-By Shantanu Mishra
Right against self-incrimination has its origins in the English common law and cannon law. It is an important right amongst a few rights which are available to the accused. The fact that it has been envisaged as a fundamental right in the Indian Constitution shows the importance that should be accorded to this right. However, much depends upon the lens with which the right is viewed. Utilitarian and Deontological approaches both account for a right against self-incrimination. What differs is the sanctity with which the right is viewed in each of them. In this post, the author highlights how the jurisprudence around right against self-incrimination has developed in a seemingly Utilitarian approach, which according to the author is not correct. To justify this, it is shown that the right against self-incrimination is a right in a strong sense (as Dworkin conceptualizes strong rights) and should have been interpreted with a deontological approach in order to appreciate the essence of this right. The author argues that such an interpretation can be achieved by the application of Dworkin’s theory of “Taking Rights seriously”.
Right against Self-incrimination: A utilitarian approach
Utilitarians advocate the view that the morality of any act can be judged by its end result. Any action which produces the maximum good is morally right. The end justifies the means and not the other way round. This means that Utilitarians would justify immoral acts as being moral if they serve the larger public interest. In context of the criminal justice system, bringing the criminals to justice would be the greatest good to the public. However, at the same, Utilitarians acknowledge that the investigation and establishment of guilt should be fair and accurate and no innocent person should be punished. If such accuracy is ensured, they would not shy away from using processes which would be violative of the rights of the accused but would be efficient in terms of criminal investigation. A concern for efficiency and reliability of evidence i.e., a utilitarian approach, can be observed in the earlier decisions of the Supreme Court around art. 20(3). For proving this, the author takes the help of two landmark judgments.
In the case of MP Sharma v Satish Chandra, the question before the court was whether search of premises and seizure of documents was violative of art. 20(3). The court answered it in the negative. It interpreted the word “compelled” formalistically saying that the search and seizure is done by the police and the accused is not compelled to do anything (¶17). It justified this with two arguments. First, that “power of search and seizure is an overriding power of the state for the protection of social security” (¶17). This essentially means that for the benefit of larger public good, search and seizures are justified. Second, they rely on the provisions enacted by the British colonial regime to understand the scope of the right. It is true that those provisions contained the protection against self-incrimination but the same was partial and used by the British for their utilitarian gains to curb dissent and maintain law and order (State of Gujarat v Shyamlal Mohanlal, ¶11). Testing a constitutional right on the anvil of such provisions is nothing less than a circumvention of the right. On the other hand, the court has also worked towards expanding the ambit of the right. The court held that ‘to be a witness’ meant any ‘positive volitional act that furnishes evidence’ (¶10). It meant that the person is performing a testimonial act. If a person is asked by the court or police to furnish a document, it would violate art. 20(3) (¶12).
In State of Maharashtra v Kathi Kalu Oghad, the question before the court was whether taking of fingerprints or handwriting samples was violative of art. 20(3). Here the court was also considering the definition of “to be witness” given in Sharma case. The Sharma case had given a broad definition by saying that it meant “to furnish evidence”. Being cognizant of the fact this might result in invalidation of various erstwhile criminal investigation tools and provisions (page 308), the court narrowed the definition. The court said “to be a witness” meant to give knowledge about a fact which can be altered by the accused (¶11-12). Fingerprints and handwriting samples being something which the accused cannot change no matter what kind of interrogative technique is used, this would not be of any evidentiary value. This is utilitarian in the sense that the court was concerned with the reliability of the evidence and its factual correctness. If the fingerprints, etc. cannot be altered, there can be no case of false or wrong confession and the criminal investigation would amount to accurate determination of guilt.
A distinction between testimonial evidence and samples which can be physically collected and are unalterable cannot be made on the principle of right against self-incrimination. The principle underlying right against self-incrimination would say that no information can be extracted from an accused person forcefully or by compulsion if that information is incriminatory. A principled application would not distinguish between information which can be altered or unaltered if it can be incriminatory. It would disregard any information that is extracted from the accused after compelling him/her which is incriminatory. This further strengthens the point that the approach in the Oghad was Utilitarian as a clear distinction was being made between evidence which he/she can change and which he/she cannot.
In both the cases discussed above, the court was not concerned with the rights of the accused at all. All it was doing was preserving the mechanisms which foster investigative efficiency by compromising with the rights of the accused.
Article 20(3): A Strong Right
Right against self-incrimination finds its place as a fundamental right in the Constitution of India. It is not merely a statutory right which was the case during British rule. Being a Constitutional guarantee and a ‘right to freedom’, it occupies a very special place. Moreover, it is not subject to any explicit reasonable restrictions as Art. 19 rights. Dworkin conceptualizes fundamental rights as rights in a strong sense which the government cannot easily override. These rights cannot be overridden on mere utilitarian grounds. Government’s act of overriding these rights by law are simply for utilitarian gains which cannot be a legitimate reason to abridge such rights (page 194). Hart, in his book Punishment and Responsibility, says that criminal law should pursue the aim of preventing crime. However, this aim should be achieved within the principles which have been set in place to limit its efficiency (page 8). In a sense, Hart is placing a higher value on the rights of the accused as the repercussions of criminal conviction are as high as social stigma and loss of liberty which is one of the heaviest penalty one can be subject to. Such conception of rights points towards a deontological approach.
Deontological theories advocate that acts should be driven by a duty rather than the state of affairs these acts will bring about. If a certain act is not in accordance with a right, it should not be undertaken no matter what public good such act might bring about. Such conception of this right makes sense as the right is a fundamental right which cannot be suspended even during a National emergency.
Right against Self-incrimination: A deontological approach
Having stated that the right against self-incrimination is a right in a strong sense, it becomes imperative to device out ways in which it can be interpreted. In this section, the author argues that a deontological interpretation to right against self-incrimination can be done by using Dworkin’s theory. To show this, the author considers the questions which the court addressed in Sharma and Oghad cases.
In his book ‘Taking Rights Seriously’, Dworkin enumerates three situations where the strong right can be abridged. It is argued that neither Sharma nor Oghad fell in any of them. The first situation is when a modified form (freedom of speech would be the right and right to give hate speech can be a modified form of the same) of the right is involved. In both the cases discussed, the right was directly involved as seizure of documents and taking of fingerprints and handwriting samples can be self-incriminatory. The second situation is when the right comes in conflict with another strong right. In such cases, a balancing of rights need to be done and the one which gets affected the most should be upheld. In a criminal case, the competing rights could be right against self-incrimination on one hand and right to justice of the victim on the other hand. If right against self-incrimination is curtailed, the accused can very easily be convicted for the crime which he might or might not have committed. In other words, his right gets abridged in totality. However, if the accused is granted this right, the victim still has the right to justice intact and which can be exercised with the help of other investigative processes and tools available. In other words, victim’s right does not get abridged in totality. Moreover, if right against self-incrimination is abridged, it is no guarantee that the correct person will be brought to the book. Hence, the right against self-incrimination being the largely affected one should be upheld.
The third and the last situation is where the cost of not abridging the right is very high (for example hate speech needs to be curbed as the cost of not abridging can be heavy like riots, etc.). If such would have been the case, right against self-incrimination would not have been a fundamental right, placed under the head of right to freedom with no explicit reasonable restrictions enumerated and immunity even during National emergency. Therefore, the application of Dworkin’s theory leads to a deontological interpretation of the right, appreciating it in its essence.
Selvi: A Departure
In Selvi v State of Karnataka, we see a departure from the approach found in erstwhile jurisprudence around art. 20(3). The question before the court was whether the use of methods like narco-analysis, brain mapping and lie detector test was violative of art. 20(3). The court answered in the affirmative.
The court took up the ratio of Sharma case and read it in a different way. It read ‘volition’ as a matter of choice as opposed to Oghad where it was read as changeability (page 317). It also differentiated the present case from the precedents by drawing a distinction between mental and physiological faculties. The court brought in the concept of mental privacy by reading Art. 20(3) along with Art. 21 (page 317). In other words, it can be said that the court recognised the right in a strong sense bringing in the concept of ‘choice’ and ‘mental privacy’ and made them central to the right.
In this way, the court was able to declare these methods as unconstitutional. Rather than being concerned about the efficiency of the investigative mechanism, the court took cognizance of the nature of the right it was dealing with. In this sense, this judgment shows a departure from the utilitarian approach of its precedents.
The interpretation of right totally depends upon the perspective it is looked at with. It is not that there is no place for right against self-incrimination in Utilitarian thought. But the importance of the right gets varied if the process is somehow made more efficient. If the law enforcement becomes perfect and free of malpractices, Utilitarians will have no problem in doing away with the right. This not being the case, correct appreciation of right is necessary due to the quantum of punishment as the end result of conviction. One such approach is deontological approach which can be adhered to with the application of Dworkin’s legal theory. Selvi is the initial step towards such realization. Given that Right to privacy is now a fundamental right, stronger appraisal of the right can be seen in future.
[Shantanu Mishra is a second year B.A.LL.B (Hons.) student at the National Law School of India University, Bengaluru]