(In a two-part series, Abhinav Sekhri, a criminal lawyer, explores some of the problematic issues with the operation of the constitutional right against self-incrimination)
Article 20(3) of the Constitution of India is extremely fascinating. Tersely worded, it can be quoted in full: No person accused of any offence shall be compelled to be a witness against himself. Three components can be identified: (i) the protection applies to a person accused of any offence, (ii) it prohibits said person being compelled to be a witness, and (iii) this prohibition applies only to the person concerned. The issues also become clear, therefore. How do we understand ‘accused of any offence’? What amounts to one being compelled? And, of course, when is someone a ‘witness against himself’? In this series of posts, I wish to address only the first of these three issues. In this post, I look at three decisions of the Supreme Court on the point to show how the approach adopted by the Court towards interpreting ‘accused of any offence’ suffers from serious flaws, and leads to seriously problematic consequences. In the next post, I’ll continue on this thread and suggest a different approach to answering the interpretive conundrum posed here.
Phase I concerns the first proper decision on Article 20(3), M.P. Sharma v. Satish Chandra [AIR 1954 SC 300]. The facts were simple. Investigations ordered by the Registrar of Joint Stock Companies revealed certain companies were engaging in fraudulent transactions. The Delhi Special Police Establishment (now CBI) required to seize the books of the concerns, and separate First Information Reports (FIR) were registered against different companies. Search warrants under Section 96 of the Cr.P.C. 1898 were issued and documents seized. The proprietors filed petitions under Article 226 challenging the searches as violating their fundamental rights under Articles 20(3) and 19(1)(f) of the Constitution. Only the Article 20(3) question was considered important. Eight judges delivered a unanimous decision, rejecting the claim. The Court noted the historical development of self-incrimination in India and mentioned how the idea always contained problems of balancing the needs of investigation with the protection. With this in mind, the Court explained all three of the facets identified above. I’ll restrict myself to the aspect of Article 20(3) being limited to a person accused of any offence. The Court held that the right extends to beyond the courtroom (yes, I’m cheating. This came in context of the ‘being a witness’ part), and then had to draw a line on how far did the right extend. In rather vague fashion, the Court said limited it to “a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution”. Importantly, the Court observed “whether it is available to other persons in other situations does not call for a decision in this case”.
The importance of this decision cannot be reduced despite the years that have passed. In choosing to expand the scope of Article 20(3) beyond the courtroom despite it having a qualifier (accused of any offence), the Court took an important decision. However, I argue that nevertheless the Court got this one slightly wrong. The problem is lies in the vantage point the Court adopts while viewing Article 20(3). The Court decides against a narrow approach, yes, but it still bases its decision by looking at the protection from that standpoint of the eventual proceedings in court. Compelled evidence is inherently unreliable for trial (for people lie when tortured), and such tainted evidence can arise from compulsion exercised beyond the courtroom. This reasoning is commonly touted as the basis for the protection only for such claims to be convincingly rebuffed time and again [For instance, Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37(4) U. Cin. L.Rev. 671 (1968); Amar & Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich. L. Rev. 857 (1995)]. The reason why focusing too much on eventual proceedings is a problem is not hard to fathom. Imagine a situation where you are not named in the FIR as an accused but are picked up by the police, forced into writing a confession, but the matter ultimately never goes to trial and are thus released from custody. The detention is not unlawful – the police can arrest suspects – so no Article 21 violation occurs. You were forced to incriminate yourself. But, according to M.P. Sharma, it is difficult to claim this as a violation of the right under Article 20(3). Difficult and not impossible, only because of the caveat, which was to get forgotten soon after.
The formal accusation referred to by the Supreme Court in M.P. Sharma must also be one that normally may result in prosecution (Thomas Dana v. State of Punjab, AIR 1959 SC 375). Prosecution refers to initiation of legal proceedings, i.e. a trial in this case. A formal accusation appears to have been used with the intention to create different classes of accusations. Formal here would mean ‘official’ (the other definition of the word being based on etiquette must be excluded), and the Court perhaps wanted to separate official accusations from those by private individuals. The police registering an FIR, is different from me filing a complaint against you at the local police station. So we find a gap emerge in the process; in the time when an accusation becomes a formal accusation. Here, remember, the Court issued a caveat – its judgment did not preclude an extension of the right under Article 20(3), but only provided some sort of minimum. This gap might yet be covered under Article 20(3), as the Court didn’t discuss such cases. The Court would have been wise to clothe the caveat with more flesh, as hindsight would suggest.
Phase II will look at two cases. The first is the unanimous decision of 5 judges in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry [AIR 1961 SC 29]. The case was similar on facts to M.P. Sharma; the only difference being that here there was no FIR against the companies or proprietors. An Inspector appointed under the Companies Act, 1956, called upon the appellants to furnish certain information. The Appellant challenged this investigation as being inter alia, contrary to Article 20(3). While observing the earlier judgment of M.P. Sharma, the 5 judges concluded that “the effect of this decision thus appears to be that one of the essential conditions for invoking the constitutional guarantee enshrined in Art. 20(3) is that a formal accusation relating to the commission of an offence, which would normally lead to his prosecution.” Did the inquiry here amount to such an accusation? No, it was more like a fact-finding commission and “the fact that a prosecution may ultimately be launched against the alleged offender will not retrospectively change the complexion or character of the proceedings”. The unanimous answer thus being, no violation of Article 20(3). The Court seems to have been referring to the caveat to the end of its decision. It observed “even if the clause ‘accused of any offence’ is interpreted in a very broad and liberal way it is clear that at the relevant stage the appellant has not been, and cannot be, accused of any offence.” Only to then say that such a broad interpretation does not appear to be “consistent with the tenor and effect of the previous decisions of this Court”.
This leads us to the second case, another 5 judge unanimous decision in Romesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940]. This case arose out of the old Sea Customs Act, 1878 (replaced by the Customs Act, 1962). The Appellant had been searched at Dum Dum Airport, Calcutta, and this search lead to recoveries of jewels and currency worth several lakhs of rupees. He was questioned under Section 171-A of that Act (after possibly being arrested, which is not entirely clear from the judgment), where disclosures lead to further recoveries. These discoveries made pursuant to this inquiry were assailed as being the result of the Appellant being compelled to incriminate himself. The Court’s reasoning while denying that Article 20(3) extended to the case is important: “a person arrested by a customs officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act … he is not accusing the person of any offence punishable at a trial before a Magistrate”. With this it would appear that the Court has taken a clear and consistent view on how to consider that gap we identified in the process. Anything prior to the formal accusation means no protection.
Have a look at the procedure under the Customs Act 1962 and other socio-economic offences such as the Foreign Exchange Management Act 1999, and the Narcotics, Drugs and Psychotropic Substances Act 1985. The formal accusation in these cases is a Complaint filed by the authorised officer, which is the result of an investigation. Here, there is no pre-investigative accusation drawn up by the authority like an FIR required under the Cr.P.C. The reason for this is a ridiculous deeming fiction which requires that we don’t call these officers police officers and by extension call these investigations enquiries, despite the officers having the same powers of investigation as conferred under Chapter XII of the Cr.P.C. [on this, see Sekhri, Confessions, Police Officers and Section 25 of the Indian Evidence Act, 1872, 7 NUJS L. Rev. 1 (2014)].
These socio-economic offences thus have extensive pre-trial powers during the ill-phrased enquiry stage. The Customs Act 1962 (successor to the Sea Customs Act, 1871), allows customs officers powers of ‘searches, seizure and arrest’. A customs officer can summon any person [Section 108] and examine her during the course of an enquiry into the smuggling of goods [Section 107]. Persons summoned are “bound to state the truth upon any subject respecting which they are examined or make statements”, and these enquiry proceedings are deemed to be judicial proceedings for Section 193 and 228 of the Indian Penal Code. So if you lie, perjury charges can follow. On top of this, the customs officer can arrest [Section 104] upon having reasons to believe that the person committed an offence punishable under Section 132, or 133, or 135, or 135-A or 136 of that Act. Detention can and will follow, and could possibly extend to 60 days as specified under Section 167, Cr.P.C. What the Supreme Court has done, is to exclude the right of self-incrimination from this entire process because of its focus on the actual realisation of proceedings as first seen in M.P. Sharma.
The steady growth of powers during this enquiry stage under socio-economic offences supports the theory that the Legislature is not blind to the line-drawing adopted by the Supreme Court. So what do we draw from this? Today you can be questioned under the threat of prosecution to supply potentially incriminating information. You can be arrested and detained during this process, but still the right under Article 20(3) remains beyond reach. Why? Because the accuser might not have found all that was needed from you to incriminate yourself.