Introduction:
To criminate is “to charge one with a crime or to furnish ground for a criminal prosecution or to expose a person to a criminal charge”[1]. Therefore, self-incrimination can be understood to be providing grounds for criminal prosecution on one’s accusation. Right against self-incrimination has been long recognized in many countries, especially Common Law countries including the United States of America.
The popular Fifth United States Constitutional Amendment recognized right against self-incrimination and explicitly provided for the same[2]. Though its origins can be traced back to Common Law History, the principle of self-incrimination holds relevance even in today’s world. With technological advancements increasing at a rapid pace, questions have arisen whether an accused’s mobile phone passwords when demanded by a Court or competent authority as evidence, would constitute self-incrimination, which incidentally was also an issue heard by the Supreme Court of the United States of America in a landmark judgement[3]. Questions regarding self-incrimination and provisions of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) 1985) were looked into by the Supreme Court of India in a recent hearing on 29th October 2020[4].
International laws or foreign Constitutional provisions and the Indian Constitutional provisions and safeguards against self-incrimination have some commonalities as well as discrepancies. Irrespective of these, there are however some new questions of law which have to be answered by the Judiciaries of all the nations. The scope of this article ranges from brief outlooks on international provisions on self-incrimination and a more elaborate outlook on the Indian scenario, therefore paving way for identifying areas where India might be lacking, or is advanced when compared to its counterparts.
Self-Incrimination
Self-incrimination is based on the legal maxim nemo teneteur prodre accussare seipsum which translates to “no person is bound to accused themselves” and therefore the law does not bind an accused to criminate himself. Instead, the State has to prove an accused guilty of the alleged crime, as was held by the House of Lords in the landmark case of Woolmington v. DPP[5].
This duty was considered by the Court to be a “golden thread” in the English Common Law and the case has the legacy of being a precedent for a plethora of future cases. In the landmark Indian case of M.P. Sharma v. Satish Chandra[6], the Court held that safeguard self-incrimination extends to oral, documentary or other forms of evidence, therefore widening the scope of protection against self-incrimination. Perceptions of self-incrimination in different countries have been discussed hereunder.
Self-Incrimination in the United States of America
The popular Fifth Amendment to the US Constitution provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger…”[7]. The provision was further strengthened and clarified through judicial intervention. For instance, the US Supreme Court in the landmark case of Miranda v. Arizona[8] mandated that a person who is being arrested be informed of the rights he has under the Fifth Amendment, especially the “right to remain silent”, which is nothing but an expression signifying protection against self-incrimination.
Self-Incrimination in England
There are some differences between the English and the American perception of the right against self-incrimination, largely due to some socio-political factors[9]. Right against self-incrimination is better known as “the defendant’s privilege” in England. Unlike the USA, when a person claims this right, the Court will stop questioning the person on the whole and the Jury will decide based on arguments made by the Counsels. Therefore, under the English Law, an accused cannot choose specifically which questions he refuses to answer, which in the USA is commonly called “pleading the Fifth”.[10]
Self-Incrimination in France
The French perspective of self-incrimination is more or less similar to that of its English, American and Indian counterparts, except that it varies in one aspect. Under the French Law, it is mandatory for an accused to have his pictures taken and to provide his fingerprints when verification of the crime is needed, as is provided under Article 61[11] of the French Code of Criminal Procedure or Code de procédure pénale.
Self-Incrimination in India
Article 20(3) of the Indian Constitution is the primary provision which deals with self-incrimination in India. It simply states that “No person accused of any offence shall be compelled to be a witness against himself”[12]. This provision has been interpreted by the Courts in India across many cases and has further been safeguarded through provisions in other legislation including the Indian Evidence Act.
In Mohd. Dastagir v. State of Madras[13], the Supreme Court held that ‘compulsion’ under Article 20(3) indicates those circumstances under which a person accused of a crime is under duress and it, therefore, rejected the plea of the accused. The accused had pleaded the request of the Deputy Superintendent of Police to place the bribe money the accused had given (which the DSP refused) on a table had put him under duress and he, therefore, was not liable when the Police seized that same money. The Court observed that the person was not even accused of bribery at the time of his money being seized and he also was not under duress, thereby not attracting the safeguard under Article 20(3).
In the landmark case of Selvi v. State of Karnataka[14], the Supreme Court held that an accused cannot be compelled to give evidence, beyond his volition. This means that an accused can volunteer to give evidence but cannot be forced to or tricked into giving said evidence. Accordingly, the Court held that procedures such as polygraph tests or narco-analysis violated Article 20(3).
In the recent case of Tofan Singh vs. The State of Tamil Nadu, the Supreme Court held that the confessions made to a Narcotics Officer would not be admissible in Court. This judgement was based on Article 20(3) and also Section 25 of the Indian Evidence Act, 1872 (IEA), which provides that confessions made by an accused to a police officer cannot be used against him in Court[15]. It can be seen that Section 25 of the IEA itself substantiates the right against self-incrimination enshrined in the Constitution.
In State (Delhi Administration v. Jagjit Singh, the Court observed that an accused ceases being an accused when is pardoned under Section 302 of the Criminal Procedure Code (right to a Magistrate to permit third-party as prosecution)[16]. The Court held that evidence he gives as an approver on the side of the Prosecution cannot be used against him in any other cases as he is also protected under the proviso clause to Section 132 of the IEA. As per Section 132, a witness cannot refuse to answer on the grounds of crimination, except for when his answers will lead to his arrest, prosecution or can be used as proof in another criminal proceeding against him.[17]
Conclusion
The aforementioned provisions and judicial pronouncements of the USA, England, France and India paint a clear picture of how self-incrimination as a concept has different perceptions across countries. However, there is an underlying common fact, which is that self-incrimination is considered undesirable in all these countries. India has many strictly-defined provisions which are further substantiated through judicial pronouncements in the matter of self-incrimination. However, certain developments have arisen recently which have not been taken into account by the Indian judiciary.
The first issue is with respect to usage of WhatsApp chats to book people under the NDPS Act. WhatsApp chats of individuals can be accessed by Government agencies including the Narcotics Control Bureau (NCB) through processes including ‘mobile forensic cloning’, through which data from a phone can be replicated in another phone.[18] Section 67 of the Act also provides unlimited power to the Central Government and other authorities through its somewhat vague wording, stating that authorized officials can demand relevant documents or things of useful nature to the investigation. This provision therefore can extend to WhatsApp chats. Even though the justification is not without restrictions (corroboration between incident and WhatsApp chat mandatory), the scope for self-incrimination is still high and it accordingly needs to be addressed either by legislative or judicial institutions.
The US Supreme Court in the landmark case of Riley vs. California[19] held that accessing content on a person’s phone without a warrant in order to make an arrest is unconstitutional. In India however, there are no specific provisions which deal with usage of the contents of a person’s mobile phone in order to gather evidence against him. Such an act violates not just Article 20(3) but also of the right to privacy, guaranteed under Article 21.
While there are some judgements in contrary to the Riley case[20], the US Supreme Court through that judgement had extended the scope of protection against self-incrimination and the Indian Judiciary must follow suit, given the changing dynamics as having been previously mentioned.
[1] Criminate, Black’s Law Dictionary (4, 1979).
[2] US Const. amend. V (1791).
[3] Riley v. California, 575 US 373 (2014).
[4] Tofan Singh vs. The State of Tamil Nadu, MANU SC 797 (2020).
[5] UKHL 1 (1935).
[6] AIR SC 300 (1954).
[7] U.S. Const. amend. V (1791) https://constitution.congress.gov/constitution/amendment-5/#:~:text=No%20person%20shall%20be%20held,the%20same%20offence%20to%20be.
[8] 384 US SC 436 (1966).
[9] G. Arthur Martin, The Privilege Against Self-Incrimination under Foreign Law, 51(2) Journal of Criminal Law and Criminology 166 (1960).
[10] Id at 167.
[11] Code de procédure pénale, art. 61 (1992) https://www.codes-et-lois.fr/code-de-procedure-penale/article-61 .
[12] India Const. art. 20(3) (1950) http://legislative.gov.in/sites/default/files/COI-updated.pdf.
[13] AIR SC 756 (1950).
[14] AIR SC 1974 (2010).
[15] Indian Evidence Act, § 25 (1872) http://legislative.gov.in/sites/default/files/A1872-01.pdf.
[16] The Code of Criminal Procedure § 302 (1973) http://legislative.gov.in/sites/default/files/A1974-02.pdf.
[17] Indian Evidence Act, § 132 (1872) http://legislative.gov.in/sites/default/files/A1872-01.pdf.
[18] WhatsApp defends user privacy as NCB summons Deepika Padukone, Shraddha Kapoor in drug probe, Tech Hindustan Times, (Sept. 25, 2020) https://tech.hindustantimes.com/tech/news/whatsapp-defends-user-privacy-as-ncb-summons-deepika-padukone-shraddha-kapoor-in-drug-probe-71601014301076.html#:~:text=role%20in%20it.-,Defending%20user%20privacy%20and%20the%20messaging%20platform’s%20protected%20messages%2C%20WhatsApp,hands%20on%20old%20WhatsApp%20messages
[19] 573 US 373 (2014).
[20] Sidhharth Sijoria & Anurag Andley, Self-incriminaiton in the digital age: Can the police force an accused to reveal passwords? BarandBench.com (Oct. 16, 2020) https://www.barandbench.com/columns/self-incrimination-can-police-force-accused-to-reveal-password.
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