(In this second post in a two-part series, Manasa Sundar Raman examines how, true to Agamben’s thesis, the “exceptional” remedy of making confessions to the police admissible has spilled over into “normal” judicial practice.)
In the previous post, the scope of right against self-incrimination and its dilution by Kartar Singh and PUCL were discussed. In this post, we will examine how the guidelines issued in Kartar Singh were inadequate to protect the right against self-incrimination resulting in police confessions increasingly becoming a norm.
Dilution subsequent to Kartar Singh
The guidelines suggested to the government in Kartar Singh were without adequate clarity on their applicability to future cases or even their rationale. Predictably, they have suffered dilution by subsequent Supreme Court judgments which condone non-compliance with them and the rules framed under Section 15 of the TADA.
S.N. Dube v. N.B. Bhoir, for instance, held that even if the Kartar Singh guidelines were not strictly adhered to, it would not affect the admissibility of the evidence. Shockingly, even though the accused had alleged coercion by the police officer, the plea was rejected since no specific instance of coercion was alleged against the concerned police officer. Thus, not only does the court discard the importance of the guidelines, it places the burden on the accused to show his confession was recorded in an atmosphere that was not free.
In Jameel Ahmed v. State of Rajasthan, the confessional statements so recorded by the police were not sent to the CMM or the CJM as required under Rule 15(5) of the Rules, and as per the Kartar Singh guidelines. However, the Court underplays the importance of the Magistrate and the guidelines by stating the CJM or CMM has to merely forward the confessional statement and, hence, the procedural lapse may be overlooked. It goes on to describe the Rules and guidelines as being “only directory and not mandatory.” This way, an important safeguard against the police extrapolating the confession was diluted.
Finally, in Gurdeep Singh v. The State (Delhi Admn.), one can clearly notice the kind of coercive and intimidating circumstances that can be wrought by the preceding rulings. Even though the accused was handcuffed with a policeman holding him in chains and armed guards surrounding the room, the Court dismissed the contention of a confession being non-voluntary stating that these measures were intended and essential for security purposes. As a way of justification, once again, the Court relies on the objects for the enactment of TADA and the necessity of having stringent provisions to assist the prosecution.
From the above case-laws we see how the courts in their enthusiasm to convict terror-suspects, dispense with crucial guidelines issued by Kartar Singh and Rules under TADA. Thereby, even if the ratio in Kartar Singh read with the guidelines have the effect of securing a meagre right against self-incrimination (in reality, it did not), the rhetoric of terrorism has undermined even this.
Characterising the Judicial Response
In most of the above cases, the rhetoric that is used prominently includes the image of the innocent victim of terror. This way the Court is able to depart from the traditional paradigm of a trial where the accused stands against the overwhelming might of the state machinery (and therefore has certain rights such as right against self-incrimination, right to silence, presumption of innocence) to a different paradigm where the accused has wronged the several innocent victims. The role of the trial process under the new paradigm is to strike a balance between the rights of these two individuals. By portraying the State’s citizens as victims of terror, the Court is able to turn a blind eye to his presumption of innocence or right against self-incrimination.
Moreover, this has changed the role of the higher judiciary. As pointed out by Prof. Mrinal Satish and Prof. Aparna Chandra, the judiciary has shifted from being the “sentinel on the qui vive” (as famously observed in State of Madras v. V.G. Row), duty-bound to zealously guard fundamental rights, to a pragmatic mediator that balances competing claims of ‘national security’ and ‘fundamental rights’. The pragmatic mediator attitude can once again be seen when the Court endorses appeals to observe human rights during the investigation and trial stages. This is not done as a reiteration of the State’s legal or moral duty but for instrumental reasons of preventing further terrorism. As a consequence, even in cases where the violations are blatant, there is a tendency for judges to defer to the legislature as it concerns ‘terrorism’ and prescribe guidelines, without actually striking it down.
Admittedly, the judiciary may not possess the same expertise as the legislature or the executive in evaluating counter-terror measures. However, it would be far more respectable and healthy for the rule of law if the judiciary candidly conceded that it is ill-equipped to deal with the problem of terror and, thus, give a wide leeway or ‘margin of appreciation’ to the State in such cases. Accordingly, it could have formulated a lower level of review when the object of the statute was to counter terrorism or read in a national-security exception to Article 20(3). However, we see no such admission of its inadequacy or a well-defined exception to terror-cases. In contrast, in their eagerness to uphold the statute, the judgments simply refer to the legislative competence of the state, echo the State’s high-pitch alarmist attitude to terror and dilute the entirety of the Article 20(3) guarantee.
The above argument can also be illustrated using Article 14 analysis used in Kartar Singh. In evaluating whether it was open for the legislature to make confessions before the police admissible, the judges reduce the issue to one where ‘different mode of proof’ is prescribed by the legislature for a certain class of offences. The rationality behind legislative classification is not questioned at all, instead the analysis is limited to the competence of the legislature to make such a classification without evaluating the rational nexus of such a classification to the object sought to be achieved. In not doing so, the judges leave open the question of whether it would be open for the legislature to make classifications such as ‘sexual offenders’ and ‘other offenders’; ‘white-collar crimes’ and ‘other crimes’ and make confessions before the police selectively admissible for one set? Can different classes of crimes have ‘different modes of proof’? The judgment reduces it to a question of legislative competence.
No analysis is presented with respect to Article 20(3). While the intention may have been to dilute the standards for terror-related cases alone, the judgment by not making that intention explicit jeopardises the right as a whole. Even if the Court had chosen to explicitly hold ‘terror cases’ as an exception where it is acceptable for confessions made to the police to be admissible, the substantial dilution of Article 20(3) could have been prevented. The result is that the diluted right to self-incrimination has now become the normalised standard under the Constitution.
Normalisation of police-recorded confessional statements
Over the years, we see that the Courts have become oblivious to the so called “terrorism” exception. Thus, evidence obtained under such exceptional statutes are being used for the trial of regular offences.
In State v. Nalini, the accused was charged with offences both under TADA and IPC. The Court, in paragraph 81 of the judgement held that confessional statements recorded under Section 15 of TADA would apply and become admissible as substantive evidence for all offences including the non-TADA ones. In holding this, it specifically overruled another SC decision (Bilal Ahmed Kaloo v. State of Andhra Pradesh) on point. Further, the evidence so recorded could also be used against the co-accused.
In view of the conflict between the above two cases, the issue was referred to a constitutional bench in State of Gujarat v. Prakash Kumar which upheld the Nalini rationale. It said that the confession statement recorded under Section 15 of TADA is admissible for the offences under any other law which were tried along with TADA offences notwithstanding the fact that the accused was acquitted of offences under TADA in the same trial.
In State of Gujarat v. Mohammad Atik, the issue was whether a confessional statement recorded by a police during investigation under TADA could be used for a completely different trial where investigation was done by a different set of police officers against the same accused. The Court held that in the absence of any statutory inhibition, there is no need to introduce a further fetter against the admissibility of the confessional statement. Thus, there is no cognisance of the fact that a police-recorded confession is admissible in only very exceptional cases. Once admissible, it is treated on par with any other evidence and there is no re-examination of the voluntariness of that evidence in consideration of the circumstances under which it was recorded.
From the above line of cases, we notice a disturbing trend where the Courts adopt a dangerous and cavalier approach to confessional statements recorded by the police. They are unmindful of the exceptional circumstances under which this exception was sought to be created and constitutionally justified. Instead, there is an increasing trend to issue guidelines to be complied with. These too are not rigorously enforced. This way, the extraordinary standards which are judicially condoned for addressing ‘terrorism’ slowly seep into the ordinary criminal justice system, and are normalised.
The blame for this undoubtedly falls on the majority opinion in Kartar Singh. Not only does it depart from the progressive interpretation given to the rights of the accused in Nandini Satpathy, it does not adequately frame admissibility of confessions recorded by the police as a strict exception for terror-cases. Indeed, by making it wholly a question of legislative competence, the legal position is such that if Section 25 and 26 of the Evidence Act were replaced completely by a provision akin to Section 32 of POTA, the existing precedent would make it wholly constitutional. Fortunately, the POTA has been repealed and the legislation which replaces it – the Unlawful Activities (Prevention) Act, 2008 contains no such provision. However, the constitutional guarantee has been undoubtedly diluted.
In view of the progressive interpretation given to the right of accused against self-incrimination at the interrogation stage in Nandini Satpathy, and the absence of any exception to Article 20(3), the judgment of Kartar Singh was grossly regressive. It can even be argued that the judicially created exception for admissibility of confessions made before the police is unconstitutional.
However, even assuming it is constitutional, Kartar Singh, by not carving out a specific and deliberate exception for terror cases and by employing vague rhetoric about the necessity felt by the Parliament has severely diluted the right as a whole. Read with subsequent judgments where confessional statements made in coercive atmospheres have been held to be admissible, it is safe to say that guarantee against self-incrimination has virtually become meaningless.
More alarmingly, Courts show no hesitancy in applying confessions obtained under such extra-ordinary statutes designed to meet exceptional ends in normal criminal justice administration. This results in a normalisation of these standards.
(Manasa is a Vth Year student at the National Law School of India University)