LAW OF EVIDENCE

TOPIC: “RIGHT AGAINST SELF-INCRIMINATION”

RESEARCH PAPER SUBMITTED

TO THE SVKM’S NMIMS, NAVI MUMBAI
KIRIT P. MEHTA SCHOOL OF LAW
FOR THE LL. B DEGREE

SUBMITTED BY
MAYANK TIWARI
ROLL NO:A044
SAP ID: 81022019050
YEAR: 2021 – 22
B.B.A LL. B 3RD YEAR, SEMESTER VI
SUBJECT: LAW OF EVIDENCE

UNDER THE GUIDANCE OF

PROF. NEHA RATHORE

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INDEX

SR NO. CONTENTS

1. ACKNOWLEDGEMENT

2. DECLARATION

3. ABSTRACT

4. KEYWORDS

5. INTRODUCTION

6. PILLARS OF ARTICLE 20(3)

7. RULES AND CASE LAWS

8. CONCLUSION

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ACKNOWLEDGMENT
I am thankful to NMIMS School of Law for giving me an opportunity to pursue the
project for Law of Evidence.

I would also thank my guide and perpetual source of inspiration Prof. Neha Rathore for
her valuable mentoring and inputs. Her constant support and invaluable advice have
always guided me in the right decision. She helped me to know various phenomena
related to the research practices which further gave an impetus to channelize my study in
an appropriate way. I sincerely thank her for the treasured guidance without which the
dissertation would have never been possible.

Lastly, I express my deep sense of gratitude to the almighty, my family, friends &
colleagues who have directly and indirectly helped me in this discussion.

Mayank Tiwari

(81022019050)

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DECLARATION

I hereby declare that the dissertation titled as “RIGHTS AGAINST SELF-

INCRIMINATION” submitted for “LAW” OF EVIDENCE at NMIMS, School of Law,
Navi Mumbai; is my original work and the dissertation is not formed the basis for the
award of my degree, associateship, fellowship or any other. The material borrowed from
similar titles, other sources and incorporated in the dissertation has been duly
acknowledged.

I understand that I could be held responsible and accountable for plagiarism, if any,
detected later on.

The research papers published based on the research conducted out of the course of the
study are also based on the study and not borrowed from other sources.

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 ABSTRACT:
- The main provision regarding crime investigation and trial in the Indian Constitution
is Art. 20(3). It deals with the privilege against self-incrimination. The privilege
against `self-incrimination is a fundamental canon of Common law criminal
jurisprudence. Art. 20(3) which embody this privilege read, "No person accused of
any offence shall be compelled to be a witness against himself". No one is bound to
criminate himself. Hence although an accused person may of his own accord make a
voluntary statement as to the charge against himself, a justice, before receiving such
statement from him is required to caution him that he is not obliged to say anything
and that what he does say may be given in evidence against himself. hence also arises
the rule that evidence of a confession by the accused is not admissible unless it is
proved that such confession was free and voluntary. The Supreme Court widened the
scope of this immunity by interpreting the word ‘witness’ to include oral as well as
documentary evidence so that no person can be compelled to be a witness to support a
prosecution against himself. This prohibition cannot be applied in cases where an
object or document is searched or seized from the possession of the accused. For the
same reason, the clause does not bar the medical examination of the accused or the
obtaining of thumb-impression or specimen signature from him. This immunity is
available only against criminal proceedings. The Supreme Court has made it clear
that in order to claim this immunity from being compelled to make a self-
incriminating statement, it is necessary that a formal accusation must have been made
against the person at the time of interrogation.

 KEYWORDS:
- Self-incrimination, Protection, Accused, Fundamental Right, Penal Jurisprudence,
Criminal Proceedings, Right, Supreme court.

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 INTRODUCTION:

- The right against self-incrimination finds its earliest embodiment in the medieval law of
the Roman church in the Latin maxim ‘Nemon tenetur seipsum accusare’ which means
that ‘No man is obliged to accuse himself’. The right gradually evolved in common law
through protests against the inquisitorial and manifestly unjust methods of interrogation
of accused persons, back in the middles ages in England.1

- The Indian Constitution provides for protection to an accused against self-incrimination

under compulsion through Article 20(3) – ‘No person accused of an offence shall be
compelled to be a witness against himself. In 1978, under the 44th Amendment, 2 the
Article 20 of the Constitution of India was granted a non-derogable status i.e. the state
has no legal basis, even in a state of emergency, to refuse to honour this right. This is a
testimony to the importance it has been accorded in our Constitution.

- From the very first years of our Constitution, a certain ambiguity on the question of what
evidence was accorded protection, and apparent conflicts between Article 20(3) and
provisions of the Indian Evidence Act, 1872 have prevailed.3

- This resulted in judgments with apparent imbalance between the right against self-
incrimination in Article 20(3) and the necessity to facilitate collection of evidence by
investigating trial agencies. Then came the landmark judgment on the subject matter in
the case of State of Bombay v. Kathi Kalu Oghad 4, in which a murder accused was
identified by the Trial Court and convicted based upon handwriting samples taken at
three different times, under police custody. The convict appealed to the High Court which
held that the evidence of specimen handwriting was tantamount to compulsion, as it was
obtained under police custody, thereby making the evidence inadmissible. Holding that
the identity of the respondent was not established beyond a reasonable doubt under other

1
180th Report of the Law Commission of India, Article 20(3) the Constitution of India and the Right to Silence, 3,
(2002).
2
Sec. 40, The Constitution (Forty-fourth Amendment) Act, 1978.
3
State of Uttar Pradesh v. Deomen Upadhyaya, AIR 1960 SC 1125.
4
AIR 1961 SC 1808.

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available evidence, the accused was acquitted. A review petition was filed in the Apex
Court in which two issues contended were that of the admissibility of handwriting
specimens as evidence in the light of Article 20(3) and whether compulsion was imputed
in the taking of such specimens in police custody. The Apex Court held that handwriting
exemplars, fingerprints, thumbprints, palm prints, footprints or signatures were
considered to be outside the scope of Article 20(3). It was also held that the giving of a
statement by an accused in police custody gave the Court no reason to believe that
coercion had been used in the procurement of the same.

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 THE PILLARS OF ARTICLE 20(3):

- Ethics and reliability are the two pillars of the right against self-incrimination. The ethical
rationale for voluntariness addresses the need to protect the accused from brutalization
and torture by investigation agencies; the rationale is that if involuntary statements were
readily given weightage during trial, the investigators would have a strong incentive to
compel such statements, often through methods involving coercion, threats, inducement
or deception.5 Even if such involuntary statements are proved to be true, the law should
not incentivise the use of interrogation tactics that violate the dignity and bodily integrity
of the person being examined.6 This situation is considered as a violation of basic human
rights of life and limb. Hence, the right against self-incrimination serves as a vital
safeguard against torture and other ‘third-degree methods’ that could be used to elicit
information. It serves as a check on police behaviour during the course of investigation.
The exclusion of compelled testimony is important or investigators will be more inclined
to extract information through such compulsion routinely rather than through the more
difficult path of collecting independent evidence.7

- Another concern behind the right against self- incrimination seems to be protecting a
wholly or partially innocent person from making a false statement under stress and
thereby needlessly reinforcing the needle of suspicion upon him or her. Similarly for the
guilty, the protection affords a shield from aggravating his or her offense by
misrepresentation or concealment of evidence. The accused is also shielded from reading
of motives into what evidence he or she might give.

- There were several contrary views among the makers of the Constitution, but it was
widely accepted by those who devoted serious thought to it, that the easy path of
procuring evidence, oral or documentary, by compulsion from an accused would do more
harm than good to the administration of justice; it was felt that existence of this path
would tend to discourage investigators or prosecution to indulge in a diligent search for
5
Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The Right to remain silent, 94(8) MICHIGAN
LAW REVIEW 2625, 2627 (1995).
6
Smt. Selvi v. State of Karnataka, 2010 (7) SCC 263.
7
Smt. Selvi v. State of Karnataka, 2010 (7) SCC 263.

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reliable independent evidence and also dissuade them to exercise care while sifting
through available evidence for the ascertainment of truth. 8 If law permitted evidence to be
obtained by coercion, investigators would never take up the onus of partaking in
laborious investigation and prolonged examination of other associated persons, material
and documents. It has been rightly said that the absence of the privilege against self-
incrimination would incentivize those in charge of the enforcement of the law ‘to sit
comfortable in the shade rubbing red pepper into the devil’s eye rather than go about in
the sun hunting up evidence.’9

- The privilege also serves the goal of reliability.10 When a person suspected or accused of
a crime is compelled to testify on his/ her own behalf through methods involving
coercion, threats or inducements during the investigative stage, there is a higher
likelihood of such testimony being false or distorted out of sheer despair, anxiety and
fear.11 Their mental status may serve as an impetus to offer evidence in order to avoid the
unpleasantness of the current situation and complications that follow. Thus, involuntary
statements from the accused may amount to false testimony which is likely to mislead the
judge and the prosecutor, thereby impeding and vitiating the process of trial, and
potentially leading to a miscarriage of justice with erroneous and unjust convictions.
Even during the investigative stage, false statements are likely to cause delays and
obstructions in the investigative efforts. Therefore, the privilege ensures that investigation
agencies do not take the easy path of ‘involuntary confessions’ to supplant the diligent
route of meaningful investigations and that the reliability of the testimony presented for
trial is of a high order.

8
Oghad, AIR 1961 SC 1808.
9
James F. Stephen, HISTORY OF CRIMINAL LAW, Vol. 1, 442, (1883) as cited in Oghad, AIR 1961 SC 1808.
10
Michigan v. Tucker, 417 US 433 (1974) as cited in Akhil Reed Amar and Renee B Lettow, Fifth Amendment First
Principles: the Self-Incrimination Clause, 93(5) MICHIGAN LAW REVIEW 857, 895 (1995).
11
Stephen J. Schulhofer, Some Kind Words for the Privilege against Self-Incrimination, 26(1) VALPARAISO
UNIVERSITY LAW REVIEW 311, 318 (1991).

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 RULES AND CASE LAW:

- Oghad: Redefining the Scope of Evidence Protected- The case of State of Bombay v.
12
Kathi Kalu Oghad , brought clarity and reduced anomalies in its subsequent
administration, and, at the same time, how it may also have narrowed the scope of Article
20(3) vis-à-vis the general intention of the makers of the constitution rendering it
incapable in meeting the perceived legislative intention. Oghad was an extremely
noteworthy judgment as it helped resolve conflicts among judgments with its
interpretation. The court could now direct an accused to produce or give his handwriting
exemplar, under Section 73,13 without invoking Article 20(3).14 Several subsequent cases
were facilitated by the case law thus established by Oghad which helped resolve apparent
conflict among different statutes and interpretations. A case in point is Smt. Selvi v. State
of Karnataka15 which involved the use of advanced scientific methods for collection of
evidence for criminal investigations. It heavily drew upon Oghad, adding another new
dimension to its interpretation. In Selvi, the constitutionality of narco-analysis, liedetector
test and analysis of brain waves (Brain Electrical Activated Profiling (BEAP) test) was
questioned. The three judge bench ruled that the compulsory administration of such tests
should be banned as forcible intrusion into the mind of the accused not only violated
Article 20(3) but also intruded on the privacy and liberty of an individual, thus violating
Article 21 of the Indian Constitution.16 Oghad seems to have foreseen such a situation
when Justice Sinha stated that if the mind of the subject had been conditioned such that a
confession was involuntary, it would be considered coercion, and hence in violation of
17
Article 20(3). At the same time it is perceived by the author that Oghad, in its
reinterpretation, may not have sufficiently addressed all situations thrown up by
technology driven social change. While Oghad rightly disallowed protection to material
evidence which in itself did not incriminate the accused in itself such as fingerprints,
handwriting samples etc., it actively excluded a large space of evidence, much of what

12
AIR 1961 SC 1808.
13
Section 73, Indian Evidence Act, 1872.
14
State of Delhi v. Pali Ram, AIR 1979 SC 14.
15
Selvi, 2010 7 SCC 263.
16
Selvi, 2010 7 SCC 263.
17
Oghad, AIR 1961 SC 1808.

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could potentially be self-incriminatory and could have been considered to be worthy of

protection under the original spirit of Article 20(3). This is perceived by the author as its
principle vulnerability especially in view of the changing nature of self-incriminatory
evidence in the face of technological advancement. Another vulnerable area is the ruling
that a statement by an accused would not be considered as having been extracted under
compulsion just for the fact that it was made under police custody, unless additional
circumstances suggested to the contrary.18

- Vulnerability in Acceptance of Evidence in Police Custody: Unlike in M.P. Sharma,

the instant case has laid the law that there is no presumption that custodial statements
have been extracted through compulsion. It says that: 19 “The mere asking by a police
officer investigating a crime against a certain individual to do a certain thing is not
compulsion within the meaning of Article 20(3). Hence, the mere fact that the accused
person, when he made the statement in question was in police custody would not, by
itself, be the foundation for an inference of law that the accused was compelled to make
the statement.” A provision was, however, made for the accused person to show that
while in police custody he was subjected to treatment that would lend itself to the
inference of compulsion. This provision is seen as not entirely mindful of the socio-
political realities prevailing in India where the police and other investigating agencies
have no independence from the executive. There is apparently no safeguard from a police
state, and with the onus of proving compulsion on the accused person, Oghad may have
taken a step back from the established case law till then. It is also seen to fly in the face
of the historical and ethical rationale behind the right against self-incrimination which
was to safeguard a citizen against the state's might. A comparison with the law in the
United States of America on the subject is relevant.

- After Miranda v. Arizona20, a safeguard was introduced in the US, creating a blanket
prohibition on the admissibility of confessions without a knowing and voluntary waiver
of the right against self-incrimination. A compulsory administration of a warning about a

18
Oghad, AIR 1961 SC 1808.
19
Oghad, AIR 1961 SC 1808.
20
384 U.S. 436 (1966).

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person’s right to silence during custodial interrogations as well as obtaining a voluntary

waiver of the prescribed rights, has become a pervasive feature in the U.S. criminal
justice system. The absence of such a warning and voluntary waiver leads to the
presumption of compulsion with regard to the custodial statements, thereby rendering
them inadmissible as evidence. This is in stark contrast with the position in India where
there is no presumption of compulsion in respect of custodial statement except when
proved by the accused.

- Self-Incriminatory Evidence & Social Media: Social networking websites are the next
generation in communications technology, providing a platform for multi-faceted
communication between participating users. Social networking sites and email accounts
form an integral part of the way the world communicates today. Facebook posts,
comments, and photographs are a potentially rich source of evidence in criminal cases, as
they offer a window into a suspect’s thoughts that is rare outside of the pages of a diary.21

In the past few years (in the West), Facebook has emerged as a fertile source of
incriminating information from boastful or careless defendants who find in Facebook a
great way to project their outlaw persona to the world. 22 An online account on a social
networking website is a tempting source of evidence and it can provide prosecutors with
a treasure trove of incriminating evidence. In the Geetika Sharma murder case, the
victim’s brother said that the victim’s Facebook account has been deactivated and alleged
23
that the prime accused was behind it. The day is not too far when Facebook will
become a significant source of testimony in law in India too.

An example can help clarify the relation between the privilege against selfincrimination
and Facebook evidence. An accused X could have been the last person to have been
sighted on the murder site. If X’s Facebook page reveals that he was in fact present at the

21
Caren Myers Morrison, Passwords, Profiles and the Privilege against Self-Incrimination: Facebook and the Fifth
Amendment, 26 (Legal Studies Paper No. 2012-05), Georgia State University of Law, (2012).
22
Supra 22.
23
Kanda had enough time to destroy evidence: Geetika's brother, DECCAN HERALD at:
available at: http://www.deccanherald.com/content/272452/geetika-case-former-haryana-
minister.html

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murder site or close to the murder site, at the time of murder, this information could
incriminate him. It is here where the nature of information available on Facebook
becomes a bone of contention. When faced with something other than a declarative oral
or written statement, the U.S. Supreme Court has defined a compelled act as
‘testimonial,’ if it ‘explicitly or implicitly relates a factual assertion or discloses
information.’24 The Supreme Court has accepted ‘physical or real evidence’ 25 as long as it
does not ‘disclose the contents of his own mind’.26

Section 11 of the Indian Evidence Act embodies the facts which otherwise irrelevant
become relevant. It states: “Facts not otherwise relevant are relevant:
1. If they are inconsistent with any fact in issue or relevant fact;
2. If, by themselves or in connection with other facts they make the existence or
nonexistence of any fact in issue or relevant fact highly probable or improbable.”

As stated earlier, X’s Facebook page may reveal that he was present at the murder site at
the time of murder. The fact that he was at the murder site, at the time of murder, makes
it highly probable he could have, in fact, committed the crime. Thus, this irrelevant fact
becomes a relevant one as it has by itself made the existence of a fact in issue highly
probable. Therefore, by allowing the trial agency access to one’s Facebook page, the
accused is in fact furnishing evidence against himself.

24
Doe v. United States, 487 U.S. 201 (1988).
25
Schmerber v. California, 384 U.S. (1966)
26
Doe v. United States, 487 U.S. 201 (1988)

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 CONCLUSION:

- Law has always been an active practice as it changes agreeing to the latest trends of the
society and principles. The Legal System must indulge progress and advancements in
science & technology as well. But it must be kept intact that it shall not be against the
basic fundamental principles and good of the society at large. Just and equitable
principles form the very basis of the Criminal Justice.

- The Right as enshrined under Article 20(3) prima facie preserves the interests of the
person accused of an offence but as a fundamental principle it also preserves the interests
of the State so as to maintain law and order in the society. Self-incrimination in itself is a
very broad principle and for its effective use the Judiciary has to understand the ethical,
scientific, technological aspects balancing them with the legal umbrella. The shortcoming
of Article 20(3) is that it is applicable only to proceedings of criminal nature and is
provided only to an alleged offender. However, by interpreting Section 161(2) of CrPC, a
witness or prime suspect in a criminal case can also avail the benefit of this Right. It is
settled that this Right is not subjected to waiver but if a person voluntarily and knowingly
that he possesses such right decides to waive it, and then it is by the will of the person
that the right stands waived off.

- Importance to strike a sense of balance between the rights available to the accused and
the interests of victims/state are very much necessary for the assurance of justice. No
settled principle of law can be established to define what constitutes such balance. It is
agreed that restrictions are necessary for the benefit of public policies but whether a
restriction is reasonable depends upon the facts of each case. Hence, it makes the role of
the judiciary more crucial as it becomes the duty to analyse in detail the facts and
circumstances of each case for said purposes.

- Lastly, it is the duty of the State to assure their citizens that their rights are protected and
to ensure that no individual would get an unfair trial. Though, there have been many

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instances where State has utterly failed due to clash of interests of society at different
levels. To counter such clashes a system of accountability must be reached. Public’s
“Right to Know” is one way in order to maintain the sanctity of fundamental rights. One
can claim only if one has the knowledge of such claim. Standards of quality & security at
the same are needed to be maintained.

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