India is a democratic country. A democratic state is where the rights of its people are of paramount importance. Democratic states must respect the fundamental rights of its citizen’s. Such rights include that of fair trial, and presumption of innocence among others, which are important for the protection of individual liberties and to ensure justice. The right against self-incrimination prevents the state from forcing its people to give evidence against them. This right ensures that personal or state biases, and preconceived notions regarding the character of the accused person are not deviating from the trial process that ensures fairness. This right also ensures that the state or judiciary is not influencing the accused person or the trial itself by the abuse of its power.
Right against self-incrimination asserts that the state’s power is not unfettered. This right has been the cornerstone of legal protection in various jurisdictions. It is found in the Fifth Amendment of the United States Constitution, prominently incorporated in British laws, and under Article 20(3) of the Constitution of India. It is rooted in the legal maxim “nemo tenetur prodere accussare seipsum” which means no one is bound to incriminate himself or herself.
Nowadays, crime is also being committed by using technology or scientific methods. Such crimes are not easily solved with traditional investigation. So, various techniques like narco-analysis, polygraph tests, DNA tests, and other forensic methods have become common usage. But these tests have found violating the right against self-incrimination because these methods require the suspect to give information through technological modes which he/she may not have otherwise consciously divulged. Such confessions, however true, are not voluntary. So, it is necessary to seek a balance between investigation techniques and fundamental rights guaranteed by the Constitution. This article delves deep into the meaning, scope and need of the right against self-incrimination. Further, it discusses its significance in today’s world of information technology, artificial intelligence, etc.
Meaning of Self Incrimination
According to the definition of Black’s Law Dictionary, “self-incrimination” is “that act either verbal or written, or including gestures, which suggests their own guilt.” If during an interrogation someone says anything that shows that he has done wrong, then such a statement is said to be self-incriminatory.
If we see the etymology of the word “incrimination”, it is derived from the Latin word “incriminare” which means “to accuse”. Root of “incriminare” is “crimen” which means accusation. Hence, it means accusing someone of a crime. Self-incrimination means accusing oneself of a crime.
The doctrine is based on the Latin legal maxim : Nemo teneteur prodre accussare seipsum. It means no one is bound to accuse themselves. “Nemo” means no one, “tenetur” means to hold,”prodere” means to reveal, “accusare” means to accuse or put on charge, “seipsum” means oneself. Law enforcement agencies cannot force the suspect to say or provide any evidence against himself.
This principle is a necessary corollary of the principle that the burden of proof vests with the prosecution. Even if an accused says anything self-incriminatory, then that statement or admission will not be taken as evidence before the court. Law enforcement agency has to conduct the investigation and the matter after collection of evidence shall be put forth for the trial before the Hon’ble Court.
Self-Incrimination in Ancient India
In “Manusmriti”, “Dharmashastra”, “Arthashastra” we have procedures regarding the prosecution and punishment of the wrong doers. These texts did not mention right against self-incrimination but relies on witness testimony and the circumstances of the accused.
Self-Incrimination in Modern India
In Saunders vs. United Kingdom (1997), Judge Walsh of the European Court of Human Rights in his concurring opinion threw light on the importance of the right against self-incrimination and its origin. He said that self-incrimination is a privilege which is rooted in common law and later found its place in the Constitution of the United States in the Fifth Amendment. Its seed can be found in the thirteenth century, when the ecclesiastical courts started administering “oath ex officio” to heretics (non-conformists in religious matters). Ex-officio oath was introduced as a substitution of “trial by ordeal”.
This was found quite revolutionary and humanistic but later it was misused by the investigators. It became the tool to extract confessions even from the innocents. This became coercive. After a few centuries, it was adopted against political dissenters. But still, it was a tool of coercion.
After much public hue and cry for a common law, a doctrine emerged where it was opined that a man had a privilege to refuse to testify against himself. The principle was that “a man could not be made the deluded instrument of his own conviction.” The right against self-incrimination has been borrowed from the Constitution of the United States of America as a fundamental right under Part III of Constitution of India, 1950.
Right against Self Incrimination under Constitution of India
Under the Indian Constitution, clause 3 of Article 20, guarantees the fundamental right against confessions which put the accused in peril of becoming a witness against himself. This right ensures that the statements or confessions have not been taken with coercive force or enticement. The application of this clause is important to ensure fairness in legal proceedings. Investigations are done to support and assist trial, not to evade trial by receiving evidence and confessions from the accused person. Following are the ingredients of Article 20(3) of the Constitution:
1. Person accused of an offence
The protection of the Article 20(3) is available only to the accused; an accused is any person against whom a complaint has been registered or he is charged of committing an offence. The phrase “accused of an offence” signifies that this protection is available only to the trial, not civil proceedings. It applies only to compulsion, not statements given by free will. Compulsion can be physical or mental.
2. Compulsion to be a witness
The fundamental right secured under the Article 20(3) is a protective sheath against testimonial compulsion during trial stage and investigation stage to be a witness against themselves. ‘Offence’ is defined under Section 3 (38) of the General Clauses Act, 1897. It says that it is any act or omission punishable under the law time being in force. Law in its natural sense can be provisions of the Bhartiya Nyaya Sanhita 2023, any local law or special law which defines any offence within its ambit and this is what is meant by the word ‘offence’ used in Article 20(3) by virtue of Article 367 of the Constitution of India which makes the General Clauses Act applicable for interpreting words and phrases etc. not defined or explained in the Constitution.
The word “witness”, in its natural sense, is a person who furnishes evidence, be it oral, written, any exhibit or an intelligible gesture. Thumb impressions or signatures can be forcibly asked during the trial to prove the veracity of the document so produced before the Supreme Court. In Jaspal Singh vs. State of Punjab (1979), the Supreme Court observed that the science of identifying thumb impressions is absolute, leaving no room of any doubt or confusion. Here, the court has emphasised the credibility, correctness and efficiency of this forensic test. This test establishes the identity of the person whose thumb impression has been taken, like in this case the thumb impression of some other woman was taken to prove that these impressions are of the persecution witness.
InMd. Ajmal Md. Amir Kasab@Abu Majahid vs. State of Maharashtra (2012), the Supreme Court held that right against self-incrimination under Article 20(3) also includes within its import any voluntary statements made in the exercise of free will and volition.
3. Compulsion resulting in giving evidence against himself
In Tofan Singh vs. State of Tamil Nadu (2020), Hon’ble Supreme Court after discussing other precedents, summed up that self incrimination is the tendency of the accused person to expose himself to a charge. The court explained the balance of “relevance” with “confession”. It is not only regarding the relevance of the question; it is about the consequence of the question when answered. If such a question leads to self-incrimination then even if the question is relevant, it cannot be put to the accused person. Hence, the balance between the relevancy of the question to the self-incriminating character of the answer is crucial in interrogation.
The Fifth Amendment created a number of rights for both civil and criminal litigation. The Fifth Amendment guarantees the right to a grand jury, due process of law, protest against self-incrimination, and double jeopardy. The fifth amendment of the United States Constitution provides that- ‘No person shall be compelled in any criminal case, to be a witness against himself’.
Since right against self-incrimination is a privilege; a privilege is that subject-matter under the law of evidence which cannot be inquired in any way. If the accused was directly involved in the crime, is that piece of information that is not subject to disclosure or discovery. It cannot be questioned in any testimony. The privileges are important but they somehow harm public policy principles.
This privilege only protects individuals, not persons in general. Any entity which takes its birth by the operations of law, company, firm, limited liability company or limited liability partnership, cannot take advantage of this privilege except the sole proprietorship. Any corporate body’s previous records can be called by the hon’ble court. This privilege protects only the statements regarding admission of being a participant or a partner (abettor, conspirator) in a crime. It is not extended to physical evidence like blood-sample, finger-prints, tyre marks, DNA samples or any other bodily specimen. Any evidence in document form like personal diary, and tax-returns are also not covered under this privilege.
GDPR and Right Against Self-Incrimination
Under the General Data Protection Regulation (GDPR), the right against self-incrimination is not explicitly provided. But since it is a privacy law, we can co-relate some of its provisions to the right against self-incrimination. In the digital world, GDPR provides for the data safety of users. So, the concept of privacy holds beneath itself this right. There are some layers attached to it. Further, right against self-incrimination is of criminal origin over privacy. One of such is Article 17 of the GDPR, which is popularly known as “right to erasure” or “right to be forgotten. Next is Article 21, the right to object.
Famous Laws and Cases on Right Against Self-Incrimination in India and Abroad
India
The State of Bombay vs. Kathi Kalu Oghad and others (1961)
Facts
Popat Ramji was murdered on the night of October 31, 1954 in Halaria village in Bombay. Locals of the village incriminated Champaraj and Kathi kalu for this murder. A chit was discovered from the crime scene and Kathi Kalu during the investigation was asked to write the content of the chit. That time he was not advised by a lawyer and he wrote the chit. This handwriting specimen was incriminating and both Champraj and Kathi kalu were jointly prosecuted. Both were convicted of murder and sentenced to life imprisonment. Oghad’s lawyer opined that the right of silence of Oghad was violated by the police and taken advantage of.
Issue
Whether the accused was compelled to produce these writing samples during the investigation?
Whether the Court’s request to provide a specimen writing and signature for the purposes of Section 73 of the Indian Evidence Act, 1872, violates the basic right of the accused under the Article 20(3) of the Constitution?
Judgment
Hon’ble Supreme Court concurred with the judgment of M.P Chandra vs. Satish Chandra, and said that right against testimonial compulsion is not restricted to oral evidence in the witness box. Further, the court went on to say that “to be a witness” is “to supply evidence”. It includes not only statements of the accused either written or oral but also the objects or evidence by the other methods.
Merely being in police custody doesn’t amount to compulsion, there should be some additional circumstances to support it.
Giving of handwriting samples, palm impression, thumb impression is giving evidence and “to be a witness” includes furnishing evidence. Like in case of house burglary, producing a house map is not an incriminating piece. Hon’ble Court noticed that the Article 20(3) does not mean that the accused shall not be compelled to be a witness. However, he shall not be compelled to be a witness against himself.
The evidence of specimen handwriting or the impressions of the accused’s fingers, thumb, palm or foot, will incriminate him, only if in comparison of these with certain other handwritings or certain other impressions. identity between the two sets is established. By themselves, these impressions or the handwriting samples do not incriminate the accused person.
That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself, So, when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, he is only compelled to be a witness in general but not compelled to be a witness against himself.
Selvi and ors. vs. State of Karnataka (2010)
Facts
Petitioner challenged the administration of certain scientific techniques, namely narco analysis, polygraph examination, and the Brain Electrical Activation Profile (BEAP) without the consent of the accused or suspect for the purpose of improving investigation efforts in criminal matters.
Issue
I Whether the involuntary administration of the challenged techniques violates the `right against self-incrimination’ given in Article 20(3) of the Constitution?
I-A. Whether the investigative use of these techniques creates a likelihood of incrimination for the subject?
I-B. Whether the results derived from such techniques amount to `testimonial compulsion’ thereby attracting the bar of Article 20(3)?
Judgement
Hon’ble Court examined the origin and use of these techniques as follows:
Polygraph Examination
The start of polygraph examination is the efforts of Cesare Lombroso, a criminologist who experimented with a machine that measured blood pressure and pulse to assess the honesty of persons suspected of criminal conduct. His device was called a “hydrosphygmograph”. Also a similar device was used by psychologist William Marston during World War I in espionage cases. In 1921, John Larson used the measurement of respiration rate and by 1939 Leonard Keeler also included skin conductance and an amplifier to the parameters examined by a polygraph machine.
The science behind polygraph tests is that when a person is lying in response to a question, he/she will produce physiological responses that are different from those that arise in the normal course. During the polygraph examination, several instruments are attached to the person for measuring and recording the physiological responses. The examiner then reads these results, analyses them and moves ahead to gauge the credibility of the subject’s answers.
Control-Question (CQ) Technique
The control-question (CQ) technique is among the most widely used techniques. The test consists of control questions and relevant questions. The control questions are not relevant to the facts being investigated. But they are intended to provoke distinct physiological responses. These responses are compared with the responses triggered by the relevant questions.
Theoretically, a truthful person will show greater physiological responses to the control questions which he has reluctantly answered falsely, than to the relevant questions, which the person can easily answer truthfully. Conversely, a deceptive person will show greater physiological responses while giving false answers to relevant questions in comparison to the responses triggered by false answers to control questions. In other words, a guilty person is more likely to be concerned with lying about the relevant facts as opposed to lying about other facts in general. An innocent person will have no trouble in truthfully answering the relevant questions but will have trouble in giving false answers to control questions. The scoring of the tests is done by assigning a numerical value, positive or negative, to each response given by the person. The net conclusion may indicate truth, deception or uncertainty.
Narco-Analysis Technique
This test involves the intravenous administration of a drug that causes the subject to enter a hypnotic trance and become less inhibited. The hypnotic stage induced by drugs is useful for investigators, since it makes the subject more likely to divulge information. The drug used for this test is “sodium pentothal”, higher quantities of which are routinely used for inducing general anaesthesia in surgical procedures. Earlier versions of the narco analysis technique utilised substances such as scopolamine and sodium amytal.
The investigator’s team includes a forensic psychologist, an anaesthesiologist, a psychiatrist, a general physician or other medical staff and a language interpreter, if needed. Additionally, a videographer is required to create video-recordings of the test for subsequent scrutiny. While a psychiatrist and general physician perform the preliminary function of gauging whether the person is mentally and physically fit to undergo the test, the anaesthesiologist supervises the intravenous administration of the drug. It is the forensic psychologist who conducts the questioning. Since the tests are meant to aid investigation efforts, the forensic psychologist needs to closely cooperate with the investigators to frame appropriate questions.
Brain Electrical Activation Profile (BEAP) Test
`Brain Electrical Activation Profile test’, is also known as the `P300 Waves test’. It is a process of detecting whether an individual is familiar with certain information by measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring ‘event-related potentials’ (ERP). An ERP measurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activities that occur when a person is given a stimulus in the form of an image or a concept expressed in words. The measurement of the cognitive brain activity allows the examiner to determine whether the subject recognized stimuli to which he was exposed.
Functional Magnetic Resonance Imaging (FMRI)
Functional Magnetic Resonance Imaging (FMRI) involves the use of MRI scans for measuring blood flow between different parts of the brain which bears a correlation to the person’s truthfulness or deception.
Hon’ble Court opined that `the right against self-incrimination’ is now viewed as an essential safeguard in criminal procedure. The Court opined that the compulsory administration of the impugned techniques violates the `right against self- incrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence.
Finally, the Supreme Court held that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. Anything recovered after these voluntary tests are admissible in the court.
USA
The Fifth Amendment to the US Constitution created a number of rights, for both civil and criminal litigation. The Fifth Amendment guarantees the right to a grand jury, due process of law, protest against self-incrimination, and double jeopardy.
The fifth amendment of the United States Constitution provides that- ‘No person shall be compelled in any criminal case, to be a witness against himself’.
Since right against self-incrimination is a privilege; a privilege is that subject-matter under the law of evidence which cannot be inquired in any way. If the accused was directly involved in the crime, that piece of information that is not subject to disclosure or discovery. It cannot be questioned in any testimony.
In McCarthy vs. Arndstein (1924), Hon’ble US Supreme Court addressed the privilege of self-incrimination in a bankruptcy matter. The Court held that the privilege of self-incrimination applies to civil matters like bankruptcy proceedings. In such proceedings, there is a risk of criminal prosecution. Hence, a bankrupt cannot be compelled to give their testimony that can be used against them in further criminal proceedings.
In Irvine vs. California (1954) Black and Douglus JJ. opined that the Fifth Amendment prevents the use of physical torture, threats of fine, psychological pressure, governmental pressure to force a person to testify against himself.
In Rochin vs. California (1952), Rochin was charged with the offence of possession of morphine. Police officials tried to make morphine come out of his mouth but this attempt was not successful so he was taken to a hospital where the doctor pushed a stomach pumping machine against his will. Then, the morphine came out through the vomit. This was held as use of force and condemned by the Hon’ble Supreme Court.
In Breithaupt vs. Abram (1957) U.S. The Supreme Court held that a blood sample was taken from the accused while he was lying unconscious after the automobile collision. Hon’ble Supreme Court observed that this case was different from Rochin’s case as there is no force involved and taking out the sample of blood. A blood sample was only an article, not evidence. In Rochin’s case the Morphine was extracted forcefully which was self-incriminating evidence.
In Miranda vs. Arizona (1966), Supreme Court of Arizona held that during interrogation of the accused by the police after arrest any statement taken by the accused which exposes himself to the charge or make him admit to his guilt cannot be admitted in the court, it should be suppressed. However, if the accused was informed of his Miranda warnings but still he chooses to waive them then the incriminating statement becomes admissible. Following are the warnings that the police should inform to the suspect at the time of his arrest:
- That he has the right to stay silent during the course of interrogation
- That he has the right to consult the attorney and he can keep his attorney by him during interrogation
- If he doesn’t have sufficient means to engage an attorney (indigent) then right to get an attorney
The waiver of Miranda Rights should be voluntarily, knowingly, and intelligently.
Canada
Constitution Act, 1982
The Constitution Act, 1982, in Part I, which deals with the Canadian charter of rights and freedoms says in Section 11(c) that any person charged with an offence has the right to not get compelled to be a witness in respect of that offence.
Under Section 13, a witness has a right to not adduce any self-incriminating evidence during criminal proceedings, except in perjury matters or when he has given earlier contradictory evidence. Right against self-incrimination is guaranteed under Canadian law.
Canada Evidence Act, 1982
In Canada Evidence Act, 1982, Section 5 talks about incriminating questions. Section 5(1) says that the witness shall not be excused from answering any question on the ground that answering this question can criminate ( to charge with a crime) himself, or may tend to establish his liability in civil proceedings.
The provinces have the authority to make laws about education, property, civil rights, the administration of justice, hospitals, municipalities, and other local or private matters within the provinces. Section 5(2) says that although the witness by reason of the law of evidence of Canada or the provincial Act is compelled to answer the incriminating question, but the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place.
Except the following two situations:
1) A prosecution for perjury in the giving of that evidence, or
2) A contradictory evidence
In R. vs. Henry (2005), the Supreme Court of Canada in paragraph 2, highlighted the right against self-incrimination. Learned bench dissented from the argument that “the search for the truth is limited by Section 13 of the Canadian Charter of Rights and Freedoms”.
They said that the purpose of Section 13 is to protect individuals from directly incriminating themselves during the indictment process. However, this right is not available to the accused who voluntarily testified at his retrial on the same indictment. The voluntary decision signifies the absence of compulsion. Absence of compulsion does not trigger the protection of the right against self-incrimination.
In Section 5 there is a “quid pro quo” basis. When the accused or witness chooses to answer any question which has incriminating character, he is rest assured that if the case in question is not of giving false evidence, or he has not given any contradictory evidence, his answer will not be used against him for further trial. In exchange for witness testimony, there is an assured protection against the use of that testimony as evidence against himself in subsequent proceedings.
Conclusion
Right against self-incrimination is a powerful reminder of human rights and personal liberty. If this right is waived then any innocent can also be put on stake. It upholds the fairness in legal proceedings thereby eliminating the chance of undue influence, coercion or anything that puts unfair pressure mentally as well as physically. Its waiver can lead to violation of civil liberties. Law enforcement agencies can abuse their powers by forcing the people to produce evidence against themselves. It can derogate the fairness principle of “everyone is deemed innocent unless the guilt is established”. This guilt is established after a long period of investigation, interrogation and trial. Right against self-incrimination is important to lower the number of wrongful convictions.
Modern investigative methods including narco-analysis, polygraph tests, and brain mapping tests pose challenges before the maintenance of the fundamental rights of the accused. These methods save time, and energy for law enforcement agencies but their overuse should be avoided by resorting to the help of clinical psychologists, forensic experts, criminologists, and criminal psychologists. These tests should be administered when the accused is a habitual offender or incorrigible criminal.
