RIGHT AGAINST SELF- INCRIMINATION, Human Rights Laws

INTRODUCTION

The right against self- incrimination finds its earliest embodiment in the medieval law of the Roman church in the Latin maxim “Nemon tentur seipsum accusare’ which means that ‘No man is obliged to accuse himself’.

 The right gradually evolves in common law through protests against the inquisitorial and manifestly unjust methods of interrogation of accused person, back in the Middle Ages in England. This right is one of the fundamental canons of British System of criminal jurisprudence which the United States of America adopted from the British legal system and incorporated it in their Constitution as “no person shall be compelled in any case to be a witness against himself”, and thereafter in the Indian Constitution, under Article 20(3)-‘No person accused of an offence shall be compelled to be a witness against himself’.

 In 1978, under the Indian Constitution (Forty-fourth Amendment) Act, 1978, Article 20 of the Constitution of India was granted a non- derogable status i.e. the state has no legal, even in a state of emergency, to refuse to honor this right. This is a testimony to the importance it has been accorded in our Constitution.

SELF INCRIMINATION

Giving testimony in a trial or other legal proceeding that could subject one to criminal prosecution.

RIGHT AGAINST SELF INCRIMINATION

DEFENDANT

• This right enables a defendant to refuse to testify at a criminal trial, where the answer might incriminate him in future criminal proceedings.
• Privileges him not to answer official questions put to him in any other proceedings:
  • Civil or criminal,
  • Formal or informal.
• The right against self- incrimination may only be asserted by:
  • Persons and
  • Does not protect artificial entities such as corporation.

GOVERNMENT

This privilege forbids the government from compelling any person to give testimonial evidence that would likely incriminate him or her during a subsequent criminal case.

VIOLATION CONSEQUENCE

• Confessions, admissions and other statements taken from defendants in violation of this right are inadmissible against them during a criminal prosecution.
• Convictions based on statements taken in violation of the right against self incrimination, normally are overturned on appeal, unless sufficient admissible evidence is available to support the verdict.

RIGHT AGAINST SELF- INCRIMINATION AS RIGHT TO REMAIN SILENT

• The right against self- incrimination affords defendants the right not to:
  • Answer particular questions during a criminal trial or
  • Refuse to take the witness stand altogether.
• When the accused declines to testify during a criminal trial, the government may not comment to the jury about his or her silence. But the prosecution, when the defendant refuses to testify may assert during closing argument that this case is:
  • Unrefuted (not disproved or not proved to be wrong/false) or
  • Uncontradicted (not denied).
• However, before the jurors retire for deliberations, the court must instruct them that:
  • The defendant’s silence is not evidence of guilt and
  • No adverse inferences may be drawn from the failure to testify.

 ARTICLE 20(3)- PROTECTION AGAINST SELF INCRIMINATION AND RIGHT TO REMAIN SILENT

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

The characteristic features of this provision are that:

• The accused need not to make any statement against his will as it is for the prosecution to establish his guilt beyond and
• The accused is presumed to be innocent till proved guilty.

This provision contains the following ingredients:

• It is a right available to a person “accused of an offence”.
• It is a protection against “compulsion to be a witness”.
• It is a protection against “compulsion” resulting in his giving evidence “against himself”.

I. PERSON ACCUSED OF AN OFFENCE

• Privilege under this clause is only available to an accused, that is:
  • Against whom a formal accusation relating to commission of an offence has been leveled and
  • Although actual trial may not have commenced yet,
  • But which in normal course may result in prosecution.
• Availing this privilege:
  • Not on a presumption that the actual trial or inquiry should have commenced before the court or tribunal.
  • An accused can claim the available privilege, when-
    • The F.I.R., against such person has been recorded by the police and
    • An investigation has been ordered by the Magistrate.

Case 1: M.P. Sharma V Satish Chandra

It was held that:

• A person cold claim the protection of this guarantee-
  • Whose name was mentioned as an accused in the first information report and
  • Police investigation was ordered by the Magistrate.
• Article 20 (3), is undoubtedly available at –
  • At the trial stage and
  • Event at the pre- trial stage, i.e. during police investigation if the person concerned can be regarded as an accused.
• Even his name is not mentioned in the F.I.R. as an accused, it will not take him out of the category.
• In American, the right against self incrimination is available to –
  • Not only to accused,
  • But also to the witness.

Case 2: Nandini Satpathey V P.L.Dani

It was held:

• Subsequently, that the right extends to witness and accused alike.
• The expression ‘accused of any offence’, must mean:
  • Formally accused in “present not in the future”,
  • Applies at every stage at which furnishing of information and collection of material takes place,
  • The privilege extends not only to the deployment of the information obtained as evidence in a criminal prosecution, but to the extraction of the information itself.

Case 3: Balasaheb V State of Maharashtra

Court held that, on the ground of Article 20 (3)-

• A person cannot claim absolute immunity from being testified in the police case, where he is the witness as well as an accused in complaint case, about the same incident.
• He may, however refuse to answer those questions which tend to incriminate him.

II. COMPULSION TO BE A WITNESS

The application of Narcoanalysis test involves the fundamental question pertaining to judicial matters and also to Human Rights.

The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual’s rights, liberties and freedom.

Case 1: State of Bombay V Kathikalu

• It must be shown that the accused was compelled to make statement likely to be incriminating of him.
• Compulsion means duress, which includes:
  • Threatening,
  • Beating or
• Imprisonment of wife, parent or child of person.
• Article 20(3) does not apply, where the accused makes a confession without any inducement, threat or promise.

Case 2: State (Delhi Administration) V Jagjit Singh

The court held that:

• Once an accused is granted pardon under section 306 of Criminal Procedure Code,
• He ceased to be an accused and becomes a witness for prosecution and
• His evidence, as approved cannot be used against him in other cases and
• He is protected under proviso to section 132 of the Evidence Act, as it clearly protect a witness from being prosecuted as the basis of the answers given by him in a criminal proceeding which tend to incriminate him directly or indirectly.

III. COMPULSION RESULTING IN HIS GIVING EVIDENCE”AGAINST HIMSELF”

• The right to silence has various facets:
  • One, the burden is on the State or rather the prosecution to prove that the accused is guilty.
  • Another, that an accused is presumed to be innocent till he is proved to be guilty beyond reasonable doubt.
  • Third, the right of the accused against self incrimination, namely the right to be silent and that he cannot be compelled to incriminate him.
• Exceptions: An accused can be compelled to submit to investigation by allowing his-
  • Photograph taken,
  • Voice recorded,
  • Blood sample tested,
  • Hair or other bodily material used for DNA testing etc.
• Compulsion is duress:
  • Compulsion has to be a physical objective act, not the state of mind of the person making the statement-
  • Except, where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and therefore, extorted.
• The mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not within the meaning of Article 20 (3) of the Constitution.
• Accused may waive his right by:
  • Entering into the witness box or
  • By giving evidence voluntarily on request.
• Bottom line is, to attract the right given under Article 20(3), accused is compelled to make or give statement against him which amount to him incrimination.

Case 1: Amrit Singh V state of Punjab

The accused was charged for rape and murder of an eight year old girl. When the body of the child was recovered, some strands of hair were found in the closed fist of the victim with that of hair of accused, but he refused to give the hair sample.

 The Supreme Court observed that the accused had protection against self incrimination not to give hair.

But here in such cases if court started to consider this type of right of self-incrimination than this right might be misuse by many accused though being not reasonable to allow them such rights.

Case 2: X V Y

In which the Delhi high Court in divorce proceedings for adultery, allowed the paternity test of a preserved foetus, holding that the foetus is no longer a part of body of the wife and she is not subjected to any compulsion.

 The privilege against self incrimination is not applicable to search and seizure of documents or any other under a search warrant.

Case 3: V.S.Kuttan Pillai V Ramakrishnan and others

The court held that,

• A general search warrant may be issued to procure the document or thing and it can be recovered from any person who may be ultimately found in possession of it and it was known to the court that the person from whose possession it was found was in possession of it.
• Article 20 (3) is also not violated by compelling an accused to stand up and show his face for purpose of identification for it does not amount to giving of testimony as the physical facts which are noticed speak for themselves.
• He can also be ordered to disclose any scar or mark on his body for purpose of identification.

GUIDELINES AND DIRECTIONS

GUIDELINES

The National Human Rights Commission had published ‘Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the ‘Narcoanalysis technique’ and the ‘Brain Electrical Activation Profile ‘test.

The guidelines has been reproduced below:

• No Lie Detective Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
• If the accused volunteers for Lie Detector Test, he should be-
  • Given access to a lawyer and
  • The physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
• The consent should be recorded before a Judicial Magistrate.
• During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
• At the hearing, the person in question should be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.
• The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
• The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
• A full medical and factual narration of the manner of the information received must be taken on record.

DIRECTIONS

Case: Nandini Satpathy V P.L.Dani

FACTS OF THE CASE

• Nandini Satpathy, former Chief Minister of Orissa – against whom a case had been registered under the Prevention of Corruption Act, 1988.
• She was asked to appear before the deputy Superintendent of Police [Vigilance] for questioning.
• The police wanted to interrogate her by giving her a string of questions in writing. She refused to answer the questionnaire, on the grounds that it was a violation of her fundamental right against self-incrimination.
• The police insisted that she must answer their questions and booked her under section 179 of IPC, 1860, which prescribes punishment for refusing to answer any question asked by a public servant authorized to ask the question.
• The issue before the Supreme Court was whether Nandini Satpathy had a right to silence and whether people can refuse to answer questions during investigation that would point towards their guilt.

   SUPREME COURT OBSERVATION

• Article 20 (3) of the Constitution lays down that no person shall be compelled to be witness against her or himself.
• Section 161 (2) of Cr.P.C, 1973 casts a duty on a person to truthfully answer all questions, except those which establish person guilt on an investing officer.

SUPREME COURT DIRECTIONS

• An accused person cannot be coerced or influenced into giving a statement pointing to her or his guilt.
• The accused person must be informed of her or his right to remain silent and also of the right to remain silent and also of the right against self-incrimination.
• The person being interrogated has the right to have a lawyer by her or his side if she or he so wishes.
• An accused person being interrogated has the right to consult a lawyer at the time of questioning, irrespective of the fact whether she or he is under arrest or in detention.
• Women should not be summoned on the police station for questioning in breach of section 160(1) Cr.P.C .

OTHER IMPORTANT CASE

Case: Kartar Singh V State of Punjab

Supreme Court held that the guarantee against testimonial compulsion extends:

• Not only to oral testimony in court or outside court
• But also in written statement incriminating the matter of the statement.

The court has made it clear that the protection against self-incrimination under Article 21.

BIBLIOGRAPHY

“‘Protection against self-Incrimination’ as a Constitutional Right in India: A Critical Appraisal” by Pankaj Kumar Pandey.

“Right to silence and self incrimination under Indian Constitution” by Vijay Kumar.