The National Tax Tribunals Judgment: Two Interesting Constitutional Issues

Last week, in a judgment that caused quite a stir, the Supreme Court held the National Tax Tribunal Act (and, consequently, the National Tax Tribunal, a centralised adjudicatory for the purpose of deciding and harmonising substantive questions of tax law) to be unconstitutional. I have written a detailed analysis of the judgment elsewhere; in brief, the Court held that the NTT Act transferred the jurisdiction of the High Courts to the Tax Tribunal without ensuring that the Tribunal had sufficient trappings of a Court (e.g., independence and qualifications of its judges etc.) Consequently, it fell foul of the L. Chandra Kumar judgment, and the principle of separation of powers (which the Court rather mysteriously treated as a “constitutional convention”). In a pithy concurring opinion, which is well worth a read, Nariman J. held that it was impermissible to remove the judicial power of deciding substantial questions of law from the High Court.

In this post, I want to focus on two issues thrown up by the judgment, which have been discussed before on this blog, albeit mainly from a theoretical perspective. In its judgment, the Supreme Court relied extensively on the 1975 Privy Council case of Hinds vs The QueenHinds was an appeal from the Court of Appeals of Jamaica. The Jamaican Parliament had passed the “Gun Court Act”, which set up a parallel court system to try certain firearm-related offences. One of the courts it set up was vested with the jurisdiction and powers otherwise enjoyed by the higher judiciary, but its officials possessed neither the independence, and nor the qualifications, that were also enjoyed by the higher judiciary under the Jamaican Constitution. The Privy Council found the act to be unconstitutional, since it violated the principle of the separation of powers between executive and judiciary, which – it held – was a “necessary implication” flowing from the structure of post-colonial, commonwealth “Westminster Constitutions”; it had done so, specifically, by transferring the jurisdiction of the senior judiciary to a parallel court, without guaranteeing the judicial independence of the officers of that court through the rules of tenure, appointment and retirement that applied to regular, senior judges.

In its NTT judgment, the Supreme Court quoted extensively from Hinds. In particular, consider this quotation, which comes after the Privy Council referred to Canadian, Australian and other commonwealth Constitutions (notably, not the Indian):

“All of them [Constitutions] were negotiated as well as drafted by persons nurtured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive, and judicial power as it had been developed in the unwritten Constitution of the United Kingdom. As to their subject matter, the peoples for whom these new Constitutions were being provided were already living under a system of public law in which the local institutions through which government was carried on, the legislature, the executive and the courts, reflected the same basic concept. The new Constitutions, particularly in the case of unitary states, were evolutionary, not revolutionary. They provided for the continuity of government through successor institutions, legislative, executive and judicial, of which members were to be selected in a different way, but each institution was to exercise powers which, although enlarged, remained of a similar character to those that had been exercised by the corresponding institution that it had replaced.”

Previously on this blog, I’d drawn a distinction between two types of constitutional provisions: conservative and transformative. Most Constitutions are framed at a point of a decisive break with the past, with its institutions and its values, and certain aspects of a Constitution reflect the “transformation” from one set of values and institutions to another; but the past is never a wholly foreign country, and many institutions and structures not only survive revolutionary moments, but are actually entrenched and strengthened in a Constitution, through its “conservative” provisions. A good – albeit schematic – example is that of the American Constitution: its Bill of Rights was (largely) conservative, seeking to guarantee to the American citizens the ancient and deeply-rooted common law rights (e.g., to a jury trial, against unreasonable searches and seizures etc.) enjoyed by British subjects. On the other hand, the Constitution proper was transformative, replacing British monarchy with a system of representative, republican government, exercised through three separate wings of State.

Whether a particular constitutional provision is conservative or transformative, and to what extent it is transformative can have profound implications for constitutional interpretation. For instance, it is sometimes argued that the American Nineteenth Amendment, which guaranteed women the right to vote, transformed not only their voting status, but the entire legal and political framework, based upon the inferior political and legal status of women, that underlay and justified the denial of their right to vote until that moment. Consequently, the Nineteenth Amendment is used by scholars to ground a jurisprudence of sex-equality and non-discrimination within the American Constitution.

Earlier, in the context of India, I’d tried to argue that the transformative nature of Article 15 justified Naz Foundation (Delhi HC’s) reading of “sexual orientation” into “sex”: in providing a universal guarantee of non-discrimination on a set of grounds that were traditionally the sites of social oppression, the Constitution was signaling a shift from a society in which moral membership in society was contingent upon certain unchangeable aspects of one’s personality (race, caste, sex, place of birth, religion) to one in which ever individual was guaranteed equal moral membership, regardless of those unchangeable aspects (and sexual orientation was one such).

In Madras Bar Association, the Supreme Court applies this interpretive technique, by holding that the Constitution’s structural provisions, which set up the institutions and modes of government, are conservative: they entrench the “Westminster model” that was in practice in colonial India, one of whose features was the separation of powers and concomitant independence of the judiciary, guaranteed through appointment processes and security of tenure. Notice that this interpretive technique is based, ultimately, on a historical claim: whether this “Westminster model” was actually made part of our Constitution and, if so, to what extent, needs to be deciphered not merely from the constitutional text, but from a detailed investigation into its history. Unfortunately, the Supreme Court does nothing of the sort: it glibly assumes that the Westminster Model is the model of our Constitution, and decides the case accordingly. This is problematic because the Constitution was, after all, framed in a post-colonial moment, and it requires much argument to demonstrate what set of structures and institutions the framers simply wished to see carry on unchanged into the new republic; however, the use of the analysis itself is promising, and bodes well for the future.

The other paragraph from Hinds that the Court quoted was:

“Because of all this a great deal can be, and in drafting practice often is, left to necessary implication from the adoption in a new constitution of a governmental structure which makes provisions for a Legislature, an Executive and a Judicature. It is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government… [and] what is implicit in the very structure of a Constitution on the Westminster Model is that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the Judicature, even though this is not expressly stated in the Constitution.

Previously on this blog – also in the context of Naz Foundation – we had discussed constitutional structure as one of the bases for interpretation. A structural analysis derives constitutional obligations or principles not from a textual reading of individual or aggregated provisions, but – as the American jurist Charles Black explained – from the “structure and relations… created by the text… and the inferences drawn from them.” Or, to put it in more linguistic terms, there are things that a Constitution says, and there are things that it does not say, but which, when it is taken as a whole, it necessarily implies.

In the Hinds case, much of the argument was historical: separation of powers and independence of the judiciary simply was a basic feature of Westminster governance. But, as we saw in the excerpts, the Privy Council speaks of the “structure” of the Constitution on the Westminster model, and uses the term “necessary implications”. The structural argument is quite straightforward: Constitutions are the fundamental documents creating and detailing the division of powers among the governing institutions in society. A deliberate and intentional division into three separate wings, with specific duties attached to each wing, presupposes that (in the absence of clear contrary evidence), the Constitution requires that the domains that it has marked out for each of the wings be protected from encroachment by the others. Thus, separation of powers and the independence of the judiciary simply come out as structural corollaries of the Westminster-type Constitution.

Something along these lines was the reasoning of the Privy Council in Hinds. Unfortunately, the Supreme Court walked down a very different path: it held that separation and independence were constitutional “conventions”, and accordingly, had to be upheld. This is unfortunate, because of course the meaning of convention is, precisely, that which is not legally enforceable. Thus, the Court’s decision is deeply problematic on this point.

Notwithstanding that, however, these two issues remain fascinating for the debate over constitutional interpretation. The conservative/transformative model is perhaps truest to Indian history, and can serve as an interpretive guide to a number of provisions; and, constitutional provisions flowing necessarily from the structure of the Constitution can have as much legal force as the text itself. The judgment in Madras Bar Association opens the gates for a further decision to engage with and clarify these interpretive points; whether future courts will accept the invitation is something that remains to be seen.

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Privacy, Self-Incrimination and the Constitution – IV: Selvi and the Middle Way

Selvi vs State, decided by a three-judge bench in 2010, is the Supreme Court’s most recent – and by far most detailed – engagement with Article 20(3). Selvi involved a batch of appeals challenging the constitutionality of three investigative techniques: narco-analysis, the polygraph test, and the Brain Electrical Activation Profile. The nature of these processes is important. In narco-analysis, an intravenous injection of a drug into a subject’s blood-stream sends her into a hypnotic state, lowering her inhibitions, and making her more likely to divulge information.  In discussing the comparative jurisprudence on narco-analysis, the Court quoted both Horvath vs The Queen, which we had discussed in the last post, and the American Supreme Court case of Townsend vs Sain, in which Warren J. held that “if an individual’s “will was overborne” or if his confession was not “the product of a rational intellect and a free will,”, his confession is inadmissible because coerced.”

A polygraph test, on the other hand, measures various physiological responses (respiration, blood pressure, blood flow etc.) during questioning, and makes determinations about the truth or falsity of the subject’s statements, based on the changes in those responses.  Similarly, the Brain Electrical Activation Profile (BEAP) test measures responses within the brain, in order to ascertain whether or not the subject has recognised the stimuli to which she has been exposed.

Obviously, out of these three tests, only narco-analysis involves “testimony” in the classic sense: communicating information through words, written or spoken. One of the central issues in the case, therefore, was whether recording physical stimuli amounted to compelling a person to be a “witness against himself”. It is in this backdrop that the Court embarked upon a detailed analysis of whether these investigative procedures fell foul of Article 20(3). Up front, it laid out the conceptual foundations of the Article:

“Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily… when a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the `rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable… the concerns about the `voluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements – often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, `the right against self-incrimination’ is a vital safeguard against torture and other `third-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such `short-cuts’ will compromise the diligence required for conducting meaningful investigations.” (paras 91 and 92)

The first of the Court’s rationales – reliability – straightforwardly corresponds to the crime-control model. The second – voluntariness – seems, at first sight, to correspond to the due process model, but in answering the question, “why is voluntariness important?”, the Court complicates the issue: it mentions bodily integrity and dignity (in the context of torture and other third-degree methods), but also notes that the “diligence” required for “meaningful investigations” will be “compromised” if the investigators can take short-cuts such as torture. It is unclear, therefore, that even within the “voluntariness” framework, whether the focus is on (due-process based) concerns of dignity and integrity, or of (crime-control based) diligent investigations.

After examining a plethora of precedents on self-incrimination the world over, the Court then clarified some of the basic tenets of Article 20(3): “accused of an offence” covered a wide ambit, that included people formally charged of offences, as well as people whose answers could expose them to criminal charges (paragraph 109); incriminatory statements included statements that the prosecution could directly rely upon to further its claims, as well as derivative statements. The corse of the Court’s analysis, however, was in examining whether “testimonial compulsion” was involved in the three impugned techniques. Precedent – as we have seen – drew a distinction between testimony and physical evidence (fingerprints, blood samples etc.) In Kathi Kalu, this distinction had been rationalised on the ground of “volition”, in the sense of unchangeability. Under this logic, narco-analysis would be borderline unconstitutional (depending on whether or not you take answers given under hypnosis to be “volitional” or not), whereas polygraph tests and brain-mapping would be definitively constitutional.

This argument was buttressed by the fact that Ss. 53 of the CrPC allows for the examination of the accused on the request of the police, of “blood, bloodstains, semen… sputum… sweat…” etc., through the use of “modern and scientific techniques including DNA profiling and such other tests…” It was argued that the three impugned techniques ought to be read into this Section. The Court, however, rejected this argument, holding that S. 53 clearly referred only to the examination of “bodily substances”, whereas the impugned techniques involved “testimonial responses” That, however, is not self-evident: what is it about physiological reactions of the brain and other parts of the body, that put them within the category of “testimonial responses”?

The Court answered this question by going back to Kathi Kalu, and holding that a testimonial act is equivalent to “the imparting of knowledge by a person who has personal knowledge of the facts that are in issue.” (paragraph 158) And then the Court noted:

Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact.” (Para 160)

And, immediately afterwards:

“The compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.”

Of course, in a trivial way, being forced to provide a blood sample or a fingerprint also involves conveying personal knowledge (of your blood group or your fingerprint pattern) irrespective of your volition. In earlier cases, the Court had gotten around that by arguing that a blood sample or a fingerprint was innocuous in itself – only when subsequently corroborated with another piece of evidence (fingerprints at the scene of the crime), did it become incriminatory. However, that reasoning is not open to the Court here, because physiological responses to stimuli are also innocuous in themselves. On the other hand, it seems clear from paragraph 160, that what the Court was concerned about was – in a phrase – the privacy of the mind. This becomes clearer subsequently, when after an excursion into the constitutional right to privacy under Article 21, the Court noted:

While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the `right to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes... so far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty’ under Article 21. Hence, our understanding of the `right to privacy’ should account for its intersection with Article 20(3). Furthermore, the `rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self-incrimination.” (Paras 190 – 193)

The shift from Kathi Kalu is crucial. In that case, “volition” – in the sense of changeability – played the crucial role, and we saw how it was conceptually connected with the crime-control model: information that you had no power to change could not possibly be fabricated. In Selvi, although the Court embarked upon a discussion of the reliability of the investigative techniques, ultimately, the distinction it drew was between “physical privacy” (blood samples, fingerprints) and “mental privacy”; linking the word “witness” to testimony, and then understanding “testimony” as the impartation of information present within a person’s mental sphere, the Court placed a certain conception of mental privacy – understood as autonomous mental processes – at the heart of the guarantee against self-incrimination.

While the result of Selvi was the unconstitutionality of three specific investigative procedures, its implications for criminal/constitutional jurisprudence are more significant. In Selvi, we have a strong recognition of the role of the due process model as the foundation of criminal procedure and associated constitutional guarantees. It therefore provides a template for future cases where the crime-control model and the due process model pull in opposite directions, and the Court is obliged – as it was in Selvi – to balance the two.

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Privacy, Self-Incrimination and the Constitution – III: “Volition”

In the last post, we saw that in Kathi Kalu Oghad, the Supreme Court held that what distinguished a compelled fingerprint scan from compelled self-incriminatory testimony was the issue of volition: one’s fingerprint pattern was independent of one’s volition, while testimony (spoken or written) was not. In linking volition with changeability, the Court seemed to adopt the crime-control model as the basis of Article 20(3). The reason why non-volition brought fingerprints out of the scope of Article 20(3) was because the accused was powerless to change or affect them in any way; in other words, fingerprints had an objective, verifiable existence beyond the control of the accused, and consequently, were not amenable to deception or falsification. Thus, because of their accuracy (as opposed to spoken or written testimony), even producing them through compulsion passed constitutional scrutiny.

In linking voluntariness with veracity (via changeability), the Court was tapping into an established common-and-statute law tradition. Consider Section 24 of the Evidence Act which, in popular parlance, is understood to exclude involuntary confessions. Section 24 renders irrelevant confessions that are obtained through “inducement, threat or promise… proceeding from a person in authority and sufficient… to give the accused person grounds… for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.” The purpose is clear: there is a good chance that statements made in order to obtain a benefit or avoid an evil are false. More specifically, Halsbury’s Laws of England define a person’s statement to be “voluntary” as long as “it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in author­ity, or by oppression.” This rule – in almost exactly the same wording – was also laid down by the Privy Council in the 1914 case of Ibrahim v The QueenAgain, the concern seems to be – following the crime-control model – that fear of prejudice and hope of advantage are likely to taint the accuracy of the statement in question.

It is in this context that the 1979 Canadian Supreme Court decision of Horvath v The Queen assumes tremendous importance. In Horvath, the appellant’s mother was murdered in her bed one morning. The appellant, who was seventeen years old, was arrested, and subjected to a three-hour interrogation. He then confessed, but soon retracted. The next day, he underwent a four-hour interview with a polygraph operator, during which he made certain self-incriminatory statements, and at the end of which he wrote a signed confession. At the trial, a psychiatrist testified that for certain periods during the interview, the appellant had been in a “light hypnotic state“. The question before the Court was whether statements made under and immediately after light hypnosis were “voluntary” or not. The trial judge held that the statements were inadmissible; the Appeals Court reversed, on the basis of the narrow definition of “voluntary” in Ibrahim v The Queen. The case went up in appeal before the Supreme Court. By a narrow, 4 – 3 majority, the Supreme Court allowed the appeal, reversed the decision of the lower court, and restored the trial court’s order of acquittal. The dissenting judges based their decision on a strict understanding of “voluntary”, as per Ibrahim. They held that Ibrahim referred to a closed set of categories that could not be judicially expanded, as per certain other Canadian decisions.

However, it is the majority opinion of Beetz and Pratte JJ that is of considerable interest to us. Analysing the effect of the “interview”, the two judges concluded that there was a similarity between light hypnosis and narco-analysis, in the sense that “emotional controls are less inhibited than they are in a fully conscious state and the subject is assisted to say what he was not able to say voluntarily because of the emotional intensity of it.” The use of the word “voluntary” here is crucial, because it suggests a different understanding of the term, one which goes beyond fear of prejudice or hope of advantage. Immediately afterwards, the two judges went on to develop their theory of “voluntariness”, arguing that the “principle” underlying the Ibrahim rule necessitated its expansion when required:

“… if a mere threat or a mere promise are considered to have such an impact on mind and will as to render involuntary the confession of an accused who is not under induced hypnosis, whose state of conscious­ness has not been altered, who is in full and voluntary control and possession of his faculties and who is therefore quite capable to resist sugges­tion, then Horvath’s statement made under hypno­sis in the circumstances described above was a fortiori involuntary even though the cause of involuntariness was neither hope of advantage nor fear of prejudice.”

In other words, something was “voluntary” only if it was done under full control and possession of one’s faculties. What is the basis for this understanding? The Court held that:

“… through the use of an interrogation technique involving certain physical elements such as an hypnotic quality of voice and manner, a police officer has gained unconsented access to what in a human being is of the utmost privacy, the privacy of his own mind… it is my view that this was a form of violence or intrusion of a moral or mental nature, more subtle than visible violence, but not less efficient in the result than an amytal injection administered by force.”

Here is a new and powerful understanding of the interests protected by the voluntariness requirement. It is not, after all, about accuracy, but about privacy: the right of every person to choose whether or not to reveal what is in their minds, to keep their mental maps hidden from view, or to reveal it to the world, as they wish. Unsurprisingly, then, towards the end of its judgment, the Court expressly abandoned the veracity basis of the voluntariness requirement:

“Apart from the untrustworthiness of confessions extorted by threats or promises, other policy reasons have also been advanced to explain the rejec­tion of confessions improperly obtained. But the basic reason is the accused’s absolute right to remain silent either completely or partially and not to incriminate himself unless he wants to. This is why it is important that the accused understand what is at stake in the procedure. In a voir dire, voluntariness not veracity governs admissibility. Dr. Stephenson’s expert opinion as to the truthful­ness of Horvath’s confessions is accordingly not determinative of the issue of admissibility… I wish to add that the accused’s absolute right to remain silent includes not only the right to censor any information which is on his conscious mind but also the right to control the administration of artificial processes whereby unconsciously held information might emerge into consciousness. In this sense, the accused has the absolute right to censor his unconscious mind as well as his con­scious one.”

Let us return to Kathi Kalu Oghad. We can now see that the volitional requirement in that case could be read in one of two ways. Volition as non-changeability conforms to the narrow definition of “voluntariness” in the common law, based upon the crime-control model, and permissive of (arguably) narco-analysis, brain-mapping and other such intrusive tests that escape unconstitutionality by being neither threatening some prejudice, nor promising some advantage. On the other hand, volition as understood by the Canadian Supreme Court in Horvath, based upon the due-process model, is broader, and focuses on the right of the accused to mental privacy, to choose precisely which part of his mental landscape he or she wishes to reveal to the world. The tension between these two approaches must be kept in mind when, in the next post, we discuss the most recent Supreme Court decision on 20(3), one that was directly about narco-analysis and brain-mapping: the 2010 case of Selvi vs State.

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Privacy, Self-Incrimination and Article 20(3) – II: Kathi Kalu Oghad

M.P. Sharma vs Satish Chandra, as we saw in the last post, held that the meaning of the phrase “to be a witness”, under Article 20(3), was analogous to “to furnish evidence”. This broad interpretation of Article 20(3) was questioned, and in 1961, an eleven-judge bench of the Supreme Court, in State of Bombay vs Kathi Kalu Oghad, had occasion to reconsider the scope of the constitutional guarantee against self-incrimination. The basic question, in Kathi Kalu, was whether fingerprints and handwriting samples were hit by the Article 20(3) bar – or, in other words, whether compelling an accused to provide their fingerprints, or a handwriting sample, was equivalent to compelling them to be a “witness” against themselves. Incidental to this central question, the case also involved constitutional challenges to some of the provisions that made it possible: S. 73 of the Evidence Act, which empowers the Court to direct a person to provide handwriting or signature samples; Ss. 5 & 6 of the Identification of Prisoners Act, which allowed a Magistrate to obtain a photograph or measurements of any person; and S. 27 of the Evidence Act which allow, in evidence, statements made by the accused while in the custody of a police officer, which result in a discovery (of other relevant evidence).

There can be no doubt that if – following M.P. Sharma vs Satish Chandra, “to be a witness” meant “to furnish evidence”, then compelled taking of fingerprints or handwriting samples surely come within its meaning. The Court held, however, that Sharma’s observations, on this point, were incorrect. It noted that:

“… though they may have intended to protect an accused person from the hazards of self- incrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Further more it must be assumed that the Constitution-makers were aware of the existing law, for example, s.73 of the Evidence Act or ss. 5 and 6 of the Identification of prisoners Act (XXXIII of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so.” 

There are two glib assumptions here that are very troubling: first – that a Constitutional guarantee – a fundamental right, no less – is to be bound by the scope of traditional English common law (which has never been too friendly to the accused); and secondly – that a fundamental right must be interpreted in light of colonial-era legislations such as the Evidence Act and the Identification of Prisoners Act, and not the other way round. The other possibility – that the Constitution was the culmination of a decades-long struggle against a repressive police State (observations to this effect abound in the Constituent Assembly Debates), and that therefore, its fundamental rights ought to be read not as continuing an authoritarian tradition, but as marking a decisive break with it in favour of an expansive notion of civil liberty, was never even considered by the Court – let alone analysed.

There is a further problem. In the cited paragraph, the Court laid out the accepted dichotomy, between protecting an accused from self-incrimination, and serving the goals of law-enforcement. But surely, just as taking the impressions of parts of a body is often necessary to help in the investigation of a crime, torturing a person to make him confess may be equally necessary in an investigation. In either case, not allowing the police to do so becomes an “obstacle” towards bringing criminals to justice. The Court’s reasoning – that the constitutional framers could not have intended to throw up obstacles in the path of law-enforcement therefore does nothing to explain what the scope of the self-incrimination guarantee is, because any protection of individual rights is bound to make the job of the police harder. So if we do accept that Article 20(3) guarantees some rights, we must look elsewhere for their ambit.

This the Court did by looking at the issue from “another angle”. It noted that “the giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not “, to be a witness”. “To be a witness” means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.”

But surely there is nothing in the inherent meaning of the word “witness” that requires this constricted interpretation. The Oxford Dictionary, for instance, defines the word “witness” both as “a person who sees an event”, and, more simply, as “evidence; proof.” The Court’s thinking was revealed soon afterwards, though, when it held that “the giving of a “personal testimony’ must depend upon [the accused's] volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot, change their intrinsic character.”

The underlined portion is crucial, because it demonstrates that, underlying the Court’s seemingly textual interpretation of the word “witness”, is a deep-sated fidelity to the crime-control model. Finger impressions and handwriting have an “intrinsic character”, that is changeless, beyond the accused’s control and – ultimately – verifiable. The content of a “statement”, on the other hand, is entirely within the control of the accused, and if it is self-incriminatory, then it is just that much more likely that it is distorted or untrue.

The Court put another gloss upon its holding, by stating that the testimony – to fall within Article 20(3) – must itself have a tendency of incriminating the accused – i.e., “it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with.” Notice how “innocuous” is run together with “unchangeable”, although they do not – for one moment – mean the same thing. Once again, underlying all this is the concern with determining true, accurate information, that can make the process of identifying the guilty efficient and accurate.

In their concurring opinion, Das, Sarkar and Da Gupta JJ. maintained – following M.P. Sharma – that to be a “witness” included furnishing of evidence. They held, however, that “evidence of specimen handwriting or the impressions of the accused person’s fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions., identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person. or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself.” Immediately afterwards, the concurring judges noted that “this view, it may be pointed out, does not in any way militate against the policy underlying the rule against “testimonial compulsion”… there is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person.” The concurring opinion, thus, is even more transparent about is allegiance to the crime-control model: the whole point of the guarantee against testimonial compulsion is to ensure that the investigator doesn’t become “lethargic”, because he has the option of squeezing self-incriminating information out of the accused, and thereby fails to collect other relevant or valuable evidence.

We therefore see how, in Kathi Kalu - unlike in M.P. Sharma – the basic conceptual framework within which Article 20(3) is analysed is the crime-control model. In focusing on volition and unchangeability, however, the eight majority judges left a zone of doubt for investigatory techniques such as narco-analysis and brain-mapping, that operate at the interface of volition/no volition, and accuracy/unreliability. The Court, therefore, would have another chance at conceptualising its understanding of Article 20(3). That will be the subject of the next post.

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Privacy, Self-Incrimination and Article 20(3) – I

Previously on this blog, we have discussed in detail the right to privacy in the context of State surveillance. In the context of surveillance, we understand privacy as every individual’s right to a zone of autonomy, where his communications or actions are subject to no interference. Privacy, however, has another important aspect: the aspect of each individual’s right to bodily integrity, especially in the teeth of the State’s law-enforcement procedures. Under the Indian Constitution, this idea – or something like it – finds a place in Article 20(3), and takes the form of the traditional common-law right against self-incrimination. Article 20(3) reads: “No person accused of any offence shall be compelled to be a witness against himself.” It closely follows the wording of the Fifth Amendment to the American Constitution, which likewise provides that “[no person] shall be compelled in any criminal case to be a witness against himself.

Before examining the judicial history of Article 20(3), it is important to note that the right against self-incrimination is part of a family of procedural safeguards accorded to persons accused of criminal offences. What is the underlying philosophy of these safeguards? In a famous article in 1964, titled Two Models of the Criminal Process, the American jurist Herbert Packer proposed two answers to this question. Under the “crime control model”, the ultimate goal of the criminal process is the “repression of criminal conduct.” “In order to achieve this high purpose,” Packer wrote in a subsequent article, “the Crime Control Model requires that primary attention be paid to the efficiency with which the criminal process operates to screen suspects, determine guilt, and secure appropriate dispositions of persons convicted of crime.” Simplifying greatly, “the criminal process thus must put special weight on the quality of administrative fact-finding. It becomes important, then, to place as few restrictions as possible on the character of the administrative fact-finding processes and to limit restrictions to such as enhance reliability, excluding those designed for other purposes.

The crime-control model is to be contrasted with the “due process model”. This holds that “the combination of stigma and loss of liberty that is embodied in the end result of the criminal process is the heaviest deprivation that government can inflict on the individual.” Therefore,   “because of its potency in subjecting the individual to the coercive power of the state, the criminal process must… be subjected to controls that prevent it from operating with maximal efficiency.” The classic example is, of course, the presumption of innocence.

To put it impressionistically: the crime control model is most concerned with finding and punishing the guilty; the due process model focuses, instead, on protecting the basic rights of the accused against the State machinery. The dividing lines are not always clear, but one example that might put the point across is the fate of the exclusionary rule in various jurisdictions. The exclusionary rule stipulates that evidence obtained through illegal means (e.g., a warrantless search, or through torture) is inadmissible in Court. Naturally, the quality and relevance of evidence is entirely unrelated (in most cases) to the manner in which it was obtained. Consequently, the criminal control model, which is concerned with accurate determination of guilt, will only judge evidence with regard to its relevance, and will see little reason to deny admitting illegally obtained evidence (and this is the position, for instance, in England in India). On the other hand, the due process model, which is concerned with protecting citizens’ rights (against, e.g., warrantless searches and torture) might well determine that an effective way of protecting these rights is to ensure that evidence obtained in their violation, cannot be used against the accused.

What is particularly interesting to note is that the right against self-incrimination can fit within both these models. Compelled testimony – simply by virtue of being “compelled” will often be flawed. Reasonable criminals are unlikely to willingly give evidence incriminating themselves, and history bears witness to the fact that coerced, false confessions have been the norm rather than the exception. Consequently, the crime control model, with its focus on accurate determination of guilt and innocence, has good reason to guarantee a right against self-incrimination. The due process model, of course, is concerned with the rights violations that invariably accompany compelled, self-incriminatory testimony, and has equal – if different – reason to guarantee that right as well. However, the difference is not merely academic: if, for instance, an infallible truth-serum is invented, then its use under the crime control model would no longer be problematic, since the central objection to compelled testimony – the likelihood of inaccuracy – has been removed. On the other hand, for obvious reasons, it would continue to be problematic under the due process model.

In the beginning of this post, we had suggested that Article 20(3) embodies an aspect of the right to privacy – privacy as bodily integrity. That statement now needs to be modified: the text of Article 20(3) suggests that it might be about crime control – or it might be about due process rights (or embody a balance of both concepts). While the presence of Article 20(3) within the fundamental rights chapter suggests it was the due process model – along with the attendant rights to privacy – that the framers had in mind, we shall see that the judiciary has often taken a different view of things. Indeed, it is the clash between the two models that has largely shaped the judicial history of the constitutional guarantee against self-incrimination.

Article 20(3) – to repeat – provides that “no person accused of any offence shall be compelled to be a witness against himself.” Three important phrases must be interpreted: “accused of any offence”, “compelled” and a “witness against himself.” The Supreme Court was first called upon to lay down the meaning of this section in the 1954 case of M.P. Sharma vs Satish ChandraThe question in that case was whether a search and seizure under Sections 94 and 96 of the 1898 Criminal Procedure Code violated Article 20(3) of the Constitution. At the outset, Jagannadhadas J. clarified that “The fundamental guarantee in article 20(3) comprehends within its scope not merely oral testimony given by an accused in a criminal case pending against him, but also evidence of whatever character compelled out of a person who is or is likely to become incriminated thereby as an accused. It, therefore, extends not only to compelled production of documents by an accused from his possession, but also to such compelled production of oral or documentary evidence from any- other person who may become incriminated thereby as an accused in future proceedings.” It was therefore argued that a forcible search and seizure was simply an indirect way of accomplishing what Article 20(3) forbade – obtaining self-incriminating testimony from an accused.

The Court commenced by going into the legal and doctrinal history of the right against self-incrimination. Interestingly, it looked to Wigmore on Evidence, citing justifications grounded in the crime-control model: that it prevented “extorted confessions” (but then why would it extend to documents?) and afforded witnesses “a free atmosphere in which they can be persuaded to come forward to furnish evidence in courts and be of substantial help in elucidating truth in a case.” It then clarified that “”To be a witness ” is nothing more than ” to furnish evidence “, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes… 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 guarantee under Article 20(3) therefore] would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against [an accused individual].” 

While expanding the reach of Article 20(3), the Court declined to find that a search and seizure violated it. The petitioners had relied upon a series of American cases such as Boyd vs United States and Weeks vs United States for the proposition that search and seizure was equivalent to compelled production of documents. The Court found, however, that those cases rested upon the fact that the search/seizure in question was illegal, and therefore a violation of the American Fourth Amendment, for which there was no equivalent in the Indian Constitution. Consequently, and relying upon various textual provisions of the CrPC, it held that “there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same… when the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition offundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right. by some process of strained construction.”

The Court’s reading of Boyd and Weeks is questionable, as is its choice to interpret a Constitutional, fundamental right-guaranteeing provision (Article 20(3)) in light of a colonial criminal legislation. However, that apart, what is interesting to note is how elements of the crime control model and the due process model are present – and in tension – throughout the judgment. In reading “witness” to include both oral testimony and documentary evidence, the Court veers towards the due-process model, since fears of inaccurate testimony are much reduced – if not eliminated altogether – when it comes to compelled production of documents. However, in stating the justifications for the right, the Court focuses on the crime control model, and its verdict – refusing to equate search/seizure with compelled production depends upon its finding that unlike the American Constitution, the Indian contains no guarantees of privacy. And this tension, as we shall see in subsequent posts, has dogged the Court’s Article 20(3) jurisprudence throughout its history.

 

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SFLC’s Report on Surveillance in India

The Software Freedom Law Centre has released a detailed, fifty-page report on surveillance in India. The Report can be accessed here. Although I haven’t read it yet, a summary of issues (see here) suggests that it is comprehensively written, and a job well done.

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Supreme Court Rules on Oral Hearings for Death Penalty Reviews

In a brief – and interesting – judgment today, a Constitution Bench of the Supreme Court ruled – by a 4-1 majority – that death penalty review petitions must be heard orally, in open court. The background of the case was that Order XL, Rule 3 of the Supreme Court Rules allows for review petitions to be decided by “circulation” – i.e., in the chambers of the judges, without oral argument. The constitutionality of Order XL, Rule 3 had been challenged before a Constitution Bench of the Supreme Court in P.N. Eswara Iyer vs Registrar, Supreme Court of India. Krishna Iyer J., writing for the majority, upheld the provision dispensing with oral arguments for reviews. The present Court, being bound by the judgment in P.N. Eswara Iyer, carved out a specific exception for the death penalty, because of its Article 21 implications. It did so by invoking specific observations made by Krishna Iyer J, in that case, namely “…presentation can be written or oral, depending upon the justice of the situation“, and “…the problem really is to find out which class of cases may, without risk of injustice, be disposed of without oral presentation.” (para 40)

Nariman J., writing for the majority, went into the judicial history of Article 21 from A.K. Gopalan to Maneka Gandhi, via R.C. Cooper, before holding that:

“… death sentence cases… are a distinct category of cases altogether. Quite apart from Art.134 of the Constitution granting an automatic right of appeal to the Supreme Court in all death sentence cases, and apart from death sentence being granted only in the rarest of rare cases, two factors have impressed us. The first is the irreversibility of a death penalty. And the second is the fact that different judicially trained minds can arrive at conclusions which, on the same facts, can be diametrically opposed to each other.” (para 29)

And, soon after:

… when on the same set of facts, one judicial mind can come to the conclusion that the circumstances do not warrant the death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, we feel that when a convict who has suffered the sentence of death and files a review petition, the necessity of oral hearing in such a review petition becomes an integral part of “reasonable procedure” [under Article 21].

In addition, rejected the petitioners’ arguments that the review bench strength be increased from three to five (para 39). Regrettably, the Court also affirmed the Triveniben holding, that “time taken in court proceedings [in this case, thirteen and a half years] cannot be taken into account to say that there is a delay which would convert a death sentence into one for life”, and went on to say that its oral hearing rule would not apply to already-dismissed curative petitions.

One of the interesting aspects of today’s judgment is its setting apart of death sentences from all other sentences that have an impact on personal liberty, for special treatment under Article 21. The Court does so on the twin basis of the irreversibility of a death sentence, and the fact that different judges come to different conclusions about awarding death. The second point, however, is something that is common to all sentencing. Clearly, therefore, it acquires special constitutional significance when it is combined with the fact of irreversibility. In other words, irreversibility is what makes the possibility of arbitrariness in death sentencing (as opposed to ordinary sentencing) particularly problematic, and hence the need for the procedural safeguards under Article 21.

Recall, however, that in Bachan Singh vs State of Punjab, the Constitutional challenge to S. 354(3) of the CrPC, which requires judges to give special reasons, in writing, on the award of the death penalty, was dismissed. The majority, in that case, held:

The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment… The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused… In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different. Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an un-guided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.”

In Bachan Singh, therefore, the Court considered differential judicial outcomes to be an integral part of criminal sentencing (thus discounting even the possibility of arbitrariness). Santosh Kumar Bariyar more or less departed from this position by subjecting the death penalty to rigorous Article 14 analysis, and proposing standards such as the principle of prudence (which have since been honoured more in the breach than in the observance). Today’s judgment extends the Bariyar line of argument by affirming that the death penalty is not like ordinary criminal sentencing, and must be subjected to exacting constitutional scrutiny. At least potentially, therefore, it leaves the field open for a future challenge that is based on a showing that the administration of the death penalty in India has become so arbitrary and unpredictable (that is, judicial minds are arriving at diametrically opposite conclusions, notwithstanding the same facts), that it is no longer possible for the punishment to survive, and simultaneously remain consistent with Article 14. Or, to put it another way, today’s judgment added a procedural safeguard (open court hearings) to the death penalty scheme, in order that it remain consistent with reasonable procedure under Article 21 — and in particular, to mitigate the potential arbitrariness of different judges arriving at different conclusions, an arbitrariness that becomes constitutionally problematic under Article 21 because of the irreversibility of the death penalty. This implies, of course, that different judges reaching different conclusions (without any discernible basis) is, contra Bachan Singh, which saw that as a praiseworthy aspect of judging, is actually problematic when it comes to the death penalty. Consequently, empirical studies demonstrating precisely that (whatever procedural safeguards there may be) might constitute a strong ground – sometime in the future – to challenge the prevalence of death penalty in India.

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