to the proper limits of the inference of silence. The Judicial Studies Board has provided a specimen direction, which has been accepted by the European Court of Human Rights.[2] Failure to give a valid direction, does not, however, render a conviction automatically unsafe.A defendant in a criminal trial may choose whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries.

Although certain financial and regulatory investigatory bodies have the power to require a person to answer questions and impose a penalty if a person refuses, if a person gives evidence in such proceedings, the prosecution cannot adduce such evidence in a criminal trial.[3]

 

 

Development of the right through the fifth amendment of the US Constitution

 

The fifth amendment of the US Constitution provides inter alia:

 

"No person........shall be compelled in any criminal case, to be a witness against himself."

 

By judicial interpretation, the above provision has been given a very wide connotation.  The privilege against self-incrimination has been held to apply to witnesses as well as parties in proceedings civil and criminal.  It covers documentary evidence and oral 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.

The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves. To "plead the Fifth" is a refusal to answer a question because the response could form self incriminating evidence. Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.The Founding Fathers drafted the Fifth Amendment to forestall the use of torture and other means of coercion to secure confessions. The founders believed that coerced confessions not only violate the rights of the individual being interrogated but also render the confession untrustworthy. Once a confession has been coerced, it becomes difficult for a judge or jury to distinguish between those defendants who confess because they are guilty and those who confess because they are too weak to withstand the coercion. Irrelevance is impermissible and relevance is illicit, but when relevant questions are loaded with guilty inference in the event of an answer being supplied, the tendency to incriminate springs into existence.
This right enables a defendant to refuse to testify at a criminal trial and "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings", this was held in the case of Lefkowitz v. Turley.[4]

At the same time, the right against self-incrimination is also narrower than the Fifth Amendment suggests. The Fifth Amendment allows the government to force a person to be a witness against herself or himself when the subject matter of the testimony is not likely to incriminate the person at a future criminal proceeding. Testimony that would be relevant to a civil suit, for example, is not protected by the right against self-incrimination if it does not relate to something that is criminally inculpatory. By the same token, testimony that only subjects a witness to embarrassment, disgrace, or opprobrium is not protected by the Fifth Amendment.
 

The case of Miranda v Arizona (1966)

During the 1960s, a movement which provided defendants with legal aid emerged from the collective efforts of various bar associations. In the civil realm, it led to the creation of the Legal Services Corporation under the Great Society program of Lyndon Baines Johnson. Escobedo v. Illinois[5], a case which closely foreshadowed Miranda, provided for the presence of counsel during police interrogation. This concept extended to a concern over police interrogation practices, which were considered by many to be barbaric and unjust. Coercive interrogation tactics were known in period slang as the "third degree."

In Miranda v. Arizona[6] (1966) the United States Supreme Court ruled that both inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them. Chief Justice Earl Warren, delivered the opinion of the Court, ruling that due to the coercive nature of the custodial interrogation by police (Warren cited several police training manuals which had not been provided in the arguments), no confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless a suspect had been made aware of his rights and the suspect had then waived them. Thus, Miranda's conviction was overturned.

 

“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in the court of law; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”

 

The Court also made clear what had to happen if the suspect chose to exercise his rights:

 

“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.”

Miranda rule applies to any situation in which a person is both held in "custody" by the police, which means that he is not free to leave, and is being "interrogated," which means he is being asked questions that are designed to elicit an incriminating response. A person need not be arrested or formally charged for Miranda to apply.The right against self-incrimination is not absolute. A person may not refuse to file an income tax return on Fifth Amendment grounds or fail to report a hit-and-run accident. The government may compel defendants to provide fingerprints, voice exemplars, and writing samples without violating the right against self-incrimination because such evidence is used for the purposes of identification and is not testimonial in nature, this was held in United Statesv. Flanagan.[7] Despite the dubious grounds for the distinction between testimonial and non-testimonial evidence, courts have permitted the use of videotaped field sobriety tests over Fifth Amendment objections.When the state wants or needs the testimony of individuals who assert their privilege against self‐incrimination, particular inducements can be exercised. These include two grants of immunity, transactional and use. The former guarantees that the witness will not be prosecuted for anything that transacts from his or her testimony, while the latter protects the witness against prosecutorial use of any evidence drawn from his or her testimony.In the U.S., the only way for one to protect one's rights fully is to refuse answering any questions beyond giving one's name and identifying papers if requested and to refuse giving consent to anything (such as a search) prior to one's arrest, such circumstance has come about due to the contradictions and conflict of the Raffel v. United States Case.[8]

 

In India the privilege against self-incrimination is the fundamental Canon of common law criminal jurisprudence.  The characteristic features of this principle are:

 

1. That the accused is presumed to be innocent

2. that is for the prosecution to establish his guilt

3. That the accused need not make any statement against his will

 

These propositions enmate from an apprehension that if compulsory examination of an accused were to be permitted then force and torture may be used against him to entrap him into fatal contradictions.  The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.

 

 

Difference between the 5th Amendment of the American Constitution and Article 20(3) of the Constitution

The present clause follows the language of the fifth amendment of the American Constitution, but the rules laid down in our constitution are narrower than the American rule as expanded by interpretation.

1. While, notwithstanding the words ' criminal case' in the fifth amendment to the American Constitution, it has been held to extend to incriminating statements in civil proceedings, proceedings before legislative committees or tribunals, the words 'accused of an offence' in the present clause make it clear that the privilege under our constitution is confined to an accused in a criminal proceeding, and does not apply to civil proceedings, even though a criminal prosecution may arise out of such proceedings.[9]

 

2. While both in the US as well as in England, not only the accused but also any witness to a proceeding is protected from answering incriminating questions, a mere witness has no constitutional protection under the present clause of our constitution.  The article protects a person accused of an offence and not those questioned as witnesses.

 

3. The words other than’ accused of an offence’ being identical with those of the fifth amendment of the American constitution, the American interpretation has been generally followed in the interpretation of these other words in these clause. But the words ‘accused of an offence’ have been interpreted in such a manner as to narrow down the scope of protection in India than that in the U.S. not only as respects the proceedings in which the protection is available, but also as to the stage from which it is available in a criminal proceeding. The Indian guarantee protects the individual only if he stands as an accused in that very proceeding where he is compelled to testify, on the other hand the American immunity not only protects a person from involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.

 

The main object of the constitution of India is to give protection to an accused person not to be compelled to incriminate himself and that is in consonance with the basic principles of criminal law accepted in our country that an accused person is entitled to rely on the presumption of innocence in his favor and may not be compelled to swear against himself.[10]

 

Who may Claim the Right under Article 20(3)

“The Guarantee against self-incrimination is of great importance, as it establishes the primacy of law over the passions of man”- Halsbury’s Laws of India

The right is available to citizens only and not to an alien or a foreigner. A foreigner is not a citizen of India and he may not claim the right against self-incrimination provided under article 20(3). Similarly a corporation or company may not claim protection under the said article, because they are not natural persons. Citizens under the constitution of India mean only Natural Persons and not legal persons such as corporations and companies.

 

Types of incriminating evidence covered by art.20 (3)

 

The privilege applies to ‘testimonial compulsion’. It no doubt covers oral testimony by an accused. But judicial opinion has fluctuated on the question whether Art 20(3) covers something more besides oral evidence.

In the case of M.P. Sharma v. Satish Chandra[11] the Supreme Court taking a broad view of Art. 20(3) expanded its scope it laid down that, a person can be a witness not merely by giving oral evidence but also producing documents or making intelligible gestures as in the case of a dumb witness. The phrase ‘to be a witness’ in Article 20(3), the court ruled, meant nothing more than ‘to furnish evidence’ and this could be done through lips, or by production of a thing or document (evidence) or in any other mode.[12]  Every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person as opposed to the negative attitude of silence or submission on his part.

 

The Supreme Court considered the matter in State of Bombay v. Kathi Kalu Oghad[13]. A bench of eleven judges was constituted to consider the matter. The main question involved was whether Art. 20(3) is violated when the accused is directed to give his specimen hand writing, or signature, or the impression of his palms and fingers. The court now ruled that, self-incrimination must mean conveying information based upon the ‘personal knowledge’ of the person giving information and covers only ‘personal testimony’ which must depend upon his volition.  The court emphasized,that it is as much necessary to protect an accused person against the being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers of bringing offenders to justice. The court commented regarding the documents in possession of the accused, that if a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the court to produce that document.

Several types of evidence is excluded from the purview of Art. 20(3). This is done with a view to draw a balance between the exigencies of investigation of crimes and the need to safeguard the individual from being subjected to third degree methods. Certain types of evidence which are not protected under Art. 20(3) include:

  1. Art 20(3) does not include signature, thumb impressions, specimen handwriting, or exposing parts of the accused’s body for the purpose of identification.[14]
  2. The right is not violated when the witness is said to stand up and show his face for identification.[15]
  3. The symptoms observed by the doctor could not be regarded as evidence obtained from the accused by compulsion.[16]
  4. Compulsory taking of urine and blood samples from an accused.[17]
  5. If the self-incriminatory information has been given by an accused person without any threat that will be admissible in evidence.[18]
  6.  Admission of tape-recorded evidence against the accused does not violate Art 20(3) when the conversation on his part was voluntary and there was no compulsion.[19]
  7. The mere asking of a police officer investigating a crime against a certain individual.
  8. Documents found on the premises can be seized irrespective of the fact that they contain certain statements made by the accused upon his personal knowledge and which when proved may have tendency to incriminate him.[20]

Till 1955, in India, an accused was not a competent witness and could not testify on his behalf even if he wanted to do so. S. 342A added to the CrPc. In 1955 permits the accused to offer himself as a witness. It, however, lays down that the accused’s failure to give evidence is not to be the subject of any comment by any party or court, or is not to raise any presumption against him. No adverse inference can thus be drawn from the failure of the accused to testify.[21]

 

Essential Ingredients of the Article

Compulsion

The court lay down in the case of Mohd. Dastigir v. State of Madras[22] that before article 20(3) could come into play, two facts must be established:

  1. The Individual concerned was a person accused of an offence;
  2. That he was compelled to be a witness against himself.

 ‘Compulsion’ is duress; compulsion has to be physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process so as to render the making of the statement involuntary and, therefore, extorted. If the police obtain the statement by employing third degree methods, the statement would be barred under the Art. 20(3).[23] Whether or not compulsion was exercised in obtaining the statement would be determined by the court on weighing the facts and circumstances disclosed in the evidence before it.[24]

In Nandini Sampathy[25], Iyer, J., advocated an expansive interpretation of the phrase ‘compelled testimony’. According to him, it is evidence procured “not merely by physical threats or violence but also by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, over-bearing and intimidatory methods and the like.” Also in this case it was laid down that the right to silence is not limited to the case for which he is examined, but extends to the accused with regard to other offences pending or imminent which may deter him from voluntary disclosure of incriminatory matter. However this article is not violated when accused volunteers evidence against himself. Since the article only gives a privilege, the accused may waive it if he so likes.[26] However, instances of frequent threat of prosecution if there is failure to answer may take the complexion of undue pressure, but when a trap is laid and the accused talks, then there is no element of duress.[27] In a situation in which evidence is being collected without any manner of compelling the accused, or asking him to be a party to the collection thereof, anything recovered during such search which may provide incriminating evidence against the accused cannot be styled as compelled testimony. In case of prosecution of the accused it may be very necessary for the accused to enter the witness-box for substantiating his defense, but this is no reason for saying that the criminal trial compels him to be a witness against himself in violation of Art.20(3). Compulsion in the context of Art. 20(3) must proceed from another person or authority. The appellant is not compelled to be a witness if he voluntarily gives evidence in his defence. The protection of Art.20(3) does not mean that the accused need not give information regarding matters which do not tend to incriminate him.[28]

 

 

Person accused of an offence

The privilege under article 20 (3) is available not only to an individual, but even to an incorporated body, if “accused of an offence.” [29]

In order to avail of the protection of the article against self-incrimination, a condition to be fulfilled is that the person claiming the protection should be one accused of an offence at the time he makes a statement.  This article does not apply if the person is not an accused at the time he makes a statement but becomes an accused by the time when later the statement made by him is sought to be proved.  This means a person against whom a formal accusation relating to the commission of an offence has been leveled and although the actual trial may not have commenced as yet, but which in normal course may result in his prosecution.

 

The Supreme Court has stated in Raja Narayanlal[30]: " for invoking the constitutional right against testimonial compulsion guaranteed under article 20(3), it must appear that for a formal accusation has been made against the party pleading guarantee and that it relates to commission of an offence which the normal course may result in prosecution." when, therefore, a person claims the benefit of the privilege, the question has to be asked whether he has been accused of any offence.  A person cannot claim the privilege it at the time he made the statement he was not an accused but became an accused thereafter (Oghad case). To answer the question whether a person is accused or not a person is accused at a particular time, it is necessary to make a reference to the nature and scope of the proceedings, the nature of the accusations and its probable consequences. Accusing a person of committing a crime in the F.I.R, or any formal complaint before a magistrate amounts to formal accusation and the person concerned can claim the privilege.[31] The privilege against self-incrimination is available even in the pre-trial stage, i.e., during the course of police investigations if the person concerned can be considered as an accused.

 

 

 

Stage from which the protection is available

 

The proposition formulated by the Supreme Court in the case of Sharma v. Satish, which is adhered to in subsequent decisions, the two ingredients may be analysed as follows:

 

A. to a person against whom a formal accusation has been made,

The clause does not require ' formal' accusation by the issue of process by the court.  The immunity would commence from the moment a person is named in the FIR, on a complaint which would in the normal course with that in prosecution. To enable the protection the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough, that he must become an accused; any time after the statement has been made.[32]

 

B. if such accusation relates to the commission of an offence which in the normal course may result in prosecution,

Article 20 (3) will be attracted only if the proceedings 'start with an accusation’[33], and the person who seeks it protection was already an accused person when he was compelled to make the statement.[34]

In the Nandini case, K. Iyer, J., delivering the court’s decision considered the question whether art. 20(3) apply only to a person ‘accused’, or also to a ‘suspect’, who is not formally accused when the police are holding an investigation against him. The case-law hitherto, viz., Oghad and Maneck Pheroze had held that a suspect was not an accused and so Art.20 (3) would not apply to him. But, the judge in Nandini Case expressed a different opinion on this issue he ruled that article against self-incrimination ought to extend to police investigation also since enquiries into criminal statutes with quasi-criminal investigations are often accusatory in nature and are sure to end in prosecution, if the offence is grave and evidence gathered is good. To deny the protection of Art.20 (3) to a suspect because the enquiry is preliminary and may possibly not reach the court is to erode the substance of Art.20 (3) is not confined merely to a court trial. It extends to “any compulsory process for production of evidentiary documents” which is reasonably likely to support a production against him. Not only compelled testimony previously obtained is excluded but “the preventive blow falls on pre-court testimonial compulsion.” A person is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation underway is not with reference to that. Further the judge held that, the police must invariably warn, and record the fact, “about the right to silence against self-incrimination; and where the accused is literate take his written acknowledgement.” The court has also stated that the police must inform the accused that he has a right to call a lawyer before answering to any of their questions. These rulings are in line with the Miranda system followed in the U.S.

In order to enable a citizen to invoke the protection of the article of the constitution of India providing for protection in respect of conviction for offences, there must have been both prosecution and punishment in respect of the same offence. The words ‘prosecuted and punished’ are to be taken not distributively so as to mean prosecuted and punished. Both the factors must coexist in order that the operation of the clause may be attracted. It is immaterial for the constitution of India that the prosecution was before one authority and punishment was inflicted by another. [35]

 

Waiver of the Fundamental Right

U.S.

The principal as to waiver of statue rights has been extended to fundamental rights as well, to hold that while rights which have been created in the interests of the public or in pursuance of public policy cannot be waived, a right which has been created exclusively for the benefit of an individual[36], who is affected or likely to be affected, may be waived by him.  Thus, it has been held that the following rights secured by different amendments of the Bill of Rights are capable of being waived by the individuals who are entitled to claim them.  The privilege and against self-incrimination may be waived by voluntarily answering the question or by failure to claim the privilege at the trial.[37]

Defendants may waive their Fifth Amendment right to remain silent. However, the government must demonstrate to the satisfaction of the court that any such waiver was freely and intelligently made. The Supreme Court ruled that a confession that was obtained after the suspect had been informed that his wife was about to be brought in for questioning was not the product of a free and rational choice, this was held in the case of Rogers v. Richmond[38]. It also held that a statement was not freely and intelligently made when a defendant confessed after being given a drug that had the properties of a truth serum; this was held in the case of Townsend v. Sain.[39] In Mitchell v. United States[40],the Supreme Court held that a person who pleads guilty to a crime does not waive the self-incrimination privilege at sentencing. The Court acknowledged that it is well established that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the Privilege against Self Incrimination when questioned about the details. However, the Court found a significant difference between the waiver of the right against self-incrimination in a trial and in a sentencing hearing. The concerns, which justify the cross-examination when the defendant testifies, are absent at a plea hearing. Treating a guilty plea as a waiver of the self-incrimination clause would allow prosecutors to indict a person without specifying the quantity of drugs at issue, obtain a guilty plea, and then put the defendant on the witness stand to tell the court the quantity. Such a scenario would make the defendant "an instrument of his or her own condemnation." This would undermine constitutional Criminal Procedure, turning an adversarial system into an inquisition.

 

India

Article 20(3) of our constitution is not attracted at all, and no question of waiver can possibly arise, whether the ingredients of the clause are not satisfied e.g., where the accused is not compelled on the evidence is not used against him.  Hence, where the accused volunteers to give evidence of his own choice gives evidence in lieu of an advantage, such an offer of pardon, there is no compulsion and no violation of the clause at all.[41]  The privilege which can be waived is afforded by the fact that unless the accused can take the stand and waive his right the whole object of his going into the box to prove his innocence would be defeated.

 

 

Civil Proceedings

The protection under article 20 (3) is available only in criminal proceedings or proceedings of criminal nature before a court of law or other tribunal before which a person may be accused of an offence in section 3(38) of the General clauses act, that is, an act punishable under the penal code or a special or local law.  The protection of article 20(3) would not apply to parties and witnesses in civil proceedings other than criminal.[42]

 

The Degree of Admission of Truth Finding Tests in Court

The search for effective aids to interrogation is probably as old as man’s need to obtain information from an uncooperative source and as persistent as his impatience to shortcut any tortuous path. In the annals of police investigation, physical coercion has at times been substituted for painstaking and time consuming inquiry in the belief that direct methods produce quick results. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the Narco Analysis Test. Such tests are a result of advances in science but they often raise doubts regarding basic human rights and also about their reliability. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions.It also goes against the maxim Nemo Tenetur se Ipsum Accusare that is, ‘No man, not even the accused himself cannot be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of’. If the confession from the accused is derived from any physical or moral compulsion (be it under hypnotic state of mind) it should stand to be rejected by the court. The main issue thus is the question of its admissibility as a scientific technique in investigations and its ultimate admissibility in court as forensic evidence.The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution.In the CrPC, the legislature has guarded a citizen’s right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states that every person “is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which, would have a tendency to expose that person to a criminal charge, penalty or forfeiture”.

A brief outline of the truth finding tests is explained below:

Narco Analysis Test:A person is able to lie by using his imagination. In the narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime. The subject is not in a position to speak up on his own but can answer specific but simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.He subject is then interrogated by the investigating agencies in the presence of the doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence. This procedure is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.

Polygraph test: The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and behavioral changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie. All these reactions are corroborated with other evidence gathered. 

P300 or Brain Mapping Test: Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect’s brain would not have stored or recorded certain information, which an actual perpetrator’s brain would have stored.

The leading case that has guided precedent in our country with respect to narco-tests has been U.S v. Solomon[43] where the United Sates Supreme Court held used expert witnesses to establish that adequate safeguarding against the unreliability of narco-tests was possible; on the whole however, while narco-tests were held as unreliable, their acceptance as an investigative technique was upheld. The question of compulsion was answered by the Indian Supreme Court in Dinesh Dalmia v. State of Maharashtra[44] wherein it said that consent played no role in court-ordered narco-tests, this case however said that while subjecting a person to narco-tests was compulsive, the revelations made are entirely voluntary; as such it has been held to widespread criticism by the proponents of this right. The Bombay High Court, in a significant verdict in the case of

Ramchandra Reddy and Others v State of Maharashtra, upheld the legality of the use of P300 or Brain Mapping and narco analysis test. The court also said that evidence procured under the effect of narco analysis test is also admissible.

 

Conclusion

The Right against Self-Incrimination guaranteed in the Constitution of India, though clear in its wording, owing to equally compelling factors such as the State’s interest in Preservation of law and order, has to generate a set of concrete workable principles that a court can use to decide and defend the outcomes of particular cases. The maxim Nemo Tenetur Seipsum accusare meaning ‘no man is bound to accuse himself’ had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogation of accused persons. A proper analysis of the this protection, and its implications on the system of criminal justice vis-à-vis providing exceptions to this Right and its implications on individual liberties will demand a very objective understanding of the ethical, scientific and legal aspects and Self-Incrimination. It should be the duty of the state to ensure that the rights of its citizens are protected and every individual gets an opportunity to a fair trial and objective application of laws which provide an opportunity for creating a society which balances the clash of interests at different levels.The individual-State balance can be reached only by empowering the State in its endeavour of public order and control of crime and at the same time placing clear and distinct limits upon such power. A system of accountability and dispense of information giving force the public’s ‘Right to Know’ are indispensible features of such limits. At the same time, standards of quality, secrecy and security need to be maintained.

 

Bibliography

Books

V.N. Shukla’s Constitution of India, Mahendra P. Singh, 11th edition, Eastern Book Company Publications

 

Article

ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS – BLENDING THE MUCH AWAITED, Gautam Swarup, NALSAR

 

Is Narco Analysis a Reliable Science? – Present Legal Scenario In India, Subhojyoti Acharya, Department of Law, Calcutta University

 

Websites

Wikipaedia.org

Chestofbooks.com

Answers.com (West Law Encyclopaedia)

Britannicaonline.com

URLs

<a href="http://law.jrank.org/pages/10135/Self-Incrimination.html">Self-Incrimination - Further Readings</a>



[1] Murrayv. UK, (1996) 22 EHRR 29, at para. [45]

[2] Beckles v. UK

[3] Youth Justice and Criminal Evidence Act 1999, s. 59 and Sch. 3, which was the response to Saunders v. UK, , (1996) 23 EHRR 313

[4] 414 U.S.[1973]

[5] 378 U.S. 478 (1964)

[6] 384 U.S. 436 (1966)

[7] 34 F.3d 949 [10th Cir. 1994]

[8] 271 U.S. 494 (1926)

[9] Narayanlal v. Maneck AIR 1961 SC 29

[10] Joseph v. Narayana AIR 1964 SC 1552

[11] AIR 1954 SC 300

[12] Sharma v. Satish

[13] AIR 1961 SC 1808

[14] State of Uttar Pradesh v. Boota Singh, AIR 1978 SC 1770

[15] Pakhar Singh v. State of Punjab, AIR 1958 Punj 204.

[16] In Re Palani Goundan, AIR 1957 Mad 546.

[17] Subbaya Gounder v. Bhoopala, AIR 1959 Mad 396.

[18]  Md Dastagir v. State of Madras, AIR 1960 SC 756

[19] R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157

[20] V.S. Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 185.

[21] T.G. Gaokar v. R.N. Shukla, AIR 1968 SC 1050

[22] AIR 1960 SC 756

[23] Ghazi v. State of U.P. AIR 1966 All 142

[24] State of Bombay v. Kathi Kalu Oghad

[25] Nandini Satpathy v. P.L. Dani,, AIR 1978 SC 1025

[26] Laxmipat Choraria v. State of Maharashtra AIR 1968 SC 938

[27] Yusufalli v. State of Maharastra, AIR 1968 SC 147

[28] R.B. Shah v. D.K. Guha, AIR 1973 SC 1196

[29] M.P. Sharma vs. Satish , AIR 1954 SC 300

[30] Raja Narayanlal Bansilal v. Maneck Firoz Mistry, AIR 1961 SC 29

[31] R.B.Shah v. D.K. Guha, AIR 1973 SC 1196

[32] Balkrishan v. State of Maharashtra, (1980) 4 SCC 600.

[33] State of Bombay v. Kathi Kalu, AIR 1961 SC 1808

[34] Joseph v. Narayan, AIR 1964 SC 1552

[35] S A Venkataraman v Union of India AIR 1954 SC 375.

[36]Pierce v. Somerset, (1898) 171 US 641

[37] Emspark v. U.S., (1955) 349 US 190

[38] 365 U.S. 534 (1961)

[39] 372 U.S. 293 (1963)

[40] 526 U.S. 314, (1999)

[41] Cf Das C.J., & Subba Rao J. in Basheshar v. I.T. Commr., AIR 1959 SC 149

[42] Shayam Sunder Chowkhani v. Kajal Kanti Biswas AIR 1999 Gau 101

 

[43] 753 F.2d.1522 (9th Cir. 1985)

[44] Cri LJ (2006) 2401

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