The Application of Modern Methodologies in Interrogations and Confessions [Part II: Legal Position]

[Abhirup Das has a keen interest as well as specializes in Criminal Law. He is currently an Assistant Professor at National Law University, Jodhpur.]

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Note: This work has been divided into multiple parts. This series of work elucidates various interrogation techniques and manuals that can be sources of knowledge for the development of interrogation manuals for Indian law enforcement organizations. Hereunder, we present Part II of the work that shall deal with the legal position of interrogations and confessions in India and abroad. In part I of the work, the author had provided a brief history of interrogations and confessions. It can be accessed here: Part I

There are various similarities and differences in the legal positions regarding interrogations and confessions in India and abroad. The legal system in England has changed to a substantial extent after the introduction of the Police and Criminal Evidence Act, 1984; the legal position in the United States has not changed with regard to the interrogation of the accused even after the introduction of the PATRIOT[1] Act, 2001. One may examine the changes and the contrasts as the legal positions developed through the various cases-laws and legislations.

So far as England is concerned, in King v. Warickshall[2], the Court observed:

A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers; but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit ought to be given to it; and therefore it is rejected.[3]

This is an English case, and it is relevant because the Police and Criminal Evidence Act, 1984 (hereinafter, PACE) completely overhauled the procedure of investigations in England and Wales. Since Parliamentary Sovereignty exists for England, it is relatively easier for English law to undergo swift paradigm shifts. As per PACE, a person suspected of a criminal offence must be cautioned before being questioned about it. [4]

Some of the distinguishing features of the legal position in England after the introduction of PACE are that persons detained at a police station must be informed of their legal rights; the police can detain suspects for 24 hours without a charge[5]. Officers of the rank of superintendent or above can authorize a continued detention of up to 36 hours[6]. On an application on oath before a Magistrate, detention can be extended to a maximum of 96 hours[7]. In any 24 hour period, the detainee must be allowed a continuous period of rest of least eight hours[8]. There are special provisions for detainees who are vulnerable (and thus have diminished cognitive capabilities) in accounts of their age or mental problems relating to access to a responsible adult (known as an ‘appropriate adult’) for assisting them. And that all interviews shall be tape-recorded (there are some exceptional circumstances when tape-recording is not required, as in the case of terrorist offences) which is a major lacuna since most human rights violations take place in cases pertaining to terrorism-related offences.

The legal impact of PACE has been very significant so far as the human rights of the interrogated suspect are concerned. Prior to the promulgation of PACE, certain instances of human rights violations during interrogations came to light in the UK, primarily as a consequence of the European Convention on Human Rights. Some notable cases include – the case of Ireland v. United Kingdom[9] decided by the European Court of Human Rights wherein the notorious “Five Techniques”[10] of torture were used.

The problem with Indian laws of investigation procedures is that they were enacted prior to 1976 when the International Covenant on Civil and Political Rights (hereinafter, ICCPR) came into force. Although the ICCPR was adopted in 1966, some of the procedures in the Indian law of criminal procedure had to be amended post-1973, when the Code of Criminal Procedure was enacted and the Supreme Court was constrained to give expansive interpretations to fundamental rights in order to issue guidelines for interrogations and confessions in order to interpret Indian laws considering India’s international human rights obligations.

The United States of America’s Country Reports on Human Rights Practices for 2013[11], states:

Widespread impunity at all levels of government remained a serious problem. Investigations into individual cases and legal punishment for perpetrators occurred, but in many cases, a lack of accountability due to weak law enforcement, a lack of trained police, and the overburdened and under-resourced court system created an atmosphere of impunity.

The United States of America’s Country Reports on Human Rights Practices for 2016[12], states:

According to a National Law University, Delhi study released in May, a significant percentage of prisoners on death row reported that they lived in inhumane conditions, were denied due process and were subjected to torture. The university’s Death Penalty Research Project interviewed 373 of 385 current death row inmates between July 2013 and January 2015. Of the 270 prisoners who spoke about their experience in police custody, 216 said they had been tortured.

However, this is not the first time that India has been criticized abroad for ineffective policing practices. In Chahal v. United Kingdom[13], the Grand Chamber of the European Court of Human Rights held by twelve votes to seven that, in the event of the Secretary of State’s decision to deport the first applicant to India being implemented, there would be a violation of article 3 of the Convention (i.e. European Convention of Human Rights). The Commission upheld this complaint, which the Government contested.[14] Article 3 of the said Convention, is a non-derogable safeguard against torture or inhumane or degrading treatment.[15]

The Malimath Committee Report[16] gives interesting insights on the right to silence. The Committee was of the opinion that the accused is a good source of information about the offence and that article 20(3) sometimes restricts the scope of the information that can be obtained from the accused.

It is pertinent to note here that Amnesty International has criticized the Malimath Committee’s Report[17]. Considering the level of external interference in non-governmental multinational organizations, the criticism may not be entirely impartial. It is evident that a need is perceived for the reformation of the techniques of investigation & interrogation. However, it is neither reasonable nor desirable to jump to any conclusion until further evidence is produced. Therefore, some of the following observations may be taken into consideration for the analysis of the said need for the reformation. Whether such reformation is imperative or not, can be illustrated in the light of a plethora of cases.

In D.K. Basu v. State of West Bengal[18], the Supreme Court of India laid down many pertinent guidelines for arrest and detention of suspects & accused. D.K. Basu’s Case was a landmark so far as the liberty of individuals under arrest was concerned, but the fundamental right against self-incrimination was to be acknowledged through later cases. In Nandini Satpathy v. Dani(P.L.)[19], the Apex Court observed that article 20 (3) of the Constitution must be read with section 161 of the Code of Criminal Procedure. The Law Commission of India in its 180th Report[20] discussed exhaustively on the Right against self-incrimination. It was of the opinion that the shifting of the burden of proof by special legislations such as the Prevention of Corruption Act, 1988 are diluting the right against self-incrimination embodied in article 20(3).[21] Thus, there is a real need to reform the system of investigations and interrogations in the Indian Criminal Justice Administration. It is easy to identify problems, but the solutions are more difficult to find. Especially since experimental solutions have unprecedented consequences when implemented and have a tendency to lead to greater problems. Therefore, the scientific advances which have not yet been incorporated into criminal investigations must be scrutinized meticulously before assimilation into the operating procedures of law enforcement organizations. The Code of Criminal Procedure, 1973 makes it abundantly clear in section 54 that all arrested persons have the right to be medically examined. A confession made to police officers is not admissible in evidence under sections 24 & 25 of the Indian Evidence Act, 1872. section 24 of this Act also provides that for a confession to be admissible, such confession must be made voluntarily. If it is made under any inducement, threat or promise, it is inadmissible in criminal proceedings. Section 27 of the Indian Evidence Act provides, however that to the extent that a confession made before the police officer leads to the discovery of evidence, it shall not be rendered inadmissible. Section 162 of the Code of Criminal Procedure also provides that no statement of a witness recorded before a police officer can be used for any other purpose than contradicting his statement before the Court. Section 164 of the same Act provides that it is for the magistrate to ensure that a confession or statement being made by an accused person is voluntary.

[In the upcoming part, the author shall discuss various techniques of interrogations.]

[1] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

[2] King v. Warickshall UK LDB 1783, quoted in Nathan J. Gordon, William L. Fleisher., Effective Interviewing And Interrogation Techniques 247 (Elsevier, 3rd edn., 2011)

[3] Ibid.

[4] Gisli H. Gudjonsson, The Psychology Of Interrogations And Confessions : A Handbook, (John Wiley & Sons, 2003), “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.”

[5] Police and Criminal Evidence Act, 1984, section 41

[6] Police and Criminal Evidence Act, 1984, section 42

[7] Police and Criminal Evidence Act, 1984, section 44

[8] There should be a break from questioning for at least 15 minutes every two hours. Meal breaks should normally last for at least 45 minutes.

[9] Ireland v. United Kingdom, (5310/71) [1978] ECHR 1

[10] These five techniques were – wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink. The ECHR held them to amount to torture.

[11] Country Reports on Human Rights Practices for 2013 – India, Bureau of Democracy, Human Rights and Labor, US State Department

[12] Country Reports on Human Rights Practices for 2016 – India, Bureau of Democracy, Human Rights and Labor, US State Department, pp. 5-6.

[13] Chahal v. United Kingdom 23 EHRR 413

[14] Ibid.

[15] Article 3 of the European Convention on Human Rights, reads, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

[16] Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003

[17] India: Report of the Malimath Committee on Reforms of the Criminal Justice System: Some observations, Amnesty International, 19 September 2003 http://www.refworld.org/docid/3f914cba4.html

[18] D.K.Basu v. State of West Bengal (1997) 1 SCC 216

[19] Nandini Satpathy v. Dani(P.L.) AIR 1979 SC 447, the Apex Court also observed, “Compelled testimony’ must be read as evidence procured not merely by physical threats or violence psychic torture, atmospheric pressure, environmental coercion tiring interrogative prolixity, overbearing and intimidatory methods and the like not legal penalty for violation. So the legal perils following upon refusal to answer or answer truthfully cannot be regarded as compulsion within the meaning of Art. 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt it becomes compelled testimony violative of Art. 20(3)…”

[20] Law Commission Of India, One Hundred Eightieth Report On Article 20(3) Of The Constitution Of India  And The Right To Silence, May 2002  http://lawcommissionofindia.nic.in/reports/180rpt.pdf

[21] Ibid., “…in recent times, the basic principle that the prosecution has to prove the charge of guilt against the accused beyond reasonable doubt is being diluted by the legislature in several statutes…”

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