(In this second and concluding post, Abhinav Sekhri, a Delhi-based criminal lawyer, discusses the application of Article 20(3) to persons “accused of an offence”)
Previously, we talked about how the words ‘person accused of an offence’ present in Article 20(3) of the Constitution of India have been interpreted by the Supreme Court. We saw that the Court had understood this phrase as describing a person subject of a formal accusation, akin to a FIR. This naturally created a lacuna for the time it takes for an informal accusation against one to become a formal accusation. While ordinary investigations for IPC offences may confer little investigative mettle to the Police before a formal accusation, the same is not the case in statutes creating socio-economic offences, such as smuggling. Statutes such as the Customs Act 1962, and the NDPS Act 1988 vest officers with extensive investigative powers before a formal accusation is levelled.
The Supreme Court during the 1960s consistently held that no self-incrimination could arise if persons were compelled to give evidence against themselves at these stages. I have expressed deep reservations about this approach, and in this part of my argument, I flesh out a possible alternative approach to answering the problem. While nothing would be better than an amendment to either the Constitution or the Cr.P.C. for providing clarity, we know how remote the possibility of such a non-political amendment getting tabled in Parliament is today, and must make do with innovating from the existing morass of laws. I thus propose that the phrase ‘person accused of an offence’ must be understood to include detention in custody by any authority during an investigation. I will elaborate on the benefits of this later, and require the reader to be content with just understanding my proposal for now. Simply put, if an authority seeks your detention for more than the 24-hour minimum period (before it needs to produce you for the first time before a magistrate), you necessarily must be able to exercise your right against self-incrimination.
Deepak Mahajan and a Lost Opportunity
The judicial history of interpreting Article 20(3) reflects a certain reluctance to re-evaluate basic premises and stick to formulas. The near-vehement consistency in the Supreme Court’s decisions M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] onwards on the point is remarkable. There is not one stray decision in all those years. The scope for innovation when arguing this issue before a Division Bench in the 1990s was thus quite slim. Still, Directorate of Enforcement v. Deepak Mahajan [AIR 1994 SC 1775], is a landmark decision in its own right.
The offence in question was under the erstwhile Foreign Exchange Regulation Act 1973 [FERA], which followed in the footsteps of all socio-economic offences in vesting great investigative powers before filing of a formal accusation., including that of detention in custody [Section 35 FERA]. The Respondent here had been arrested and detained under Section 35 FERA – the issue was whether a Magistrate could remand him to judicial custody. Section 167 Cr.P.C. provided for remand by magistrates, but applied during investigation. But the Supreme Court itself had created a fiction that what officers did under the FERA and other such offences is not an “investigation”. To now apply Section 167 Cr.P.C. would mean that it was investigation, and that the person detained was a ‘person accused of any offence’ since investigation presumed formal accusation. Interestingly, the Delhi High Court held that Section 167 Cr.P.C. did not apply for these reasons.
Reading the decision, it is clear that the Supreme Court knew exactly how tricky the issue was. It reversed the conclusions of the High Court and held that Section 167 Cr.P.C. would apply to allow those arrested under Section 35 of FERA and other socio-economic offences to be remanded to judicial custody. While doing so, the Court did not extend the protection of Article 20(3) to such persons who are remanded to custody. With due respect, the basis for this decision is utter rubbish, and the Court horribly let itself down. The refusal to extend Article 20(3) was despite the admission that the “words ‘accused’ or ‘accused person’ is used only in a generic sense in Section 167(1) and (2) denoting the ‘person’ whose liberty is actually restrained on his arrest by a competent authority on a well-founded information or formal accusation or indictment.”
This was the first time in nearly 50 years that the Supreme Court had to consider the text of Section 167 Cr.P.C. together with the right under Article 20(3). The decision shows how the Court goes to absurd lengths to try and avoid this connection, where at one point it distinguishes the binding Constitution Bench decisions on Article 20(3) by saying that none of them applied to the ever-so slight issue of actual detention but only with admissibility of evidence. This is the reason why I term the decision a lost opportunity, for I argue that a far more consistent and coherent approach to Article 20(3) lies in considering it together with Section 167 Cr.P.C. and the idea of remand.
Re-Drawing Lines in Article 20(3)
The illogical approach of the Supreme Court was pushed to theoretically unbelievable limits in Deepak Mahajan where it held that persons arrested under laws such as the erstwhile FERA could even be remanded to judicial custody under Section 167 Cr.P.C. yet remain beyond the pale of Article 20(3). If nothing else, this by itself should make the reader a bit concerned about how the basic premise of Article 20(3) is being understood today. I propose a simpler alternative not located in the judicial precedent – connect the idea of remand to custody with terming someone as ‘accused of any offence’.
Why do we have a right against self-incrimination in the way we do under Article 20(3)? There is no one-size-fits-all rationale here, but several that apply. An interpretation of the right that tries to be in sync with these different claims is bound to bring a more wholesome solution to the problem. By providing this right, the legal system attempts to expel potentially unreliable evidence obtained through coercion. But protection from being compelled to incriminate oneself is also a basis to ensure protection from coercion itself, and all the necessary evils a system using coercion brings. At the same time, having an unbridled right to stay silent can naturally dent any investigation and we often see potentially sensitive legislation contain relaxations from certain legislative expressions of self-incrimination [the erstwhile Prevention of Terrorism Act 2002 allowed judges to draw an adverse inference against persons refusing to tender voice samples]. Not providing the right to every person but only those accused of any offence is the Constitutional balancing act.
The fact that Section 167 Cr.P.C. is the first place in the criminal process that the word ‘accused’ finds a mention to describe the affected person is not pithy phrasing. The reason being that a request by an officer seeking further remand to custody of any person shows that at that time that there is something in the allegations against that person. Otherwise what is the need to seek further custody in the first place? It is irrelevant whether the person so detained is not ultimately proceeded against. To hold that self-incrimination should only protect such eventual accused is solely looking to the evidentiary purposes of the right and completely ignores the idea of personal protection it entails. 24 hours also protect the needs of investigation, and is a Constitutionally prescribed limit [Article 22].
Furthermore, such a statutory approach allows for a more wholesome take on the investigative and evidentiary process at large. Having begun by looking at the Cr.P.C., we must now turn to the Evidence Act 1872; Sections 25 and 27 more specifically. These provisions address two concerns that arise from my proposal from the standpoint of both prosecution and defence. If you are forced by the police to confess before expiry of 24 hours, does that render you defenceless? Section 25 negates such a conclusion, for it says that “no confession made to a police officer shall be proved as against a person accused of any offence”. This ‘person accused’ is at the trial, remember, and would cover our initial un-protected suspect. On the other hand, what investigation can the police conduct with Article 20(3)? Section 27 of the Evidence Act becomes relevant here, and allows the limited use of information if any fact is discovered consequent to such information being provided by the accused.
The current approach to the words ‘person accused of any offence’ in Article 20(3) established from the decision in M.P. Sharma was useful but short-sighted. It was useful because it provided a simple solution to a difficult problem. It was short-sighted for it failed to consider the problem from all angles. This became evident with the growth of a peculiar form of socio-economic offences. The interaction of the right against self-incrimination with the procedure created under these offences that have come to represent a vast section of the criminal law in India, is illogical at best and horrendous at worst leaving the right utterly redundant. I am the first to admit that my alternative setup to Article 20(3) suffers from critical flaws of design. I do consider, however, the need for other ideas imperative, and the essence of my own argument as being sound.