Guest Post: Admissibility of Confessions made to the Police: From Exception to the Norm – I

(Previously on this blog, we have discussed Giorgio Agamben’s theory of the state of exception, according to which “extraordinary laws” ostensibly meant for “extraordinary times”, characterised by concentration of power in the executive, bypassing of parliamentary oversight, and incremental erosion of procedural safeguards, gradually become “normalised” parts of the existing legal landscape. In a two-part series, Manasa Sundar Raman discusses the use of extraordinary law to achieve the gradual normalisation of confessions made to police officers, that were originally considered inadmissible under the Indian Evidence Act.)

One of the chief goals of any liberal democratic Constitution, including India’s, is to guard against the growth and abuse of police power of the state and corrosion of civil liberties. Yet, it is no secret that in the recent decades, basic constitutional guarantees have increasingly come under threat and have been justified in the name of counter-terrorism. Despite struggling to define “terrorism”, most counter-terror legislations and judgments that interpret them, comfortably place terrorism as an exceptional or extraordinary crime that justifies infringements on civil liberties that are otherwise prohibited.

Characteristically, counter-terrorism legislations give enormous and overriding powers to the executive. Further, in accordance with the extraordinary concern that is sought to be addressed by such laws, they also have extraordinary provisions in procedural aspects such as bail, arrest, detention, confessions, sentencing etc. A recurring ‘extraordinary’ feature in these statutes is the admissibility of confessions made to police during interrogation.

Such extraordinary provisions inevitably lead to constitutional concerns. However, over the years, it can be observed that the judiciary is inclined to save them, paying undue deference to the government rather than declaring them as being unconstitutional. The judgments in this regard invoke the stereotypical imagery of brutalities, fear psychosis and loss of life inflicted by terrorism. This is used as a ground in itself to undermine constitutional guarantees.

In this context, one can consider the extent of deference given to legislative wisdom by the judiciary when these statutes permit confessions made to police as being admissible in trial and are challenged for being violative of Article 20(3). It is my thesis that the judiciary, by allowing for the so-called extraordinary statutes to undermine the right under Article 20(3) without constitutional basis, has gradually aided in the erosion of the right for ‘ordinary’ situations, as well. Therefore, admissibility of confession to police officer is no longer a shocking exception, but well on its way to becoming the norm.

Right against Self-Incrimination in India

Prohibition against self-incrimination is undoubtedly one the cardinal principles of criminal law. Under Article 20(3) of the Indian Constitution, the safeguard, framed as a right, extends to all accused persons to not be compelled to be a witness against themselves.

The Article 20(3) guarantee is further codified under Sections 161, 162, 163 and 164 of the Criminal Procedure Code, 1973 and such guarantees are also present in statutes pre-dating the Constitution in the form of Section 25 and Section 26 of the Indian Evidence Act, 1872. Additionally, India has also, without any reservations, ratified the ICCPR which under Article 14 provides for the right against self-incrimination “in full equality”.

The extent of the right against self-incrimination was fully recognized by the Supreme Court in Nandini Satpathy v. P L Dani. In this case, the court relied on Miranda v. Arizona, to extend the embargo against compulsion in testimony to the investigation stage as well. Further, the judgment recognises that compulsion may come in many forms i.e. not just by way of physical torture, but also in the form of psychic pressure or a coercive atmosphere. Most importantly, the decision holds the right under Article 20(3) and under the Criminal Procedure Code to be co-terminus in their protection. Thus, such strong language used by Nandini Satpathy was merely one step behind holding that provisions enabling the admissibility of confessions recorded by the police would be unconstitutional. However, we notice that subsequent judgements on Article 20(3) regress from this holding and dilute the protection altogether.

Judicial Response to Art. 20(3) challenges to Extraordinary statutes

The Terrorists and Disruptive Activities (Prevention) Act, 1987 (“TADA”) was introduced in May, 1985 as a temporary and extraordinary measure to deal with insurgent movements felt in several areas in India. However, over the years, it was notified in almost all states and became infamous as one the most abused laws.

Many provisions of the TADA, including Section 15 were challenged before a constitutional bench in Kartar Singh v. State of Punjab. Section 15 of the TADA provided that a confessional statement recorded by a police officer is admissible as evidence. In a 3-2 split, the Court upheld the section.

The judgment is prefaced with the historical background and circumstances that led to the enactment of the TADA. For a large part, the Supreme Court dwells on the legislative competence of the State to enact such a law. It then proceeds to hold the section as valid under Article 14 on the basis of the legislative classification that differentiates between ‘terrorists and disruptionists’ and ‘ordinary criminals’. Rejecting the reliance on State of W.B. v. Anwar Ali Sarkar, it reasons that classification of offences is constitutional as long as they are legislatively defined and not left to the arbitrary and uncontrolled discretion of the executive. The issue with this reasoning is that the Court refuses to dig deeper into the rationality of the legislative classification itself. Even assuming that there is an intelligible differentia between the ‘terrorists and disruptionists’ as determined by the police and ‘ordinary criminals’, the Court fails to elaborate on the rational nexus between such a difference and lesser degree of constitutional protection against self-incrimination.

Further, it holds the procedure to be just and fair under Article 21. In the reasoning for this, the majority cite a National Police Commission report that recommends that confessions made to the police to be made admissible so that it will “remove the present feeling of the police that they have been unjustly discriminated against in law”! Thereafter, once again the Court invokes the spectre of terrorism. It paints terror and disruptions as those which endanger the sovereignty and integrity of the country, the normal life of the citizens, and by linking it to the difficulty in obtaining evidence, upholds it entirely.

There are several things that are inexplicable and downright absurd in the Court’s reasoning in saving Section 15. First, it is beyond comprehension why the entire reasoning is based on Article 14 and 21 even though the Court earlier admits that Article 20(3) concerns were implicated by such a provision. There is absolutely no analysis on the extent of protection guaranteed by Article 20(3) and to what degree can it be infringed, if at all. Admittedly, the Court issues guidelines for recording of a complaint of torture by Magistrate if the accused so complains. However, it omits to state the consequence of torture on the probative value of the ‘confession’. Further, the judges limit their understanding of involuntary confessions to those made under torture. There is no mention of other methods by which a confession may be extracted such as by inducement or threats. As rightly pointed out in Nandini Satpathy, compelled testimony is not limited to those made by “physical threats or violence” alone but also as a response to “psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods” as well. Therefore, there is no way for the Court to determine if the accused did in fact make the confession freely and voluntarily. Second, the judges acknowledge truth of custodial torture to obtain evidence and then shockingly, in the same breath, turn a blind eye to it by invoking the imagery of terrorists being a threat to the nation’s sovereignty.

Thus, despite powerful dissents by Justice Ramaswamy and Justice Sahai, it is unfortunate that the majority chooses to substitute constitutional analysis with rhetoric on barbarity of terrorism. The saving grace of the majority judgment is the guidelines issued by the majority such as appearance of the accused before the Magistrate and forwarding the confessional statement recording. Ostensibly, the guidelines were aimed at ensuring the voluntariness of the confession and as a protection mechanism against torture. However, this rationale is not explicitly mentioned, perhaps because it would become an implicit admission of the constitutional infirmities of the section.

The TADA was subsequently repealed but was re-incarnated as the Prevention of Terrorism Act, 2002. Section 32 of the POTA, akin to Section 15 of the TADA, allowed for admissibility of confessions made to a police officer. However, Section 32 in sub-sections (2) to (5) statutorily incorporated the guidelines issued in Kartar Singh. In PUCL v. Union of India it was argued that the since the accused has to be produced before the Magistrate within forty-eight hours, there is no reason why the police are authorised to collect confessions. The Supreme Court rejected this contention stating that a similar provision was upheld in Kartar Singh and also pointed out that it incorporates the guidelines issued therein. Once again, the Court falls into the trap of excessive deference to the determination of “necessity” by Parliament, by characterising this encroachment of a fundamental right as an issue of policy rather than principle. Moreover, just as in Kartar Singh, the Court makes no reference to the fact that the recording of confession by the police is an exceptional case, departing from the well-established rules under Evidence Act, Criminal Procedure Code and norms under Article 20(3). Thus it is uncertain from the reasoning whether the Court does view Section 32 as a justified derogation from Article 20(3) in view of terrorism or if recording of confession by police is normally allowed even for regular offences under Article 20(3).

(Manasa is a Vth year student at the National Law School of India University)

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1 Comment

Filed under Article 20(3), Confessions, Criminal Law and the Constitution, Criminal Procedure

One response to “Guest Post: Admissibility of Confessions made to the Police: From Exception to the Norm – I

  1. One reason why the Court didn’t go into the Article 20(3) question might have been that under the Evidence Act, the test for admissibility is based only upon relevance. We have explicitly rejected the exclusionary rule. So, a custodial confession elicited through compulsion would be *admissible*, but given no weight during arguments. This, in turn, would mean that anything recovered under S. 27 pursuant to a police confession elicited through compulsion would continue to be admissible and have probative weight. Was there any reasoning in the cases to this effect?

    I agree that this is an unsatisfactory state of affairs. A constitutional prohibition should certainly go to the root of evidence, and strike at admissibility. But I think that, barring a few stray lines in Selvi, the position is that a 20(3) violation would not affect admissibility. Subject to correction, of course.

    I think where the Court really misses a trick in these cases is, as you point out, the Article 14 analysis, the reliance upon Anwar Ali Sarkar, and the rationality review standard. There should certainly be a higher standard of review than rational nexus where the different legislation takes away vital procedural safeguards, that deeply implicate the rights to life and personal liberty. We’ve come to a stage now where Article 14 jurisprudence is an utter mess – where the Court wants to strike something down as violative of 14, it adopts the “arbitrariness” standard (which is entirely subjective), and where it wants to uphold something, it adopts rationality review and excessive deference. Of course, as many scholars have pointed out, the rationality review standard is, at the end of the day, extremely weak.

    I think that until we develop a coherent tiers-of-scrutiny standard, like most other jurisdictions do, this is going to remain an unprincipled smorgasbord.

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