August 28, 2011

Constitutionality of scientific tests in India; self-incrimination

Below is an extract from Ashish Goel's analysis of the constitutionality of scientific tests; which can be accessed on SSRN here.

Section 161 of the Code of Criminal Procedure (CrPC) is titled “Examination of witnesses by police”[1] and clause (2) provides that any person “supposed to be acquainted with the facts and circumstances of the case” shall be bound to “answer truly all questions put to him” other than questions which would “expose him to a criminal charge”[2]. On the other hand, art.20(3) of the Indian Constitution provides that “no person accused of an offence shall be compelled to be a witness against himself”. The rule therefore, is to “answer truly all questions” with only one exception: the questions put should not have a tendency to “self – incriminate”. 

In contrast, under s.27 of the Indian Evidence Act (IEA)[3], if any information revealed by an “accused” in police custody whether as a “confession”[4] or otherwise, subsequently leads to the discovery of a relevant fact or facts in issue, the fact so discovered will be admissible as evidence in the court. It is imperative to examine the meaning of “accused” in the present context. Does “accused” in art.20(3) and s.27 of the IEA restrictively mean persons facing “formal accusation” or extend also to potential candidates who are likely to get “exposed” to a criminal accusation? This was answered in Romesh Chandra Mehta v State of West Bengal[5], where the court observed:

“Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence”[6].
This observation was cited with approval in Balkishan A Devidayal v State of Maharashtra[7]:
“[O]nly a person against whom a formal accusation of the commission of an offence has been made can be a person “accused of an offence” within the meaning of art.20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court”[8].
It emerges from the above that the protection under art.20(3) cannot be extended to “suspects” and “witnesses” not facing any “formal accusation”. In other words, the expression “accused of any offence” in art.20(3) must mean formally accused in praesenti and not in future[9]. It follows that “suspects” and “witnesses” who are not otherwise “accused” do not have a fundamental right against “self – incrimination” guaranteed in art.20(3). The right guaranteed is a statutory right flowing from s.161(2) of the CrPC which is broader in ambit and includes not only the “accused” but also persons who are likely to “expose” themselves to a criminal accusation. In other words, persons claiming under s.161(2) of the CrPC need not be “formally accused” at the time of making “self – incriminating” statements but can also be “potential” candidates for “criminal accusation”[10]. This view is also endorsed by noted Judge Krishna Iyer:

“Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge….A ‘criminal charge’ covers any criminal charge then under investigation or trial or which imminently threatens the accused”[11].
Not surprisingly, Judge Balakrishnan himself concedes to this argument in Selvi:

“Section 161(2) of the CrPC casts a wider net to protect the formally accused persons as well as suspects and witnesses during the investigative stage…”[12]
In this sense, s.27 of the IEA will also have no application qua “suspects” and “witnesses” who although may or may not “expose” themselves to a “criminal charge”, are certainly not “formally accused” at the time of making any statement in police custody. Having said that, what is the relationship between s.27 of the IEA and art.20(3): could a person “accused of an offence” who is “supposed to be acquainted with the facts and circumstances of the case” be otherwise protected from the vices of s.27 of the IEA? In other words, is art.20(3) a provision in itself, or does it impliedly take into consideration limitations of s.27 of the IEA such that an “accused” making any statement in a police custody whether as a “confession” or otherwise, could be admissible to the extent that it can be proved by the subsequent discovery of facts? 

To this question, Judge Balakrishnan responded thus: s.161(2) of the CrPC and art.20(3) share the common purpose which is to prevent “forcible conveyance of personal knowledge that is relevant to the facts in issue”[13]. “Reading conjunctively” s.27 of the IEA and art.20(3) the Judge added: “we have already explained…that if the fact of compulsion is proved, the test results will not be admissible as evidence”[14]. The Judge has “already explained” this conceptual distinction by reproducing an earlier precedent where it was observed thus:

“If the self – incriminatory information has been given by an accused person without any threat that will be admissible in evidence and that will not be hit by the provisions of cl. (3) of Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of s.27 of the IEA are not within the prohibition aforesaid, unless compulsion has been used in obtaining information”[15].
Does this imply that s.27 of the IEA will have no force with respect to “self – incriminatory” information obtained as a result of “involuntary” tests conducted on “accused” persons against the mandate of art.20(3)? The answer is in the affirmative. But what about a situation when an “accused” is compelled to reveal information which in his personal knowledge although not “self – incriminatory” has a tendency to expose “any other person” to a criminal charge? In this light, let us revisit s.161(2) of the CrPC which has similar legal implications. Can a person seek protection under this section against “forceful” questions put to him which tend to incriminate “any other person” who in his personal knowledge is willfully evading criminal accusation in that case? 

These are confusing issues for which Judge Balakrishnan has no “elaboration”. In his attempt to “gather some insights about the admissibility of scientific evidence”[16], the Judge overlooked an important commonality shared by art.20(3) and 161(2) of the CrPC: protection ensured is against “involuntary” “self – incrimination” and not “involuntary” incrimination of “any other person”. In other words, the right guaranteed is only against forceful “self – incrimination” and not forceful “incrimination” per se. The use of words “witness against himself” and “expose him [self] to a criminal charge” occurring in art.20(3) and s.161(2) of the CrPC respectively, signify that the protection guaranteed is only against making a statement which is “self – incriminatory” and not a statement which incriminates “any other person”[17]

This is because s.161(2) read with s.161(1)[18] of the CrPC casts an obligation on a person “acquainted with the facts of the case” to “answer truly all questions relating to such case put to him”. Another important provision, s.179 of the Indian Penal Code (IPC) may be mentioned here. This section criminalizes refusal to answer questions “demanded” by a public servant and provides for punishment which may extend to six months[19]. The use of word “demanded” as opposed to “requested” suggests that a public servant can even go the extent of “compelling” a person to state relevant information that is known to him. In other words, while s.179 “should not be unsheated too promiscuously and teasingly to tense law people into, vague consternation and covert compulsion”; it is otherwise “perfectly within the constitutional limits of art.20(3)[20]

Section 179 of the IPC when read with art.20(3) and s.161(2) of the CrPC gives only one conclusion: a public servant can “compel” any person to state information relevant to a particular case in order to “expose” all persons of criminal worthiness save only his accomplice, if any. And if such information is revealed in police custody by an “accused”, s.27 of the IEA will be attracted. It follows that “compulsion” is justified to extract information, in or outside police custody, which incriminates “any other person” not being the subject himself or his accomplice. In this sense, Judge Balakrishnan failed to observe that “compulsion” in the form of “involuntary” administration of tests to be a witness in a criminal case is not always against art.20(3) and s.161(2) of the CrPC. “Involuntary” administration of such tests can be lawful if administered to extract information from persons who are “supposed to be acquainted with the facts and circumstances” of the case but are not “exposing” themselves or their accomplices, if any, to a “criminal charge” by such revelation.

So what do we carry forward from here? Two propositions can be posited: firstly, any person “acquainted” with the facts of a case can be “compelled” to be a witness in that case. But such “compulsion” shall not be to “expose” him or his accomplices to a criminal charge, whether directly or indirectly. In other words, any person can be “compelled” to be a witness against “any other person” save his accomplice, if any. Secondly, any person other than a person facing “formal accusation” does not have a fundamental right against “self – incrimination” but only a statutory right against “involuntary” “self – incrimination” flowing from s.161(2) of the CrPC. That the right originates from a statute, it has to be read in conformity with the underlying scheme of the enactment with the help of statutes in pari materia.

[1] The text in full reads: “Any police officer making an investigation…may examine orally any person supposed to be acquainted with the fact and circumstances of the case”.
[2] The text in full reads: “Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture”.
[3] The text in full reads: “Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence 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”. (“emphasis in the original”)
[4] Confession is nowhere defined in the IEA but includes “statements made by an accused confessing his guilt”. See Pakala Narayana Swami v Emperor AIR 1939 PC 47 (“confession is a statement made by an accused which must either admit in terms the offence or at any rate substantially all the facts which constitute the offence”).
[5] [1969] 2 SCR 461
[6] ibid. at 472
[7] (1980) 4 SCC 600
[8] ibid. at 623
[9] Nandini Satpathy v P. L. Dani (1978) 2 SCC 424; Raja Narayanlal Bansilal v Maneck Phiroz Mistry AIR 1961 SC 29
[10] See generally Nandini Satpathy v P. L. Dani (1978) 2 SCC 424; State of Bombay v Kathi Kalu Oghad [1962] 3 SCR 10
[11] n.3 above at 435
[12] n.1 above at para.110
[13] ibid. at para.221
[14] ibid. at para.207
[15] State of Bombay v Kathi Kalu Oghad [1962] 3 SCR 10 at para.32
[16] n.1 above at para.7
[17]  n.21 above
[18] Section 161(1) – “Any police officer making an investigation…may examine orally any person supposed to be acquainted with the facts and circumstances of the case”.
[19] The text in full reads: “Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both”. (“emphasis in the original”)
[20] Tapati Sengupta v Enforcement Officer, Enforcement Directorate (FERA) 1998 (60) ECC 48