This article is written by Ansruta Debnath, a student currently pursuing the BA LLB degree from National Law University Odisha. This article explores the legal validity of extracting voice samples from an accused in a criminal investigation for identification purposes.
We have all seen law-enforcement agents nailing the accused with voice analysis in crime thrillers. It is widely known that movies and books generally provide a glossed up and glamorous version of reality. The nitty-gritty details involved in using voice analysis to identify the accused largely goes ignored. Here we discuss that with an emphasis on whether it is constitutional or whether it goes against the rights guaranteed to the accused. A further detailed discussion has been done on a landmark judgment on this issue.
Article 20(3) of the Indian Constitution
Article 20 is one of the most important Articles of the Indian Constitution. Keeping in mind the reality of the Indian criminal justice system, the truth is it is extremely harsh to the accused. A very important tenet of our justice system is that every person is innocent until proven guilty. As celebrated English jurist William Blackstone said and observed, “It is better that ten guilty persons escape than that one innocent suffer.”
Thus until an accused is convicted, they deserve to be treated like anyone else and therein lies the significance of Article 20. Article 20 provides certain rights to accused and convicts.
Out of those rights, Article 20(3) encompasses the doctrine of self-incrimination. It prevents any person accused of any crime to be forced to give any kind of information that might aid in the conviction of said accused. In other words, an accused cannot be forced to be a witness against themselves.
Now there has been a lot of debate with regards to what constitutes information that is within the ambit of “witness against themselves”. In M. P. Sharma v. Satish Chandra (1954) the Court held that “to be witness” referred to oral testimony in court as well as providing anything in writing outside court which incriminated the accused. The Court had then observed that “to be a witness” meant to “furnish evidence”.
In the State Of Bombay v. Kathi Kalu Oghad And Others (1961), the Supreme Court while agreeing to M.P.Sharma, stated that “to be witness” did not include calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature, even when all these fell under the ambit of “furnishing evidence”. The court held that while it was necessary to protect the rights of the accused, it was equally necessary to arm the agents of law and law courts with information that might help them apprehend offenders of the law. Overall, it was held that evidence that was material and given in personal capacity while using the mental faculties of the accused were what could be considered within the ambit of the protection given by Article 20(3).
Voice sample and its use in forensics
The 87th report of the Law Commission of India on the Identification of Prisoners Act, 1920 spoke about voice print as a visual recording of a voice. They stated that voices were unique to every individual due to concentrations of energy at certain frequencies. These concentrations called ‘formants’ were what made voices unique.
Voiceprint analysis gained momentum since the Watergate scandal of the early 1970s. Gradually the concept of voiceprint lost importance because it started being associated with fingerprints which had a much higher degree of scientific backing.
Criminal investigations around the world now use voice analysis to zero in on criminals. However, many scholars and forensics scientists have said that the method of analysis is not fool-proof. Moreover, there are a multitude of methods that are available, and it is unclear which the best is. The French Acoustical Society submitted a public request in 1997 to end the use of forensic voice science in courtrooms. The request was made in reaction to the case of Jerome Prieto, a man who was imprisoned for ten months as a result of a contentious police investigation that incorrectly identified Prieto’s voice in a phone call claiming responsibility for a vehicle bombing. Yet voice analysis continues to find intensive application in investigations today.
Legal provisions in India
As of now, no specific legal provision exists with regards to the collection of voice samples for analysis by the courts or the police during an investigation.
Ritesh Sinha v. the State of UP (2019)
Ritesh Sinha v. the State of Uttar Pradesh (2019) is a landmark judgement decided in 2019 with regards to this issue. With former Chief Justice of India, Justice Ranjan Gogoi on the Bench, the Supreme Court of India decided that acquiring voice samples from the accused during the course of a criminal investigation was not unconstitutional. The Court conceded that the statutory aspect of this should be framed by the legislature but declared that in the presence of the legal lacunae, temporary measures had to be taken by the judiciary.
The case was originally filed in the High Court of Allahabad after which it came on appeal in the Supreme Court in 2012. The appeal was heard and ended up in a split verdict, thus requiring reference to a larger bench through a special leave petition.
Facts of the case
In 2009, a First Information Report (FIR) was filed against the appellant, for being an associate in a scam that involved collecting money from people in exchange for providing them with a job in the Police. The investigating agency wanted to confirm whether a phone conversation was between the appellant and his associate, i.e., they wanted to confirm the identity of Ritesh Sinha in the phone call. Accordingly, the Chief Judicial Magistrate directed the accused to appear before the investigating agency to provide said voice sample and based their order on Section 482 of the Criminal Procedure Code, 1973. Section 482 is on the inherent powers of the High Court. This order was challenged by the accused and led to the case being discussed.
In the split verdict judgement of 2012, two pertinent questions were raised-
- Whether Article 20(3) protects an accused from providing voice samples.
- In case there is no violation, whether a Magistrate was authorized to direct the accused to provide said voice sample.
The two-judge Bench, including Justice Desai and Justice Alam, concurred on the first question but differed on the second.
- With regards to the first question, reliance was placed on Section 53 of the Cr.P.C. by Justice Desai. But Justice Alam placed his reliance on amendments Sections 53, 53A and 311A of the Cr.P.C.
- Currently, 53 and 53A allowed medical examination of the accused (53A is for those that are accused of rape) while 113A allowed a Magistrate to direct an accused to provide handwriting and specimen signature samples if need be.
- To add on, the three-judge Bench in the special leave appeal also placed emphasis on the observations made in the State Of Bombay v. Kathi Kalu Oghad and Others and said that since fingerprint, palm print etc. weren’t part of “to be witness”, the same logic could be applied on voiceprints.
- Justice Alam in 2012 held that since there was no provision with regards to the contended power of the Magistrate in this regard, it was most likely that the said omission by the legislature was deliberate.
- The above-mentioned law commission report had suggested that Section 5 of the Identification of Prisoners Act, 1920 could be amended to include voice samples within its ambit. Currently, Section 5 empowers the Magistrate to direct the investigation agency to collect measurements and photographs of an accused.
- The issue discussed thus was to what extent the judiciary’s law-making powers extended. It is pertinent to note that this has been an eternal debate, and the judiciary has had been extremely cautious to ensure they don’t encroach within the purview of the legislature and undermine the age-old principle of separation of powers.
- It was observed that despite express reminders throughout the years, the legislature did not proceed with legislating on the issue. This legislative inaction could be attributed to “justified legislative concern and exercise of care and caution”. But, temporary patchwork had to be done by the judiciary to address cases where this issue was constantly being raised.
- The Court pointed out that in State of Uttar Pradesh v. Ram Babu Misra (1980), the Supreme Court had said that there was a requirement to bring about a statutory provision with regards to handwriting samples along the lines of Section 5 of the Identification of Prisoners Act, 1920. An amendment, accordingly, was brought about by way of the Code of Criminal Procedure (Amendment) Act, 2005 that inserted Section 113A in the Cr.P.C.
- Thus, it could be expected that the legislature would make similar changes after this case has been decided.
- The Court finally held that although lawmaking was not a judicial function, in a situation where the call for justice was too large, expression of an opinion on a silent aspect of the Statute through the principle of ejusdem generis was required. Moreover, the opinion given would be on the principle of imminent necessity and would include a call to the legislature to formulate appropriate laws.
- The Court thus allowed the acquisition of voice samples by a method of judicial interpretation and in the exercise of their jurisdiction of Article 142 which gives the Supreme Court the authority to do complete justice.
- The Court conceded that even though the Magistrate did have the power to acquire voice samples (temporarily with the backing of this judgement until appropriate legislations are drafted) and said acquisition was not unconstitutional, in case the accused refused to give out the sample, use of force would be illegal as there was no legal sanction.
- A fundamental point that was asked was whether taking a voice sample would infringe upon a person’s right to privacy The Court observed that according to the K.S.Puttaswamy case, the fundamental right to privacy was not absolute and was subjected to the greater good.
- Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and Ors. (2005)
Here the Bombay High Court allowed a petition by the CBI to record voice samples of the accused. The court had reasoned that according to Section 73 of the Indian Evidence Act, 1872 or Sections 5 and 6 of the Identification of Prisoners Act, 1920, the Magistrate had the power to direct the acquisition of measurements. The said measurements included finger impressions and footprint impressions. Thus logically by judicial interpretation, it meant that voiceprints could be included under its ambit. This could be done especially since in the State Of Bombay v. Kathi Kalu Oghad And Others, fingerprints etc. did not fall within protection given by Article 20(3).
- Rakesh Bisht v. Central Bureau of Investigation (2007)
Here, the CBI had made an application for the collection of voice samples. The application was allowed by the Trial Court. The Delhi High Court held, however, that although there was no infringement of Article 20(3), the accused cannot be compelled to give voice samples. It said that the Trial Court had no powers to direct the collection of voice samples during investigations and that Section 311A has no application to voice samples and voice recordings.
Thus the Delhi High Court, through its findings disagreed with the Bombay High Court in its judgement of Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and Ors.
However, this order does not remain valid as Supreme Court judgements prevail over High Court ones.
- Mukul Roy v. State of West Bengal (2019)
The court reiterated principles laid in Ritesh Sinha v. the State of UP.
Thus the constitutionality of taking voice samples was established with this landmark judgement. However, there is an utmost need for the legislature to address this issue. Moreover, the use of voice analysis in criminal investigations by law enforcement agencies needs to be regulated to provide uniformity and coherence. Excessive encroachment in the domain of the Right to Privacy in the name of public good also cannot be allowed.
- Judgement of Ritesh Sinha vs State Of Uttar Pradesh on 2 August, 2019
- Forensic Voice and Tape Analysis
- Voice Analysis Should Be Used with Caution in Court
- Can the court force you to give a voice sample? · myLawrd
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