This article is written by Nishtha Garhwal, from Alliance School of Law, Bangalore. The article attempts to study the right of self-incrimination available to an accused and how the application of forensic science in criminal investigations is considered a violation of this right.
The right to self-incrimination is given under Article 20 (3) of the Constitution of India which provides that an accused shall not be compelled to be a witness against himself. Thus, it is like an immunity that is available to the accused. This right is based on a legal maxim ‘Nemo tenetur podre accussare seipsum’ which means that no person is obliged to incriminate himself.
It is important to note that this right is available only in criminal cases and not in civil cases, unlike the American Constitution where this right is available in both civil and criminal cases. However, in cases where any document or some object is searched for or has to be seized from the possession of the accused, this right to self-incrimination cannot prohibit it. Thus, this right does not prevent taking a thumb impression or signature from the accused.
Law and science have been associated for a long time. If we go back to history, Imhotep who was the boss doctor of Egypt’s king in the 27th Century, B.C laid down certain guidelines and laws for clinical practices. If we look at India, Charaka Samhita was composed in the 7th Century which talked about the obligations and societal position of a doctor.
In today’s time, science is flourishing and many new innovations in the field of science are emerging. The application of forensic science is quite useful in conducting criminal investigations. It is the field where law and science meet and it plays a crucial role while deciding some cases. Forensic science speeds up and assists the process of providing justice to a person. However, it is often argued that the use of forensic tests in criminal investigation violates Article 20(3) of the Indian Constitution.
How does the right to self-incrimination work?
The act of self-incrimination is the one where the person who is accused of any offense incriminates himself either explicitly or implicitly. The person who is accused of a crime is presumed to be innocent until he is proved otherwise. The burden of proof is on the prosecution side of a case. It is in fact the duty of the prosecution to prove the guilt of the accused. The accused cannot be made to give any statement or respond to any inquiry using threat or any force that might later be used as evidence against him.
The purview of Article 20(3) of the Indian Constitution also includes the right to remain silent. This right also immunes the accused to be a witness against himself. The accused gets the protection that threat or any kind of force cannot be used on the accused for the purpose of obtaining any statement from him. In V.S Kuttan Pillai v. Ramakrishnan and Another (1980), it was held by the Court that in order to search for any document or to obtain something from the possession of the accused, a warrant can be issued.
The accused can decide to waive off his right to self-incrimination and if he makes any statement willfully and without any compulsion, the same can be used as evidence against him in the court of law.
Application of forensic science in criminal investigations
In India, the cases take a lot of time, and thus, this results in the delay to provide justice to a person. With the advancement of science, certain improvements are made in the criminal justice system with the introduction of forensic science. Thus, forensic science includes methods from the different fields of science, for example, biology, chemistry, medication to expedite the process of a criminal investigation.
At the crime location, an examining officer collects all the evidence available on the spot which later on goes to the forensic labs for testing and investigation purposes. The reports obtained from these forensic science tests can serve as evidence in a court of law. In Rojo George v. Deputy Superintendent of Police (2006), it was pointed out by the Court that the conventional methods of investigation are not very useful in the present era where crimes are committed using very sophisticated ways and thus, there is a need to allow tests like narco-analysis.
The legal provisions related to the application of forensic science in a criminal investigation
The right to self-incrimination provided under Article 20(3) of the Indian Constitution is available only to a person against whom an FIR has been lodged. There are certain components that need to be fulfilled for the right under Article 20(3) to be effective. It is crucial that the person who is accused of an offense is forced to respond to any inquiry or give any statement against himself or in other words be forced to be a witness against himself. If the statement obtained under compulsion from an accused ends up being evidence against him, the right under Article 20(3) can be invoked.
If any statement that is obtained under force or threat from the accused is presented before the court of law as evidence, it can be rejected by the court. In the Kalawati v. State of H.P (1953), it was held by the Supreme Court of India that if an accused makes any statement voluntarily and without the use of threat or force, then Article 20(3) cannot be applied in that case. The protection under Article 20(3) can only be granted in criminal proceedings and not in civil proceedings and the same was also held in the case of Vidya Verma v. Shri Narain (1956).
Section 53 of the Criminal Procedure Code, 1973 provides that if an accused is arrested and there are reasonable grounds to believe that the medical examination of that person may serve as evidence in the court of law, then it is lawful for a registered medical practitioner to make an examination of the arrested person at the request of a police officer who shall not be below the rank of sub-inspector.
Section 161(2) of the Criminal Procedure Code,1973 provides that an accused shall answer all the questions which are asked by an examining officer truthfully and honestly. However, this section also exempts the accused from answering any question put forth to him that might act as evidence against him which might subject him to punishment.
Thus, Section 161(2) of Criminal Procedure Code, 1973 along with Article 20(3) of the Indian Constitution provides a right to the accused to remain silent and thus, makes it non-obligatory for the accused to respond to the inquiries that might later be used to incriminate him. In the State of Bombay v. Kathi Kalu Oghad and others (1961), it was held by the Apex Court that any voluntarily self incriminatory statement made by an accused during the time of questioning by a police officer does not amount to compulsion and hence would not attract Article 20(3) of Indian Constitution.
Controversies related to the use of forensic science in the investigation process
The application of forensic science in the investigation of criminal cases is now possible due to the advancement in the field of science. They serve as crucial evidence in criminal proceedings. However, courts are often reluctant to accept such evidence.
The courts have observed that the reports obtained from forensic tests may not be that reliable. For instance, a DNA test may be ineffective as it gets sullied. Sometimes there is a delay in sending such evidence for forensic tests which might lead to the decay of the evidence and thus, make the reports obtained from such tests less authentic. Therefore, such situations make it very difficult for the courts to be dependent on such types of evidence.
There are many debates relating to the application of forensic science tests in criminal investigations and their legitimacy. The Indian justice system has depended on forensic science yet the courts can decide to reject such evidence as they are not limited by the reports obtained from forensic tests.
The legitimacy of DNA Tests
The application of DNA tests has been observed in around 5% of homicide cases and around 3% of assault cases. While DNA tests can serve as strong evidence in the court of law, yet the courts are resistant in accepting evidence based on DNA tests. The DNA test challenges the right to privacy which is inherent under the right to life and personal liberty enshrined under Article 21 of the Constitution of India.
Many have claimed that forcing to undergo a DNA test violates the right under Article 20(3) of the Indian Constitution as it constitutes an accused giving evidence against himself. However, in some cases, the Court also held that the right under Article 21 of the Indian Constitution is not absolute and includes certain restrictions.
In the case of Kanchan Bedi v. Gurpreet Singh Bedi (2003), it was held that if a person is directed to give a sample for a DNA test, then it does not amount to a violation of the fundamental right to privacy. In Geeta Saha v. NCT of Delhi (1999), a DNA test was directed by the division bench in an assault case.
Legitimacy of the narco-analysis tests
The use of narco-analysis tests has been a matter of great debate as the responses that are given during these tests are not given willfully. The individual does not get a chance to decide whether he wants to respond to the inquiry or not. Narco-analysis is used in order to interpret the behavior of an accused or suspect. The person subjected to a narco-analysis test goes into a hypnotic stage in the influence of drugs and in such a stage, he is more likely to divulge information.
In the case of the State of Andhra Pradesh v. Smt. Inapuri Padma (2008), the Court held that Article 20(3) is violated only if the narco-analysis is done on the accused and therefore can be conducted on a suspect. Thus, the narco-analysis of some suspects was sanctioned in this case by the Court. In Ramachandra Ram Reddy v. State of Maharashtra (2004), it was held by the Court that the narco-analysis test does not violate the fundamental right under Article 20(3) of the Indian constitution.
In the case of Selvi v. State of Karnataka (2010), the reliance and dependency by the High Court on the narco examination and related tests for criminal incrimination was dismissed by the Supreme Court of India. In this case, the court extended the purview of Article 20(3) of the Indian Constitution to include not just the accused but also suspects. Thus, this right was extended to every individual and no one can be made to undergo a narco-analysis test without their consent. It was held that such evidence is not admissible in the Court of law.
In Santokben Sarman Bhai Jadeja v. The State of Gujarat (2008), the Court held that it was justified to make use of narco-analysis tests in the investigation process as a last resort when all the humanly possible ways to find evidence have been exhausted. It was held that the conduction of narco-analysis test on the accused is not violative of Article 20(3), however, if the self incriminatory information obtained from the accused under such a test is used against him, then it violates the right under Article 20(3) of the Indian Constitution.
Right to self-incrimination under Article 20(3) is available to an accused and a person may choose not to respond to inquiries that may serve as evidence against him in the court of law. Forensic tests like the narco-analysis test, polygraph test and DNA test pose a challenge to the fundamental right of privacy under Article 21 of the Indian Constitution. It becomes the duty of the officials to make the accused aware of his rights.
However, forensic science tests have been used in criminal investigations, and reports obtained from them have been used in criminal proceedings. Still, the courts tend to be more inclined towards the old and non-forensic techniques of criminal investigations. Forensic tests like the narco-analysis tests are advised to be used as a last resort when the investigation seems directionless and in cases involving larger public interest like the cases of terrorism.
In my opinion, there is a need for the field of forensic science to develop further in India. India lacks highly skilled examining officers involved in forensic science and thus, forensic science as a subject needs to be taught in universities and colleges. This may lead to the development in the field of forensic science in India.
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