Protection against self-incrimination under Article 20 (3)

Protection against self-incrimination under Article 20 (3)

Introduction

Self-Incrimination is an act of incriminating oneself to the accusation or charge of crime, especially by giving evidence or testimony. Black’s Law Dictionary define self-incrimination as a declaration or an act that occurs during an investigation where a person or a witness incriminates themselves either explicitly or implicitly. Simply, it is an act of exposing one’s own self to criminal prosecution. Self-incrimination can occur either directly or indirectly. Directly by the means of interrogation or indirectly by disclosing information which leads to self-incrimination, without pressure from any person.

Right against self-incrimination can be traced back to medieval law of Roman church. Latin expression of the same is ‘Nemo tenetur seipsum accusare’ which literally means that “No man is obliged to accuse himself”. The rights evolved, in common law through protests and agitation against the inquisitorial and unfair methods of interrogation of an accused person, in the middle ages in England.

Right against self-incrimination is one of the fundamental cannons of the British system of criminal jurisprudence, adopted by US and then India. In this article we will discuss provision of protection against self-incrimination under Indian Constitution, discuss its components, Right against self-incrimination with cases and particulars.

Components of Article 20(3)

Article 20(3) of Indian Constitution is a vital provision regarding criminal investigation and trial. Article 20(3) of Indian Constitution, which embodies the principle of right to protection against self-incrimination reads as “No person accused of any offence shall be compelled to be a witness against himself under constitution. Under (Forty-Fourth Amendment) Act, 1978, Article 20 of Indian Constitution was granted a non-derogable status, that means that the state under any circumstances, even in a state of emergency cannot refuse to honour this right. This includes right to remain silence or not to speak. By analyzing the provision, it can be said to be consist of 3 components. The three components of the provisions are-

1. It is a right pertaining to a person accused of an accused of an offence.
2. It is a protection against compulsion to be a witness.
3. It is a protection against such compulsion resulting in his giving evidence against himself.

• Person should be accused of an offence

The privilege under article 20(3) is confined only to a person accused of an offence. It is not necessary that to avail the privilege, the actually trial or enquiry should commence before the court or trial. As a result, a person against whom FIR has been filed by the police and an investigation is ordered by magistrate can also claim this protection. The protection under article 20(3) is confined to the accuse only and is in accord with Evidence Act, 1872. A person charged with contempt of court is not an accused of an offence, within the purview of Article 20(3) held by Delhi Judicial Service Association vs state of Gujarat (1991). [1]

In MP Sharma vs Satish Chandra[2], it was held by the court that the protection under Article 20(3) is not only available at trial stage, but also available at pre-trial stage. Simply means during investigation by police if the person concerned in regarded as an accused, it will not take him out of the category of accused. In America right against self-incrimination is not only available to the accused but also to the witnesses but in India it has a narrower scope and only available to the accused.

In Balasaheb vs State of Maharashtra[3], court held that a witness in a police case, who is also an accused in complaint about the same incident, cannot claim absolute immunity from testifying on grounds of Article 20(3). He, may refuse to answer the questions which tend to incriminate him.

In Nandini Satpathy vs Dani (P.L.),[4] an appellant, a former chief minister was summoned to the vigilance police station for the reason of examination for a particular case against her under prevention of corruption Act, 1947. During investing a long list of question was put forth before, her which she refused to answer and claimed protection under Article 20(3).  Supreme Court held that the purpose of Article 20(3) is to protect the accused of Police Harassment and Right to self-incrimination is applicable to every stage where information is furnished and applicable to witness and accused in the same manner.

• Protection against compulsion to be a witness

‘To be Witness’ means making oral or written statements in or out of the court by a person accused of an offence. In other words, it means imparting knowledge in respect of relevant information by an oral or written statement in or out of the court.

The legal position of applying technique as an investigative process raises genuine humanitarian issues like breach of an individual’s rights, liberties and freedom.

In a famous case of State of Bombay vs kathikalu[5], court held it must be proved that the person was compelled to make a self-incriminatory statement. Compulsion refers to duress or force which includes threatening imprisonment of child, wife or parent of a person or beating. So as a result, accused making a confession without any inducement, threat or promise cannot claim protection under Article 20(3).

Court in State (Delhi Administration) vs Jagjit Singh[6], held if an accused granted pardon under section 306 of CrPC, he ceases to be an accused and becomes a witness for the prosecution and his evidence cannot be used against him in other cases. Section 132 of the Indian Evidence Act, protects a witness from being prosecuted on the basis of information provided by him in criminal trial which tends to incriminate him.

• Compulsion must be of giving evidence against himself

An accused can be compelled to submit for writing thumb impression or showing body for the purpose of identification. In Kalawati vs State of Himachal Pradesh[7], the Supreme Court has held that Article 20(3) does not apply to cases when the confession is made by an accused without any coercion, inducement threat or promise. There is an angle of human privacy in criminal justice, which the object of this provision.

In X vs Y case, In Divorce Petition before Delhi High Court on the ground of adultery court approved the paternity test of the preserved foetus as it was no longer part of wife’s body. Reasoning behind this was that right against self-incrimination does not extend to search and seizure of documents, any other object through a search warrant.

In V.S Kuttan Pillai vs Ramakrishnan & Others[8], a court held a general warrant can be issued to acquire documents or things and can be recovered from any person, and the court was not known to fact that the same person was in possession of it.

When the accused is compelled to stand up and show his face for identification which are noticeable and speak for themselves cannot attract Article 20(3).

Narco-Analysis Test vs Self Incrimination

It has been a long matter of debate about weather scientific techniques such as Narco-analysis tests, brain mapping etc. Violate the right against self-incrimination under Article 20(3) of Indian Constitution.

In a case of Selvi vs State of Karnataka[9], Supreme Court held that it is requisite compulsion to force a person to undergo a narco analysis test, brain mapping and polygraph tests. The answers given during these tests are not voluntary and consciously given, so a person undergoing such methods of criminal investigation is unable to decide whether to answer the question or not, as a result it amounts to testimonial compulsion and attracts protection under Article 20(3). Court can give permission of narco analysis test against the will of the person, except in some cases where it is necessary under public interest.

DNA test and Article 20(3)

Courts are reluctant in accepting evidence based on DNA test because it challenges the Right against self-incrimination and Right to Privacy. Right to privacy is intrinsic to Right to life and personal liberty under Article 21 of Indian Constitution. However, in some cases, Supreme Court held the right to life and personal liberty is not absolute and can be subjected to certain restrictions.

In Kharak Singh vs Uttar Pradesh[10], Supreme Court held that right to privacy is not guaranteed under Indian Constitution. Courts allowed DNA tests on certain occasions to be used in an investigation for producing evidence.

In Kanchan Bedi vs Gurpreet Singh Bedi[11], the parentage of an infant was in the question. Mother filed an application for conducting DNA Test was vehemently opposed by the father. Contending that it would violate his rights, court held that this would not violate his rights as there is a question of parentage of a child.

 

[1] 1991 AIR 2176, 1991 SCR (3) 936

[2] 1954 AIR 300, 1954 SCR 1077

[3] 1994 CriLJ 3044

[4] 1978 AIR 1025, 1978 SCR (3) 608

[5] 1961 AIR 1808, 1962 SCR (3) 10

[6] AIR 1989 SC 598, 1989 CriLJ 986, 1989 (1) Crimes 343 SC, JT 1988 (4) SC 715, 1988 (2) SCALE 1578, 1989 Supp (2) SCC 770, 1988 Supp 3 SCR 1093, 1989 (1) UJ 394 SC

[7] 1953 AIR 131, 1953 SCR 546

[8] 1980 AIR 185, 1980 SCR (1) 673

[9] Selvi and Ors. v. State of Karnataka, A.I.R 2010 S.C. 1974.

[10] 1963 AIR 1295, 1964 SCR (1) 332

[11] 2003 IIAD Delhi 252, AIR 2003 Delhi 446, 103 (2003) DLT 165, I (2003) DMC 458, 2003 (67) DRJ 297, 2003 RLR 229

Author: sarthbodhi wankhade,
Symbiosis Law School and 5th Year (BA LLB)