Tag Archives: self-incrimination

The Gujarat High Court’s Voice Spectrography Judgment, and the Limits of Selvi vs State

On the 18th of January, in Devani vs State of Gujarat, a single judge of the Gujarat High Court handed down an interesting ruling on the constitutionality and legality of voice spectrography as an investigative technique during criminal proceedings. The writ petitioner had been charged with offences under the Prevention of Corruption Act. The main piece of evidence was a telephone conversation between the petitioner and the person from whom he had allegedly demanded a bribe. The Investigating Agency wanted to subject the Petitioner to a voice spectrography test, so that it could compare the two voice samples. The Petitioner challenged this.

The Court’s decision was delivered in the context of a split opinion by a two-judge bench of the Supreme Court, delivered in 2012, in Ritesh Sinha vs State of U.PJustice Aftab Alam had held that in the absence of express statutory authorisation, investigative agencies could not compel an accused to undergo a voice spectrography test. Justice Ranjana Desai had disagreed. While the two judges were in apparent agreement over the proposition that voice spectrography did not violate the right against self-incrimination under Article 20(3) of the Constitution, in view of the disagreement between them, they referred the case for resolution by a three-judge bench. This bench has not yet been constituted.

In Devani, the Gujarat High Court agreed with Justice Alam and disagreed with Justice Desai, holding that the investigating authorities could not legally compel an accused to undergo a voice spectrography test. The Court based its judgment on statutory interpretation, finding no warrant for the taking of voice samples under the existing criminal procedural framework. However, it also found that the taking of voice samples did not violate Article 20(3) of the Constitution. It is to this finding that we turn first.

Article 20(3)

The Court’s examination of the self-incrimination issue took place – as it had to – in the context of the Supreme Court’s 2010 decision in Selvi vs State (previously, on this blog, we have discussed Selvi and the right against self-incrimination under the Indian Constitution in some detail). Readers will recall that Selvi – a three-judge decision of the Supreme Court – had clarified some of the conceptual underpinnings of the right against self-incrimination that had been left open in the previous judgment of Kathi Kalu Oghad. The question in this case was how the Gujarat High Court would interpret Selvi, and how it would thread the needle between Kathi Kalu Oghad, which had held the taking of fingerprints and handwriting samples was consistent with Article 20(3), and Selvi, which had held that narco-analysis, brain mapping, and the polygraph test, were not. In other words, what was the deeper conceptual basis that underpinned the spectrum between fingerprints and narco-analysis, and where did voice spectrography fall on this spectrum?

The Gujarat High Court’s reading of Selvi was as follows: Selvi, it held, had prohibited the compulsory psychiatric examination of the accused. However, a voice spectrography test – which only involved the subject speaking something into a recorder, and subsequent analysis of his voice patterns – did not come within the ambit of “psychiatric examination“. Consequently, voice spectrography was not hit by the Selvi bar, and was therefore constitutional (paragraph 44).

It is submitted, with respect, that the High Court’s reading of Selvi is unnecessarily narrow, and is not borne out by the decision and reasoning in that case. Recall that, in the last analysis, in Selvi, the intellectual foundation of the Court’s judgment was the idea of mental privacy. In paragraph 160 of that judgment, the Court held:

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)

On, in other words, the right against self-incrimination (among other things) was aimed at protecting the mental inviolability of an accused during the course of a criminal proceeding.

The Court in Selvi went on to note:

“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.”


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)… 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)

Consequently, Selvi went much further than simply prohibiting compelled “psychiatric examinations”. It located its decision within the framework of personal autonomy, the right to remain silent, and mental privacy.

However, it is precisely within this context that the issue of voice spectrography attains an almost intractable difficulty. If you look at the issue from one perspective, it seems clear that voice spectrography falls squarely within the Selvi prohibition. The mind is centrally involved in the act of speaking, and if “mental privacy” is to be understood in this sense, compelling a person to speak, and then using his voice to determine other relevant facts in a criminal proceeding, is certainly an invasion of mental privacy. Compelling a person to speak certainly violates their choice between speaking and remaining silent. It is certainly an interference with her “mental processes“. And finally, it does seem that what happens in a voice spectrography test is very similar to polygraph tests and brain mapping – bodily stimuli are mapped and measured. The fact that in one case, it is stimuli from the brain, and in another, voice patterns, ought not to make a difference, because – as discussed above – speaking is a direct result of mental activity.

Examined another way, however, the issue is much more complex. While speaking is a result of brain activity, the crucial thing to note in a voice spectrography test is that it is not about what the speaker is saying – that is, not about the content of her voice – but about her voice as a bodily, physical phenomenon. In this sense, voice spectrography seems much closer to fingerprints, blood samples, and DNA, than it does to narco-analysis. In a similar sense, it seems a stretch to say that the examiner is deriving knowledge from the subject’s mind. Although speaking is a result of a mental process, given that the brain is, ultimately, responsible for keeping the human body alive, every other bodily function can, ultimately, be traced back to the brain. Here, again, given that the content of what the speaker says is not at issue, it does seem that voice samples are physical phenomena, in the same sense that blood or DNA is.

What this reveals, I suggest, is that ultimately, Selvi’s neat distinction between the physical and mental, between the taking of physical samples (blood, DNA, hair swabs, fingerprints) on the one hand, and interference with mental processes and invasion of mental privacy on the other, breaks down on closer examination. It breaks down in cases such as voice spectrography, where the physical/mental binary simply loses its valence as an explanatory device.

As I had argued in my essay on Selvi, the distinction between the physical and mental in that case was drawn in an attempt to strike a balance between two models of the criminal process: the crime-control model, which seeks to remove obstacles from investigating agencies in their attempt to discover the “truth”, and the due process model, which places great stress on the fundamental rights of the accused. By limiting the right against self-incrimination under Article 20(3) to invasions of mental privacy, the Court attempted to balance the two models. A case like Devani suggests that more work needs to be done to achieve a clear and coherent balance.

Statutory Analysis

Although not strictly within the scope of this blog, a word ought to be said about the second part of the judgment. The Court undertakes a thorough analysis of laws such as the Identification of Prisoners Act, the Code of Criminal Procedure, and the Evidence Act, all of which allow for various situations – and methods – by which investigating agencies and judges can act upon the body of the accused (compelling her to yield blood samples, DNA, sputum, hair swabs, fingerprints etc.) The Court finds that nowhere is there an express authorisation to take a voice sample, and nor can such an authorisation be read into the statutes. Consequently – and despite its misgivings on this issue as a matter of policy – the Court holds that, under the existing legal regime, compelled voice spectrography is not permissible. The Court’s analysis – from paragraphs 47 to 100 – repays close study, not simply because it is an excellent piece of statutory interpretation, but also because the Court subordinates its own sense of what might be desirable as a matter of legal policy to an autonomous reading of the existing law as it stands, and refuses to step an inch beyond the law. This is a phenomenon that has been falling distressingly out of fashion in recent years.




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Guest Post: The Right Against Self-Incrimination and its Discontents – II

(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.


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Guest Post: The Right against Self-Incrimination and its Discontents

(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

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.

 Phase II

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.

The Problem

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.



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Guest Post: Admissibility of Confessions to the Police: Normalising a State of Exception – II

(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.

Concluding Remarks

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)

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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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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 the Constitution – III: “Volition”

In the last post, we saw that in Kathi Kalu Oghad, the Supreme Court held that what distinguished a compelled fingerprint scan from compelled self-incriminatory testimony was the issue of volition: one’s fingerprint pattern was independent of one’s volition, while testimony (spoken or written) was not. In linking volition with changeability, the Court seemed to adopt the crime-control model as the basis of Article 20(3). The reason why non-volition brought fingerprints out of the scope of Article 20(3) was because the accused was powerless to change or affect them in any way; in other words, fingerprints had an objective, verifiable existence beyond the control of the accused, and consequently, were not amenable to deception or falsification. Thus, because of their accuracy (as opposed to spoken or written testimony), even producing them through compulsion passed constitutional scrutiny.

In linking voluntariness with veracity (via changeability), the Court was tapping into an established common-and-statute law tradition. Consider Section 24 of the Evidence Act which, in popular parlance, is understood to exclude involuntary confessions. Section 24 renders irrelevant confessions that are obtained through “inducement, threat or promise… proceeding from a person in authority and sufficient… to give the accused person grounds… for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.” The purpose is clear: there is a good chance that statements made in order to obtain a benefit or avoid an evil are false. More specifically, Halsbury’s Laws of England define a person’s statement to be “voluntary” as long as “it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in author­ity, or by oppression.” This rule – in almost exactly the same wording – was also laid down by the Privy Council in the 1914 case of Ibrahim v The QueenAgain, the concern seems to be – following the crime-control model – that fear of prejudice and hope of advantage are likely to taint the accuracy of the statement in question.

It is in this context that the 1979 Canadian Supreme Court decision of Horvath v The Queen assumes tremendous importance. In Horvath, the appellant’s mother was murdered in her bed one morning. The appellant, who was seventeen years old, was arrested, and subjected to a three-hour interrogation. He then confessed, but soon retracted. The next day, he underwent a four-hour interview with a polygraph operator, during which he made certain self-incriminatory statements, and at the end of which he wrote a signed confession. At the trial, a psychiatrist testified that for certain periods during the interview, the appellant had been in a “light hypnotic state“. The question before the Court was whether statements made under and immediately after light hypnosis were “voluntary” or not. The trial judge held that the statements were inadmissible; the Appeals Court reversed, on the basis of the narrow definition of “voluntary” in Ibrahim v The Queen. The case went up in appeal before the Supreme Court. By a narrow, 4 – 3 majority, the Supreme Court allowed the appeal, reversed the decision of the lower court, and restored the trial court’s order of acquittal. The dissenting judges based their decision on a strict understanding of “voluntary”, as per Ibrahim. They held that Ibrahim referred to a closed set of categories that could not be judicially expanded, as per certain other Canadian decisions.

However, it is the majority opinion of Beetz and Pratte JJ that is of considerable interest to us. Analysing the effect of the “interview”, the two judges concluded that there was a similarity between light hypnosis and narco-analysis, in the sense that “emotional controls are less inhibited than they are in a fully conscious state and the subject is assisted to say what he was not able to say voluntarily because of the emotional intensity of it.” The use of the word “voluntary” here is crucial, because it suggests a different understanding of the term, one which goes beyond fear of prejudice or hope of advantage. Immediately afterwards, the two judges went on to develop their theory of “voluntariness”, arguing that the “principle” underlying the Ibrahim rule necessitated its expansion when required:

“… if a mere threat or a mere promise are considered to have such an impact on mind and will as to render involuntary the confession of an accused who is not under induced hypnosis, whose state of conscious­ness has not been altered, who is in full and voluntary control and possession of his faculties and who is therefore quite capable to resist sugges­tion, then Horvath’s statement made under hypno­sis in the circumstances described above was a fortiori involuntary even though the cause of involuntariness was neither hope of advantage nor fear of prejudice.”

In other words, something was “voluntary” only if it was done under full control and possession of one’s faculties. What is the basis for this understanding? The Court held that:

“… through the use of an interrogation technique involving certain physical elements such as an hypnotic quality of voice and manner, a police officer has gained unconsented access to what in a human being is of the utmost privacy, the privacy of his own mind… it is my view that this was a form of violence or intrusion of a moral or mental nature, more subtle than visible violence, but not less efficient in the result than an amytal injection administered by force.”

Here is a new and powerful understanding of the interests protected by the voluntariness requirement. It is not, after all, about accuracy, but about privacy: the right of every person to choose whether or not to reveal what is in their minds, to keep their mental maps hidden from view, or to reveal it to the world, as they wish. Unsurprisingly, then, towards the end of its judgment, the Court expressly abandoned the veracity basis of the voluntariness requirement:

“Apart from the untrustworthiness of confessions extorted by threats or promises, other policy reasons have also been advanced to explain the rejec­tion of confessions improperly obtained. But the basic reason is the accused’s absolute right to remain silent either completely or partially and not to incriminate himself unless he wants to. This is why it is important that the accused understand what is at stake in the procedure. In a voir dire, voluntariness not veracity governs admissibility. Dr. Stephenson’s expert opinion as to the truthful­ness of Horvath’s confessions is accordingly not determinative of the issue of admissibility… I wish to add that the accused’s absolute right to remain silent includes not only the right to censor any information which is on his conscious mind but also the right to control the administration of artificial processes whereby unconsciously held information might emerge into consciousness. In this sense, the accused has the absolute right to censor his unconscious mind as well as his con­scious one.”

Let us return to Kathi Kalu Oghad. We can now see that the volitional requirement in that case could be read in one of two ways. Volition as non-changeability conforms to the narrow definition of “voluntariness” in the common law, based upon the crime-control model, and permissive of (arguably) narco-analysis, brain-mapping and other such intrusive tests that escape unconstitutionality by being neither threatening some prejudice, nor promising some advantage. On the other hand, volition as understood by the Canadian Supreme Court in Horvath, based upon the due-process model, is broader, and focuses on the right of the accused to mental privacy, to choose precisely which part of his mental landscape he or she wishes to reveal to the world. The tension between these two approaches must be kept in mind when, in the next post, we discuss the most recent Supreme Court decision on 20(3), one that was directly about narco-analysis and brain-mapping: the 2010 case of Selvi vs State.

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