This article is written by Saumya Saxena, a BBA LLB student at Symbiosis Law School, Noida of Batch 2022. This article gives an insight into the right against self-incrimination available under Article 20(3) of the Constitution and the admissibility of narco-analysis test and DNA test.
According to Black’s Law Dictionary, a declaration or an act that occurs during an investigation where a person or witness incriminates themselves either explicitly or implicitly is known as self-incrimination. In simpler words, it is the act of implicating or exposing one’s own self to criminal prosecution.
Right against Self-incrimination in India
The Indian Constitution provides immunity to an accused against self-incrimination under Article 20(3) – ‘No person accused of an offence shall be compelled to be a witness against himself’. It is based on the legal maxim “nemo teneteur prodre accussare seipsum”, which means “No man is obliged to be a witness against himself.”
The Supreme Court widened the scope of this immunity by interpreting the word ‘witness’ to include oral as well as documentary evidence so that no person can be compelled to be a witness to support a prosecution against himself. This prohibition cannot be applied in cases where an object or document is searched or seized from the possession of the accused. For the same reason, the clause does not bar the medical examination of the accused or the obtaining of thumb-impression or specimen signature from him. This immunity is available only against criminal proceedings. The Supreme Court has made it clear that in order to claim this immunity from being compelled to make a self-incriminating statement, it is necessary that a formal accusation must have been made against the person at the time of interrogation. He cannot claim the immunity at some general inquiry or investigation on the ground that his statement may at some later stage lead to an accusation. The compulsory administration of the narco-analysis technique amounts to ‘testimonial compulsion’ and thereby triggers the protection of Article 20(3) of the Constitution.
Right against Self-incrimination in other countries
The fifth amendment of the U.S. Constitution provides that- ‘No person shall be compelled in any criminal case, to be a witness against himself’
After being judicially interpreted in many cases, the above privilege has been given a wide connotation. This privilege against self-incrimination can be applied to witnesses as well as parties in both civil or criminal proceedings. It covers oral and documentary evidence and extends to all disclosures including answers which by themselves support a criminal conviction or furnish a link in the chain of evidence needed for a conviction.
Under Common Law, it is a basic principle that a person accused of any offence shall not be compelled to discover documents or objects which incriminate himself. No witness, whether party or stranger is, except in a few cases, compellable to answer any question or to produce any document the tendency of which is to expose the witness (or the spouse of the witness), to any criminal charge, penalty or forfeiture. The purpose of this privilege is to encourage people to come forward with evidence in courts of justice, protecting them, as far as possible, from injury, or needless annoyance, in consequence of doing so.
Ingredients of Article 20(3)
1. The person accused of an offence
This privilege is only available to a person accused of an offence i.e. “person against whom a formal accusation relating to the commission of an offence has been levelled, which may result in prosecution”. In India, a formal accusation can be made by lodging of an F.I.R. or a formal complaint against a person accusing him of committing a crime, it is not necessary that the trial or enquiry should have commenced before a court. Article 20(3) operates only on the making of such formal accusation. It is imperative to note that, “a person cannot claim the protection if at the time he made the statement, he was not an accused but becomes an accused thereafter.” Article 20 (3) does not apply to departmental inquiries into allegations against a government servant since there is no accusation of any offence.
In M.P. Sharma v. Satish Chandra, it was held that a person whose name is mentioned in the first information report as an accused can claim protection under Article 20(3). The privilege against self-incrimination is available at both trial and pre-trial stage i.e. when the police investigation is going on and the person is regarded as an accused, or even if his name is not mentioned in the FIR as an accused.
In Nandini Satpathy v. P.L. Dani, the appellant, a former Chief Minister was called to the Vigilance Police Station for the purpose of examination for a case filed against her under the Prevention of Corruption Act, 1947. During the investigation, she was served with a long list of questions in writing which she denied to answer and claimed protection under Article 20(3). The Supreme Court held that the objective of Article 20(3) is to protect the accused from unnecessary police harassment and the right against self-incrimination is available to witness and the accused in the same manner, and it is applicable at every stage where information is furnished. The privilege under Article 20(3) is applied at the stage of police investigation when the information is extracted.
This right to silence is not limited to the case for which the person is being examined but further extends to other matters pending against him, which may have the potential of incriminating him in other matters. It was also held that the protection could be used by a suspect as well.
In the case of Balasaheb v. State of Maharashtra, it was held that a witness in a police case, who is also an accused in the complaint case for the same incident, cannot claim absolute immunity from testifying in the case. However, he may refuse to answer those questions which tend to incriminate him.
2. Compulsion to be a witness
The application of the narco-analysis test as a technique for investigation raises the issue of encroachment of human rights. In State of Bombay v. Kathi Kalu Oghad, the court held that it must be shown that the person was compelled to make a statement which was likely to incriminate him. Compulsion is duress: it should be a physical objective act and not a state of mind like beating, threatening, imprisonment of wife, parent or child of a person. Art.20(3) does not apply if a person makes a confession without any inducement or threat.
In the case of State (Delhi Administration) v. Jagjit Singh, the court held that if an accused has been granted pardon under section 306 of the Criminal Procedure Code, 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 the information given by him in a criminal proceeding which tends to incriminate him.
3. Compulsion resulting in giving evidence against himself
An accused can be compelled to submit to investigation by giving thumb impressions or specimen for writings or exposing body for the purpose of identification. In Kathi Kalu’s case, it was held that it must be necessarily shown that the witness was compelled to make a statement likely to incriminate him. Compulsion is an essential ingredient but if a person makes a confession without any inducement, threat or promise Article 20(3) does not apply. The accused may waive his right against self-incrimination by voluntarily making an oral statement or producing documentary evidence, incriminatory in nature.
In Amrit Singh v. State of Punjab, the accused had charges of rape and murder of an eight year old girl. When the body of the deceased was discovered, some strands of hair were found in the closed fist of the child. The Police wanted to analyse the hair of the accused, but the accused refused to give the sample. The court found the accused to be protected against self-incrimination, so he had the right to refuse to give hair sample. But if the right against self-incrimination is considered in such a broad manner, then it might lead to misuse of this right by the accused.
In an interesting case of X v. Y, the divorce proceedings on the ground of adultery were going on in the Delhi High Court. The Court allowed the paternity test of the preserved foetus as it was no longer a part of the wife’s body. She was not subjected to compulsion as the right against self-incrimination does not extend to search and seizure of documents and any other object under a search warrant.
Narco-analysis Test vis-à-vis Self-Incrimination
The admissibility of scientific techniques such as narco-analysis tests, brain mapping test, etc for improving the investigation has been a matter of debate about whether these tests violate the right against self-incrimination under Article 20(3). In Gobind Singh v. State of Madhya Pradesh, the Court held that the mental state of an individual comes under the ambit of ‘Right to Privacy’. Later, developments in this area observed that the authority of the State to compel an individual to expose the parts of his life which he wishes to keep to himself is ultra vires the Constitution as it is in contravention of the rights guaranteed under Article 20(3) and 21.
This issue was brought before the Supreme Court in the case of Selvi v. State of Karnataka, the apex court rejected High Court’s reliance on the utility, reliability and validity of narco analysis test and other such tests as methods of criminal investigation. The Court found that it is a requisite compulsion to force an individual to undergo narco-analysis test, polygraph tests and brain-mapping. The answers given during these tests are not consciously and voluntarily given, so the individual is unable to decide whether or not to answer a question, hence it amounts to testimonial compulsion and attracts protection under Article 20(3). The Court stated that narco-analysis test is a cruel and inhuman treatment which violated the right to privacy of an individual. That courts cannot permit administration of narco-analysis test against the will of the individual except in cases where it is necessary under public interest.
DNA Test and Article 20(3)
The courts are reluctant in accepting evidence based on DNA Test because it challenges the Right to privacy and the Right against self-incrimination of an individual. Right to privacy is a right inherent in Right to Life and Personal Liberty under Article 21. However, in some cases, the Supreme Court held that the Right to Life and Personal Liberty is not absolute and can be subject to certain restriction. In Kharak Singh v. State of Uttar Pradesh, the apex court held that Right to Privacy is not guaranteed under the Constitution. The courts have allowed DNA tests on certain occasions to be used in an investigation for producing evidence.
In the case of Kanchan Bedi v. Gurpreet Singh Bedi, the question arose on the parentage of the infant, and the mother filed an application for conducting DNA test, to which the father opposed arguing that his rights would be violated. The Court held that where the parentage of a child is in question, directing a person to undergo a DNA Test does not amount to a violation of fundamental rights. The Court relied on the judgment given in Geeta Saha v. NCT of Delhi, where the Division Bench ordered a DNA Test to be conducted on the foetus of the rape victim.
Article 20 (3) provides protection against self-incrimination and gives the accused the right to remain silent over any matter which tends to incriminate him. This article extends to the persons who are compelled to be a witness and also covers searches and seizures wherein, an accused or the person being searched is under no obligation to be a part of the search. If any statement is made on some finding then it will not be protected under Article 20(3). The law says that an accused cannot be tortured or forced to make a confession and no duress can be exercised on him to obtain information out of him. In such cases, the privilege under Article 20(3) would be attracted. Scientific methods like Narco-analysis tests, polygraph analysis, etc which disrupt the Right to Privacy are considered to be violative of Article 20(3), and can only be conducted in extraordinary circumstances. However, with the advancement in medical sciences, the reliability of these tests has increased and in my opinion, these tests can prove to be effective tools for furnishing evidence for the speedy disposal of the cases.