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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4 Comments

Filed under Article 20(3), Criminal Law and the Constitution, Privacy, Self-Incrimination

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

  1. Anonymous

    Brilliant analysis of the judgment! Without doubt, the closest analysis of Kathi Kalu I’ve read so far. Also, probably the only account that attempts to understand accurately what the judges were really trying to say. Most people (including, in my view, the Court in Selvi) miss the point you make about volition and changeability.

  2. Thank you, that is extremely kind of you!

  3. G Raj

    Amazing article. I got all doubts on self-incrimination clarified. Wish our professors were like you. Thank you.

  4. Pingback: The Supreme Court’s Right to Privacy Judgment: Privacy, Surveillance, and the Body | Indian Constitutional Law and Philosophy

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