Tag Archives: Article 20(3)

The Gujarat High Court’s Voice Spectrograph Decision – II: Guest Post – Between a Rock and a Hard Place

(In this Guest Post, Abhinav Sekhri carries forward the discussion on the Gujarat High Court’s recent judgment on the constitutionality and legality of voice spectrography).

A Single Judge of the Gujarat High Court handed down the decision in Devani v. State of Gujarat [Spl. Criminal Application Direction 5226 of 2015, decided on 18.01.2017], which formed the basis of the last post on this Blog. To recount, the decision agreed with the Supreme Court’s conclusions in Ritesh Sinha [(2013) 2 SCC 357] that compelling a person accused of an offence to undergo ‘Voice Spectrography’ does not amount to making her a witness against herself. Having held so, Pardiwala, J. then considered whether there was any statutory basis to permit such testing by the police. This was the issue on which the two judges in Ritesh Sinha disagreed, and is now pending before a larger bench for resolution. Pardiwala, J. found no such basis, and thus held that the Petitioner could not be compelled to undergo Voice Spectrography. This brief post follows up on the analysis offered previously and develops those ideas further.

‘Evidence’ in Article 20(3) and the Physical-Mental Divide

To decide whether or not the right against self-incrimination, guaranteed under Article 20(3) of the Constitution, is violated, three questions need to be affirmatively answered. First, that the person concerned is accused of an offence. Second, this person is required to give evidence against herself. And, finally, that the person must be compelled to incriminate herself. In Devani, only the second of these questions arose: Pardiwala, J. had to decide whether the taking of voice samples/exemplars could amount to evidence?

Section 3 of the Indian Evidence Act contains a very broad definition of the term ‘evidence’. Does the same definition apply here? It doesn’t. As Gautam pointed out, the interpretation of this part of Article 20(3) is governed by State of Bombay v Kathi Kalu Oghad [1962 (3) SCR 10] which was decided by eleven judges. Deciding whether or not handwriting samples and blood samples were within the pale of Article 20(3), the Supreme Court gave us the term ‘physical evidence’. By prefacing ‘evidence’ in this manner, the Supreme Court excluded blood samples and handwriting samples from the mix. The logic essentially being, that these materials were inherently immutable and were only being used for drawing comparisons with material already collected during the investigation. Enter, Selvi v State of Karnataka [(2010) 7 SCC 263]. Decided by three judges, it considered whether an accused could be compelled to undergo either brain mapping (BEAP), polygraph tests, or narco-analysis. The three judges held that compelling a person accused to undergo any of these would violate the constitutional right under Article 20(3). Now, you may correctly ask, that was it proper to place all three tests in the same bracket? After all, the drugged state of narco-analysis involves persons making statements, as opposed to polygraph tests relying upon physical responses to stimuli (usually questioning). On the issue of polygraph tests, the Court held that such a physical response was as good as a statement. The response involved a unique communicative value, which ordinary ‘physical evidence’ would lack.

I agree that Pardiwala, J. is not entirely correct in narrowly construing the contours of Selvi by suggesting that the decision was solely concerned with what he calls ‘psychiatric evidence’. The problem really is how broad the conclusions in Selvi were, as Gautam pointed out. While it attempts to distinguish Kathi Kalu Oghad, the logic employed for bringing polygraph tests within the confines of Article 20(3) does not hold firm. This is because even in a polygraph test the physical responses are used to compare. There is a set of normal readings taken when the person responds to supposedly harmless questions. After this, the uncomfortable questions are asked, and the readings obtained by both the sets of responses are then compared. There is a way to keep both Kathi Kalu Oghad and Selvi, perhaps. This would look at how the preliminary readings in polygraph tests are also obtained under coercion, as against a case like blood samples where material is obtained wholly independently.

Self-Incrimination and Voice Exemplars

The previous post made important observations about the logic behind Article 20(3) which receives scant attention. Gautam argues that the employment of the ‘physical evidence’ concept was an attempt to balance the dual claims of the crime control vs. due process approach. Developing his thoughts further, one may suggest that Selvi shows a shift from focusing on the crime control aspects to the issues of due process. In Kathi Kalu Oghad, we get a clear idea that the Court saw Article 20(3) as a means to ensure the quality of evidence at trial remained of a sterling quality. While persons may give false testimony under pressure, blood never lies, and so it made no sense to exclude it from the possible evidence that a judge may consider to decide issues at trial. Fifty years later, the three judges in Selvi are at pains to link Article 21 to Article 20(3). There is as much attention placed upon the manner in which the evidence is obtained, rather than solely judging its quality. Thus, the Court appears more willing to look at issues such as particular techniques violating the mental privacy of the accused which it earlier would not rarely consider.

The problem with making claims about ‘shifts’ is that there needs to be something more to suggest a trend. Unfortunately, I can offer nothing by way of evidence, and would rather classify Selvi as a one-off event in the largely depressing judicial history of Article 20(3). On each of the three questions that I identified, the Supreme Court has consistently narrowed the scope, only to render this constitutional protection non-existent for large swathes of the criminal law that are today administered by agencies other than the khaki-clad police.

Moving on to considering the particular issue at hand, then. I agree with Gautam that the ‘physical evidence’ conception is not the answer for a conceptually rigorous model for understanding the right against self-incrimination. But I do not think that the issue of voice sample poses any great difficulty to the existing setup and thus calls for reform will not find many takers, yet. If we were to look at this issue of voice samples from the lens of Kathi Kalu Oghad, it would be argued that the voice sample is obtained to compare it with the tape recording. Voice, like handwriting, is quite immutable, making it a fit for the ‘physical evidence’ category. The approach offered by the Selvi would offer the same result. The voice samples here have no communicative quality of their own: they are purely for purposes of comparison with evidence that exists independent of the person. The big flaw in this entire claim is the idea that the human voice is immutable since there is material to suggest otherwise (something that Devani does not fully address). Assuming there is some certainty on that front, it is difficult to argue that the technique of Voice Spectrography would violate Article 20(3).

Creating a Statutory Basis

The second part of the decision is a familiar tale of woe. Pardiwala, J. traverses through the entire gamut of statutes in the field in his search for some basis to ground this technique, only to end his search in vain. He concludes that Voice Spectrography could therefore not be compelled upon an accused, and offers pointers to the State Government on how to remedy the situation before finishing his decision. The tale is familiar because it can be recounted for most investigative developments in India. My blog had earlier considered one example in Section 311-A of the Cr.P.C.; how it took several decades for such a common investigative tool (taking handwriting samples) to receive statutory support, only for it to be riddled with problems.

The Criminal Procedure Code, 1973 is a curious mixture of highly particular rules combined with vague standards. The part on police investigations are a good example. Police discretion on when to investigate a case is couched in vague terms, coexisting with provisions stipulating meticulous rules for things such as inquests. Do we, then, really need a clear statutory basis for what techniques can the police administer? Pardiwala, J. himself suggests that there may not be such a need when he invites the State Government to consider bringing in Rules to permit Voice Spectrography. Regardless of where one stands on the security-liberty paradigm, few would dispute the need for law to keep pace with technology and for the police to have up-to-date investigative tools at its disposal. This raises  questions on whether it makes sense to continue requiring concrete statutory backing for the particular techniques that the police can adopt, in an environment that is notorious for belaboured law reform. The spectre of abuse and misuse looms large though, leaving us with that familiar feeling: of being between a rock and a rather hard place.

 

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Privacy, Self-Incrimination and the Constitution – IV: Selvi and the Middle Way

Selvi vs State, decided by a three-judge bench in 2010, is the Supreme Court’s most recent – and by far most detailed – engagement with Article 20(3). Selvi involved a batch of appeals challenging the constitutionality of three investigative techniques: narco-analysis, the polygraph test, and the Brain Electrical Activation Profile. The nature of these processes is important. In narco-analysis, an intravenous injection of a drug into a subject’s blood-stream sends her into a hypnotic state, lowering her inhibitions, and making her more likely to divulge information.  In discussing the comparative jurisprudence on narco-analysis, the Court quoted both Horvath vs The Queen, which we had discussed in the last post, and the American Supreme Court case of Townsend vs Sain, in which Warren J. held that “if an individual’s “will was overborne” or if his confession was not “the product of a rational intellect and a free will,”, his confession is inadmissible because coerced.”

A polygraph test, on the other hand, measures various physiological responses (respiration, blood pressure, blood flow etc.) during questioning, and makes determinations about the truth or falsity of the subject’s statements, based on the changes in those responses.  Similarly, the Brain Electrical Activation Profile (BEAP) test measures responses within the brain, in order to ascertain whether or not the subject has recognised the stimuli to which she has been exposed.

Obviously, out of these three tests, only narco-analysis involves “testimony” in the classic sense: communicating information through words, written or spoken. One of the central issues in the case, therefore, was whether recording physical stimuli amounted to compelling a person to be a “witness against himself”. It is in this backdrop that the Court embarked upon a detailed analysis of whether these investigative procedures fell foul of Article 20(3). Up front, it laid out the conceptual foundations of the Article:

“Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily… when a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the `rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable… the concerns about the `voluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements – often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, `the right against self-incrimination’ is a vital safeguard against torture and other `third-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such `short-cuts’ will compromise the diligence required for conducting meaningful investigations.” (paras 91 and 92)

The first of the Court’s rationales – reliability – straightforwardly corresponds to the crime-control model. The second – voluntariness – seems, at first sight, to correspond to the due process model, but in answering the question, “why is voluntariness important?”, the Court complicates the issue: it mentions bodily integrity and dignity (in the context of torture and other third-degree methods), but also notes that the “diligence” required for “meaningful investigations” will be “compromised” if the investigators can take short-cuts such as torture. It is unclear, therefore, that even within the “voluntariness” framework, whether the focus is on (due-process based) concerns of dignity and integrity, or of (crime-control based) diligent investigations.

After examining a plethora of precedents on self-incrimination the world over, the Court then clarified some of the basic tenets of Article 20(3): “accused of an offence” covered a wide ambit, that included people formally charged of offences, as well as people whose answers could expose them to criminal charges (paragraph 109); incriminatory statements included statements that the prosecution could directly rely upon to further its claims, as well as derivative statements. The corse of the Court’s analysis, however, was in examining whether “testimonial compulsion” was involved in the three impugned techniques. Precedent – as we have seen – drew a distinction between testimony and physical evidence (fingerprints, blood samples etc.) In Kathi Kalu, this distinction had been rationalised on the ground of “volition”, in the sense of unchangeability. Under this logic, narco-analysis would be borderline unconstitutional (depending on whether or not you take answers given under hypnosis to be “volitional” or not), whereas polygraph tests and brain-mapping would be definitively constitutional.

This argument was buttressed by the fact that Ss. 53 of the CrPC allows for the examination of the accused on the request of the police, of “blood, bloodstains, semen… sputum… sweat…” etc., through the use of “modern and scientific techniques including DNA profiling and such other tests…” It was argued that the three impugned techniques ought to be read into this Section. The Court, however, rejected this argument, holding that S. 53 clearly referred only to the examination of “bodily substances”, whereas the impugned techniques involved “testimonial responses” That, however, is not self-evident: what is it about physiological reactions of the brain and other parts of the body, that put them within the category of “testimonial responses”?

The Court answered this question by going back to Kathi Kalu, and holding that a testimonial act is equivalent to “the imparting of knowledge by a person who has personal knowledge of the facts that are in issue.” (paragraph 158) And then the Court noted:

Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact.” (Para 160)

And, immediately afterwards:

“The compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.”

Of course, in a trivial way, being forced to provide a blood sample or a fingerprint also involves conveying personal knowledge (of your blood group or your fingerprint pattern) irrespective of your volition. In earlier cases, the Court had gotten around that by arguing that a blood sample or a fingerprint was innocuous in itself – only when subsequently corroborated with another piece of evidence (fingerprints at the scene of the crime), did it become incriminatory. However, that reasoning is not open to the Court here, because physiological responses to stimuli are also innocuous in themselves. On the other hand, it seems clear from paragraph 160, that what the Court was concerned about was – in a phrase – the privacy of the mind. This becomes clearer subsequently, when after an excursion into the constitutional right to privacy under Article 21, the Court noted:

While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the `right to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes... so far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty’ under Article 21. Hence, our understanding of the `right to privacy’ should account for its intersection with Article 20(3). Furthermore, the `rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self-incrimination.” (Paras 190 – 193)

The shift from Kathi Kalu is crucial. In that case, “volition” – in the sense of changeability – played the crucial role, and we saw how it was conceptually connected with the crime-control model: information that you had no power to change could not possibly be fabricated. In Selvi, although the Court embarked upon a discussion of the reliability of the investigative techniques, ultimately, the distinction it drew was between “physical privacy” (blood samples, fingerprints) and “mental privacy”; linking the word “witness” to testimony, and then understanding “testimony” as the impartation of information present within a person’s mental sphere, the Court placed a certain conception of mental privacy – understood as autonomous mental processes – at the heart of the guarantee against self-incrimination.

While the result of Selvi was the unconstitutionality of three specific investigative procedures, its implications for criminal/constitutional jurisprudence are more significant. In Selvi, we have a strong recognition of the role of the due process model as the foundation of criminal procedure and associated constitutional guarantees. It therefore provides a template for future cases where the crime-control model and the due process model pull in opposite directions, and the Court is obliged – as it was in Selvi – to balance the two.

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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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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.

 

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