“An accused, until proven guilty is innocent” is the common phrasein criminal law. It means law presumes the accused as innocent even if he is guilty of the offense but has not been proved yet in a court of law. There have been various cases of media trail where media takes presumption of guilt on part of the accused before the actual trail in court, which leads to chaos in society and we see the accused as the culprit at the first place so, here we as an audience also make presumption as media plays a very crucial role in molding the mindset of public at large, media trails helps police in further investigation. What if the accused is confessing his/her crime or guilt voluntarily? In this article, we will be dealing with two questions as mentioned above. We will see if confessing before police can be deemed as an evidence before thecourt of law, then we will also analyze various case laws to understand the concept.
Meaning of self-incrimination–
According to Black’s Law Dictionary, a declaration or an act that occurs during an investigation where a person or witness incriminates them either explicitly or implicitly is known as self-incrimination. In simpler words, it is the act of implicating or exposing one’s self to criminal prosecution[i].Self-incrimination includes exposing oneself or any other person of guilty in crime by making a written or oral statement. Self-incrimination can be voluntarily or involuntarily, voluntarily in the sense, accused himself, volunteers, to confess the guilt, and involuntarily in the sensethat accused confessed his guilty under police harassment and scrutiny or coercion, fear, orthreat by some authority.
Prohibition against self-incrimination-
In India, protection has been given to the accused and witnesses against self – incrimination by the Constitution of India under Article 20(2) which states that the accused has the right to remain silent over any question which tends to incriminate himself. It further mentions three components which are as follow-
It is a right to remain silent in the matter of self-confession, it also gives protection against compulsion to be a witness and it also provides protection against such compulsionwhich results into giving evidence against himself in any form whether by making written or oral statement.On the contrary, if any accused confesses his guilt voluntarily, then in that case, he will not have any such protection. Protection against self-incrimination is based upon the common principle of ‘Nemo teneturseipsumaccusare’ which means that ‘No man is obliged to accuse himself’[ii].
The debate over the validity of narco- analysis test vs. protection granted under Article 20(3)-
Justice is the fundamental aim of any case.To ensure justice, police also doesan investigation after filing of FIR, but any confession, whether voluntarily or involuntarily, given in the police station is not admissible in the court of law, but if the same confession has been made before the magistrate that will be treated as evidence before the court of law, according to section 27, 28, 29 of IndianEvidence act. Police use scientific techniques such as mind mapping, Narco analysis tests,and polygraph tests to ensure speedy and efficient investigation. The question has been raised over the years on the admissibility of these tests over the ground of ‘right to privacy’. Court has taken a broader view in this regard and has held that uses of the above-mentioned test cannot be taken for granted and are subject to the public interest. Further to illustrate,the Supreme Court in some cases also held that the Right to Life and Personal Liberty is not absolute and can be subjected to certain restrictions.
- MPSharma v. Satish Chandra (Jagannadhadas, 1954),
In this case the court held that the immunity against self-incrimination can be accessed by the accused at both stages i.e. trial and pre-trial. The court remarked that a person whose name is mentioned in FIR as an accused can claim protection under Article 20(3) of the Indian constitution.
- Balasaheb v. State of Maharashtra,
In this case, it was held that an accused who is also a witness in the same police case cannot claim absolute immunity from testifying however he can refuse to answer questions which are self-incriminatory.
The exception to article 20(3), where the accused cannot take protection against self-incriminationare-
- State of Bombay v. Kathi Kalu oghad[iii]
In this particular case the Supreme Court held that writing specimen, signature, or thumb impression does not fall into the category of ‘to be a witness’, so the accused or any other person cannot refuse to give these things
- Yusufali v. state of Maharashtra[iv]
A tape-recorded statement made by the accused through made without knowledge of the accused but force or oppression was held to be admissible in evidence; it means it does not attract the protection of Article 20(3) as being a witness against himself
- State v. M. Krishna Mohan[v]
In this particular case, the Supreme Court ruled that the taking of specimen fingerprint and handwriting from the accused is not prohibited under article 20(3)and accused can not take the defense of witness against himself.
We have seen above that protection against self-incrimination has been given to the accused with the presumption of no guilt under article 20(3) of the Indian constitution. The provision which provides immunity to the accused, aims at zero level police harassment for sake of evidence. No one can be forced to incriminate himself; the author feels that the narco analysis test is volatile of article 20(3); hence it is against the fundamental right of privacy. The author remarks that by referring above cases, we can say that even immunity against self-incrimination is not absolute; It is subject to certain restrictions as we have seen in the case of State of Bombay v. Kathi Kalu Oghad that giving specimen thumb impression does not fall within the ambit of Article 20(3) of Indian constitution as taking thumb impression becomes essential step for further investigation and also giving thumb impression does not require anyone ‘to be a witness’. But the author feels there should be harmony between the “right to silence” and “right to obtain evidence”, however, the ‘extraction of information’ without ‘compulsion’ is the fundamental practice of criminal advocacy.
[i]Saumya Saxena, Right against Self-incrimination in India , IPleaders (September, 30,2020, 11:11 AM)
[ii]Pankaj Kumar Pandey, ‘Protection against Self-incrimination’ as a Fundamental Right in India: A Critical Appraisal, SSRN (September, 30, 2020, 11:15 AM)
[iii] AIR 1961 SC 1808.
[iv]1968 AIR 147, 1967 SCR (3) 720.
[v]S Sinha, State Through Spe &cbi , Ap vs M. KRISHNA MOHAN &Anr on 12 October; 2007 (September,30 ,2020, 11:20 AM)