This article is written by Tejesh Reddy, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy, from Lawsikho, as part of his coursework. He is a BA LLB student at ICFAI Law School, Hyderabad of Batch 2021.
Let me start this Article with a story.
This is the story of great grandfather’s cousin. A long time ago, my great uncle lived in a village in Tamil Nadu. His wife was known to be a harsh and shrewd woman but they were happily married. One day, his wife found out that he had cheated on her with one of the neighbors. So, one night, his wife took some goons to that woman’s house and killed her. After killing her, they wrecked the house and tried to make it look like a robbery.
The police while investing found out that my great uncle’s wife was near that house during the time of the murder. When the police came to their house, realizing that his wife had murdered that woman, he confessed to the crime. And he was, subsequently, convicted for murder.
Is this confession admissible?
What are the laws relating to confessions and self-incriminating acts? What is the protection against self-incrimination acts? Who can record a confession? Are there any provisions related to false confessions? What has the Court decided on such cases?
This article aims to answer these questions.
What is self-incrimination?
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.
It can also be defined as the act of implicating oneself in a crime or exposing oneself to criminal prosecution, according to the Legal Information Institute, Cornell Law.
Article 20(3) of the Constitution of India deals with self-incrimination.
“No person accused of any offense shall be compelled to be a witness against himself.”
What does being a witness against himself mean? It means that the person accused will give evidence to the Court proving his own guilt in a crime. This Article protects citizens of India from being forced to give evidence against themselves.
Need for law relating to self-incrimination?
The origin of this principle against self-incrimination can be found in the latin maxims “nemo teneturprodereseipsum” which means that no man is bound to betray himself.
In the 16th and 17th century, the English courts of the Star Chamber and the High Commission began to compel suspects to take an oath and to answer questions. These were called “ex-officio oaths”. Dissenters to this practice along with lawyers such as Sir Edward Coke were effectively able to make the Latin maxim of “nemo teneturprodereseipsum” into rule of law which became the privilege against self-incrimination.
English judges began unleashing writs of Habeas Corpus and Prohibition against the High Commission which ended up becoming the first articulation of this principle.
Later on, Article 11.1 of the Universal Declaration of Human Rights, 1948 and Article 14(3)(g) of the International Convention on Civil and Political Rights, 1966 laid down the principles of assumption of innocence and against self-incrimination respectively.
Legislations that have provisions for self-incriminating acts
As stated earlier, Article 20(3) of the Constitution of India gives protection to its citizen against self-incrimination. But are there any other legislation that deals with the same?
Sections 24-30 of the Evidence Act, 1872 deal with confessions given by a person.
Section 24 of the Evidence Act, 1872 states that
“24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.–– A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”
A confession, under this section, will be inadmissible as evidence if it is –
- Made under inducement, threat or promise
- In reference to an offense or charge
- Made by the accused and
- Made the accused think that doing so would give him an advantage or help him avoid evil
Section 25 of the Evidence Act, 1872 states that
“25. Confession to police officer not to be proved. –– No confession made to a police officer shall be proved as against a person accused of any offense.”
Section 26 of the Evidence Act, 1872 states that
“26. Confession by accused while in custody of police not to be proved against him. –– No confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person.”
Section 27 of the Evidence Act, 1872 states that
“27. How much of information received from accused may be proved. –– Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offense, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”
According to this section, any fact may be proved if it was in consequence of information received from the accused. But only if it relates distinctly to the fact discovered
Section 28 of the Evidence Act, 1872 states that
“28. Confession made after removal of impression caused by inducement, threat or promise, relevant. –– If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant.”.
If the confession under section 24 had been made after the removal of such inducement, threat, or promise, then it is admissible as evidence.
Section 29 of the Evidence Act, 1872 states that
“29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.–– If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him.”
According to this section, if the confession made by the accused was under a promise of secrecy or the accused was tricked into confessing, the confession shall be admissible.
Section 30 of the Evidence Act, 1872 states that
“30. Consideration of proved confession affecting person making it and others jointly under trial for the same offence. When more persons than one are being tried jointly for the same offense, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.”
When a person confesses to an offense committed by himself and others and that confession is proved, then the Court will consider that confession as evidence against the others accused as well.
Section 32 of the Prevention of Terrorism Act, 2002 (POTA) states that
“32. Certain confessions made to police officers to be taken into consideration.—
(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer…, shall be admissible in the trial of such person for an offence under this Act or the rules made thereunder.”
Section 15 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA) states that
“15. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872, but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police… shall be admissible in the trial of such person [or co-accused, abettor or conspirator] for an offence under this Act or rules made thereunder:
[Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused].”
These two counter-terrorism legislations have provisions for confessions taken by Police Officers which will be admissible in Court contrary to the provisions of the Evidence Act.
However, both of these Acts have been repealed and the current counterterrorism Act that is in force is the Unlawful Activities (Prevention) Act, 1967 with its latest amendment in 2012.
Even though many of the provision of POTA were inserted into the Unlawful Activities (Prevention) Act in 2004, the Act does not have any provisions on confessions.
Who can commit self-incriminating acts?
According to Article 20(3) of the Constitution and Section 24 of the Evidence Act, it is clear that only the person accused of an offense can commit a self-incriminating act in relation to that offense and hence, needs protection against it.
A confession is a self-incriminating act. But the protection provided by law is only against compulsion to do a self-incriminating act or make a self-incriminating statement.
Who can record self-incriminating acts?
A confession has to be recorded in the manner given under section 164 and 281 of the Code of Criminal Procedure,1973
“164. Recording of confessions and statements.—(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial”
“281. Record of examination of accused.—(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record.”
So, only a Magistrate can record a confession in the course of an investigation. And when the Magistrate is examining the person accused, he shall make a memorandum about the examination. This shall, then, be shown or read to the accused. And will be signed by the person accused and the Magistrate.
The concept of False Confessions is not new. The law acknowledges its existence in the fact that a confession is not considered enough to prove guilt and must be corroborated with other evidence.
But why would someone confess to a crime that they did not commit?
There are many reasons that explain why a person would confess to a crime they did not commit, such as:
- Real or perceived intimidation by the police
- Use of force by police during the interrogation, or perceived threat of force
- Compromised reasoning ability due to exhaustion, stress, hunger, substance use, and, in some cases, mental limitations, or limited education.
- Evil interrogation techniques, such as false evidence about the existence of evidence
- Fear, that failure to confess will yield a harsher punishment
There are different types of false confession:
- Voluntary False Confession – When the innocent accused knowingly confesses to the crime with little to no pressure from the police.
- Complaint False Confession – When the innocent accused knowingly confesses to the crime to put an end to the interrogation or get an anticipated benefit or reward.
- Persuaded False Confession – When the innocent accused knowingly confesses to the crime who states to doubt his own memory and believes that they committed the crime.
In India, the question of false confession is not adequately debate and there is no proper literature on the subject. This is an important concept because all over the world convicts are being exonerated based on DNA evidence. The Innocence Project states that “Astonishingly, more than 1 out of 4 people wronfully convicted but later exonerated by DNA evidence made a false confession or incriminating statement.”
But there do exist judgments on the subject matter. In Mahesh Ram and Ors v. State of Bihar (2007), a single judge bench of the Patna High Court allowed the writ filed by brothers who were convicted for the murder of woman. The Court observed that the confession recorded by the police was false and concocted and that the accused never even confessed.
Let us take a look at the judgments regarding Article 20(3) and confessions in the various High Courts and the Supreme Court.
In M.P. Sharma v. Satish Chandra (1954), an 8 judge bench of the Supreme Court had to deal with the issue of whether search and seizure under section 94 of the CrPC is violative of Article 20(3) of the Constitution. The Court observed that the production of a document under section 139 of the Evidence Act is not being a witness under the meaning of Article 20(3). And that the production of the document would not amount to compelled production.
In State of Bombay v. Kathi Kalu Oghad (1961), an 11 judge bench of the Supreme Court decided on whether giving of signature and fingerprint specimen would to self-incrimination. Both the majority and minority views agreed that a specimen of a fingerprint or a signature cannot be considered as “to be a witness” under Article 20(3). But they came to this conclusion through different reasonings.
In Nandini Sathpathy v. PL Dani (1978), Justice Krishna Iyer held that “compelled testimony” should include psychic torture, environmental coercion, intimidation methods etc. The right against self-incrimination would begin from the time the person is named in the FIR.
In Kartar Singh v. State of Punjab (1994), the Supreme Court considered the validity of section 15 of the TADA Act. The Court held that the section is valid but proposed certain guidelines ensure recording of true and voluntary confessions.
In Selvi v. State of Karnataka (2010), a 3 judge of the Supreme Court dealt with the admissibility of evidence gathered from Narco-Analysis in light Article 20(3). The Court held that a statement of confession must be reliable and voluntary. Narco-Analytic tests such as brain mapping polygraph tests and FMRI were administered forcefully on the accused persons. This compulsory administration of these tests is violative of “right against self-incrimination” under Article 20(3).
The right against self-incrimination is an essential fundamental right that cannot be taken away. Article 20(3) of the Constitution articulates this right. Most nations of the world follow this principle.
Only an accused is given protection under Article 20(3). According to section 164 and 281 of the CrPC, only a Magistrate can record a valid admissible confession. According to section 26 of the Evidence Act, a confession taken by a police officer is inadmissible. But TADA and POTA had provisions where a confession recorded by a police officer would be admissible which have now been repealed and replaced with UAPA.
Through various judgments, the Supreme Court has upheld the right against self-incrimination. In Nandini Sathpathy’s case, it was held that the right begins from the time a person is named in the FIR. In Selvi’s case, it was held compelled narco-analysis test are violative of the right against self-incrimination.
But the literature and precedence on false confessions are still extremely limited in India. We need to create adequate measures to answer the questions raised at the beginning of this article. Whether my great uncle’s confession would be admissible today? Would he still be convicted today? How much has the law advanced over the last century?
How much does the law need to advance to answer these questions?