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.


8 thoughts on “Privacy, Self-Incrimination and Article 20(3) – I

  1. Very interesting post, but could you could explain the justification for Art. 20(3) under the ‘due process model’ a bit more? How does the ‘due process model’ account for the scope of Art. 20(3)? Does compelled non-self-incriminatory testimony not violate the rights of the accused in the same way as compelled self-incriminatory testimony does? Are you thinking of a justification along the lines of ‘cruelty’ – the idea that it is ‘cruel’ to use the evidence obtained from X against herself. But even then, why is it restricted to ‘testimonial’ compulsion? (Apologies if I’m jumping the gun here). Compelling someone to give a handwriting sample and convicting her later for an offence on that basis seems equally cruel doesn’t it?

    1. Thanks for the comment. You’re right – any kind of compelled testimony would be – at least prima facie – a problem for the due process model. It is the fact of compulsion that is the issue, and hence the Fourth Amendment, which prohibits “unreasonable” searches and seizures (then, of course, everything turns upon “unreasonable”). I’m focusing on self-incrimination here because that is what 20(3) protects against, and therefore the clash between the two models is played out within the contours of self-incrimination.

      Actually, the kinds of rights violations I had in mind were privacy violations in cases such as narco-analysis and brain-mapping (not so much in the case of a handwriting sample, perhaps?), which come to the fore in subsequent cases such as Kathi Kalu and Selvi.

  2. Thank you, that does clarify your thinking. But then again, it seems to me that a privacy-type justification cannot explain why Art. 20(3) is confined to self-incrimination either. Can it? I find it difficult to see how a breach of privacy is linked to the self-incriminatory nature of the evidence. If privacy was the basis for Art. 20(3), shouldn’t (wouldn’t?) it have been worded more expansively to capture even non-self-incriminatory statements that infringe the accused’s privacy?

    1. Oh, of course – I don’t mean to say that privacy *determines* the scope of 20(3). I mean to say that, *given* the scope of 20(3), what are the possible justifications – privacy (due process), crime-control, or some amalgamation of the two?

      The reason why we wouldn’t have a broader set of guarantees than 20(3) would be that no legal system would be based only on the due process morel, or only on the crime control model: it would be striking a balance somewhere between the two (sacrificing a degree of efficiency in order to safeguard certain rights etc.) E.g., a legal system that has the exclusionary rule is more on the due process end of the spectrum, whereas a legal system that doesn’t, is more on the crime control side of the spectrum. The key question with respect to Article 20(3), I think, is to determine where on the spectrum *it* stands – whether it contains any elements of the due process model at all, or whether it is exclusively geared towards crime-control. Does that make sense?

  3. Would the protection guaranteed under Article 20(3) extend to affording corporations an immunity against the production of documents incriminating them?

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