A Critical Study on the Right Against Self Incrimination

AUTHOR'S PROFILE: PRATYUSH SACHAN, 2ND YEAR B.AN LLB STUDENT, AMITY LAW SCHOOL, NOIDA.

“The exercise of the power to extract answers begets a forgetfulness of the just limitations of that power”.

INTRODUCTION

The right against self-incrimination is a crucial safeguard in criminal procedure. The protection of self-incrimination is one of the primary principles of the criminal justice system. Interrogation of the accused is one of the most important parts of criminal investigation, most of the time force is used by investigation agencies to obtain information from the accused. The main purpose of this protection is to stop the use of force and torture during criminal investigations. The protection against self-incrimination is the cardinal law of common law criminal jurisprudence. If the accused person makes a statement against himself, confession by the accused is not admissible unless it is proved that confession is free and voluntary. The right against self-incrimination has its root in the Latin maxim “Nemonteneturseipsumaccusare” which means that “no man is obliged to accuse himself except before god”. Many jurists interpret this maxim in different cases. The single most important principle in criminal law is the right of an accused not to be forced to make any statements that tend to incriminate himself. This right was recognized and discussed in the landmark case of Nandini Satpathy v. P. L. Dani.

RIGHT AGAINST SELF INCRIMINATION IN DIFFERENT COUNTRIES

• US

The right against self-incrimination has been included in our constitution by the 5th amendment. Amendment gives the right to refuse to answer any questions which would tend to expose him to a criminal charge. After being interpreted by many judges and jurists in different cases, the nature and scope of the 5th amendment have been extended. This privilege is applied to the accused in both criminal and civil cases and covers all the orals and documentary evidence. In Malloy v. Hogan,[i]the court held that free and voluntary confession is required without any direct or implied promise while taking confession of the accused. In another important case Miranda v. Arizona[ii], the court held that while taking the accused in custody if the individual is not made aware of his rights, then the self-incriminating statements made by the accused cannot be used in a court of law.

• BRITAIN

The principle of protection against self-incrimination is the fundamental principle of the British criminal system. It is the cardinal principle of common law that any person cannot be compelled to answer any question or provide any documentary evidence that may incriminate himself. This privilege can only be taken by statute or in a necessary situation. In Blunt vs Parklane hotel ltd (1942), the court interpreted the privilege against self-incrimination and held that rule applies to oral evidence, interrogatories, and discovery of documents. However, the English court held that the right against self-incrimination and the right to remain silent is not absolute. In Saunders v. UK (1996), it was held that statutory provisions can remove the privilege against self-incrimination and cannot be protected under this privilege.

• CANADA

The right against self-incrimination is one of the most important features of Canadian criminal law. Right against self-incrimination is defined under section 13 of the Canadian charter of rights and freedoms. This section is the same as the 5th amendment to the US constitution. This right only extends to the accused and does not extend to the witness. This section is interpreted by various jurists and scholars and gradually evolved through different cases. Canadian supreme court in R Vs. Noble held that right to silence is absolute and the silence of an accused cannot be used against him.

• INDIA

The right against self-incrimination is a fundamental right under Article 20(3) of the Indian Constitution. It is one of the most compelling rights under part III of the Indian constitution and is regarded as sacrosanct by the framers of the Indian constitution. Under Indian law, the principle has been given constitutional status but there are various statutory laws like section 161 of the Code of Criminal Procedure,1973 and section 132 of evidence act, 1872 to protect the right. Article 20(3) of the Indian Constitution reads “No person accused of any offense shall be compelled to be a witness against himself.” The feature of this provision is that accused is not guilty until proven and should not make an incriminating statement. The Supreme court in various cases interpreted this article and widen its scope and meaning of this article. The privilege under this clause is only available to the accused. The supreme court in M.P. Sharma v. Satish Chandra[iii], widen the definition of accused and include the person against whom the first information report (FIR) has been lodged as accused and held that privilege under article 20(3) is also available at the pretrial stage i.e., during the police investigation. Even if the name is not mentioned in FIR as an accused the privilege can still be used. In the US, the scope of the privilege against self-incrimination is very wide and it is not only available only to the accused but also to the witness according to Indian laws, the witness does not have the privilege. In NandaniSatpathy vs. PL bani&ors,[iv]the supreme court has extensively considered the parameters of section 161(2) of CrPC and the scope and ambit of Article 20(3) of the constitution. The court held that the expression, “accused of any offense” in article 20(3) must include both witnesses and accused and widen the scope of Article 20(3). The supreme court however added, “we do not mandate but strongly suggest”. In Balasaheb v. State of Maharashtra[v], the court held that a witness in a police case who is also an accused in a complaint case can refuse to make any incriminating statements.

India is a part of the international covenant on the protection of civil and political liberties,1966. Article 14(3)(g) of the convention gives the right against self-incrimination to every person.

THE INTERRELATION BETWEEN:

THE RIGHT TO PRIVACY AND THE RIGHT AGAINST SELF INCRIMINATION

The right to life is a fundamental right under article 21 of the Indian Constitution. Supreme court in K.S. Puttaswamy vs Union of India held that the right to privacy is a part of the right to life under article 21 of the Indian Constitution. The interrelation between the right to privacy and the right against self-incrimination has not been explored much by Indian courts. However, in Selvi v. State of Karnataka,[vi]it was held that forcing a person to a narco-analysis test or polygraph test without his consent violated the right to privacy under article 21, and protection can be sought under article 20(3). It was observed that it is an individual choice to make a statement and it should be free and voluntarily. The court examines the interrelation between article 21 and article 20(3) of the Indian constitution. In M.P. Sharma v. Satish, the court observed that conveying information based upon personal knowledge of the accused amounts to self-incrimination, and issuance of search warrants and seizure of private documents are not included in the right against self-incrimination under Article 20(3) of the Indian constitution. In the State of Bombay v. Kathi Kalu Og, had 11 judges’ bench of the supreme court decided that the right against self-incrimination is only restricted to statements and documents that tend to incriminate the accused and excluded handwriting samples and finger and footprints from the ambit of Article 20(3)? a vital According to section 91 of the code of criminal procedure, courts can issue summons to any individual and ask them to produce any documents or any other thing for investigation. Courts give more importance to eliminating a crime rather than the rights of an individual in the context of the right against self-incrimination and provisions under the code of criminal procedure pose a threat to the right to privacy under article 21 of the Indian constitution. Courts are unwilling to accept DNA tests as evidence because it violates the right to privacy under article 21. However supreme court in many cases held that the right to privacy is not absolute and subject to certain limitations. Courts have allowed DNA tests in certain situations. In Kanchan Bedi v. Gurpreet Singh Bedi’s question arose on the parentage of the infant. Court held that the parentage of an infant is in question and it is necessary to undergo a DNA test, it does not violate a fundamental right. The right to privacy shares a complimenting relation with the right against self-incrimination.

SUPREME COURT JUDGEMENTS ON THE DECEPTION DETECTIVE TEST (DDT)

The deception detective test such as narco-analysis, polygraph, and brain-mapping have important clinical values. The DDTs are useful to know the important concealed information related to the case and help in rapid disposing of cases. The DDTs are widely used by the investigating agencies but cannot be used as evidence in a court of law because this would lead to an increase in the rate of accusation and acquittal. In the landmark judgment, Selvi v. State of Karnataka court held that DDTs cannot be used without consent. The interrogation plays a vital role in the collection of evidence. In another case, Dinesh Dalmia vs State, the madras high court asked the investigating agency to complete the investigation within a reasonable time and asked to use scientific investigation methods to find the truth. In Sh. Shailender Sharma vs State & Another, it was held that the narco-analysis test is a step in aid of investigation. Courts do not permit the use of DDTs and can only be used in necessary situations for the public interest.

CONCLUSION

Law is a living process, which changes according to changes in society, science, and ethic. Courts do not interfere in the development of science unless it violates fundamental rights. The right against self-incrimination guaranteed under article 20(3) of the Indian constitution is based on the maxim " Nemo Tenetur Seipsum Accusare ”. Indian courts have interpreted the article in many different cases. The attempt of the courts should be to expand the scope and meaning of the fundamental rights rather than attenuate their meaning. Judgments restricting the meaning and scope of the article should be reviewed by the supreme court and the article should be given free play in all the spheres of people’s life. The court’s interpretation of this article has been very liberal since the commencement of the constitution. Right against self-incrimination is to protect the accused from torture and force used by investigating agencies to obtain information. According to common law criminal jurisprudence, an accused is not guilty until proven, so the court must protect the interest of the accused. in the era in which documents are electronic and stored on a third-party platform, the present rules and laws to protect against self-incrimination are inadequate to address the complex situations. It is time to re-examine previous judgments of the supreme court and reclaim the potential of the right against self-incrimination.

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ENDNOTES

[i] 378 U.S.1(1964)

[ii] 384 U.S. 436 (1966)

[iii] AIR 1954 SC 300

[iv] AIR 1978 SC 1025

[v] (2011) 1 SCC 364.

[vi] (2010) 7 scc 263