An Accused Lies on the Government

In any criminal investigation, interrogation of suspects and the accused play an important role. Gathering evidence against the accused is the cornerstone of any criminal investigation. The responsibility of prosecuting an accused lies on the government, as a result, there is always a possibility that the state having enormous muscle power might infringe the rights of the accused by proceeding with the trial in an unjust manner. In order to protect the accused from the possible threat of being convicted unjustly, certain rights have been devised. These rights have also been recognized by the framers of the Indian Constitution and in turn, inserted the rights in Article 20 under the heading “protection in respect of conviction for offences”.

The rights under Article 20 could be availed by the citizens as well as non-citizens. The term “person” for the purposes of Article 20 also includes a corporation which is accused, prosecuted, convicted or punished for an offense. The right is so critical to the justice delivery mechanism that it cannot be suspended even during an emergency. It also constitutes a limitation on the legislative power of the parliament or the state legislatures under Article 246, read with the three Legislative Lists contained in the Seventh Schedule to the constitution.

In this paper, the third clause of Article 20 shall be discussed in detail, which appears with the wording- “No person accused of any offence shall be compelled to be a witness against himself”. This clause is based on the maxim ‘Nemo tenetur prodere accussare seipsum”, which means that “no man is bound to accuse himself”. It is known as the Miranda Principle. This provision embodies the principle of protection against compulsion of self-incrimination, which happens to track its origin to being one of the most important principles in the British system of jurisprudence. This principle was also enacted into the United States Constitution by the 5th amendment. The constitution of India has also accepted the principle and raised its status to being a constitutional prohibition.

The characteristic features of Common Law criminal jurisprudence are that an accused must be presumed to be innocent till the contrary is proved and that the accused shouldn’t be made to make any admission or statement against him. It is the duty of the prosecution to establish the guilt of the accused.

The privilege under Article 20 (3) of the Indian Constitution is given to a person who has been accused of committing a crime. An accused for the purposes of the Article is a person against whom a formal accusation relating to an offence has been made which in normal course will result in prosecution. However, in order to avail the benefit under Article 20(3), it is not necessary that the actual trial or inquiry should commence before a court or a tribunal. If against a person, a First Information Report (FIR) has been recorded by the police and investigation has been ordered by a magistrate, then that person can seek protection under Article 20(3). A person who has not been named in the FIR can still be provided protection under the provision if oral or circumstantial evidence point to the guilt of the said person and he has been taken into custody on that basis.

In the United States of America, the privilege against self-incrimination is given to accused as well as the witnesses. Under English law too protection has been extended to the witnesses, where a witness is protected from answering the questions which may lead to criminal prosecution or any other penalty or forfeiture. In India, a witness is not protected under the provision as it would make things difficult for the police and many criminals would go scot-free.

Nandini Satpathy, the former Chief Minister of Orissa, was directed to appear at the Vigilance Police Station, Cuttack, in connection with a vigilance case against her. Nandini Satpathy was given a long list of questions in writing about her alleged acquisition of assets disproportionate to her known sources of income. She exercised her right under Article 20(3) of the Constitution and refused to answer the questions. Article 20(3) guarantees that no person accused of any offence shall be compelled to be a witness against oneself.

She was booked under Section 179 of the Indian Penal Code (refusing to answer a public servant authorized to question). When the magistrate issued her summons of appearance she challenged it before the High Court, saying her right under Article 20(3) was infringed.

Her appeal was allowed magistrate‘s proceedings against her were quashed. Besides, it was likely that some of the questions posed to her were self-incriminatory. It was in this case that the Supreme Court laid down that the prohibitive sweep of Article 20(3) went back to the stage of police investigation. Justice Krishna Iyer held that an accused person was entitled to keep his or her mouth shut if the answer had a reasonable prospect of exposing him or her to guilt in some other accusation, actual or imminent, even though the investigation under way was not with reference to that. However, Justice Iyer said an accused was bound to answer where there was no clear tendency to criminate. The “right against self-incrimination” is now viewed as an essential safeguard in criminal procedure. Its underlying rationale corresponds broadly with the objectives of ensuring the reliability of statements made by an accused and ensuring that such statements are made voluntarily.

The Court also laid down some guidelines for the due observance of Article 20 (3) by police authorities one of which was that they (the police) must inform the accused that he has a right to call a lawyer before answering to any of their questions. The Nandini Sathpathy judgment also held that under Article 20(3), a suspect is also protected. Hence this case has been an important event in the process of declaring Article 20(3) vital to the democracy.

The guarantee in Article 20(3) is against the compulsion ‘to be a witness’ to be a witness means making of oral or written statement in or out of court by a person accused of an offence. In other words, it means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in a court or otherwise. Such statements are not confined to confessions but also cover incriminatory statements, i.e. to the statements which have a reasonable tendency strongly to point out the guilt of the accused. “To be a witness” is not equivalent to “furnishing evidence” in its widest significance, that is to say, as including not merely making of oral or written statement but also the production of documents or giving materials which may be relevant at trial to determine the guilt or innocence of the accused.

The giving of thumb impression or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are nt included in the expression “to be a witness” in Article 20(3). So taking voice samples of an accused by the police during the investigation is not hit by this Article. But the results obtained through involuntary administration of either narco-analysis technique, polygraph examination or Brain Electrical Activation Profile (BEAP) Test come within the scope of “Testimonial Compulsion” and are, therefore, protected by Article 20(3).

The prohibition is only against the compulsion of the accused to give evidence against himself. In Kalawati v. H.P. State, the Supreme Court has held that Article 20 (3) does not apply at all to a case where the confession is made by an accused without any inducement, threat or promise. Similarly, retracted confessions, although they are of very little probative value, are not repugnant to this clause. To bring the evidence within the inhibition of article 20(3) it must be shown that the accused was compelled to make the statement having a material bearing on the criminality of the maker.

Mohd. Dastagir v. State of Madras -The appellant had gone to the bungalow of the Dy. Superintendent of Police to offer him a bride contained in a closed envelope. The police officer threw the envelope at the appellant who took it up. Soon thereafter, he was asked by the police to produce the envelope and he took out from his pocket some currency notes which were seized by the police. The appellant pleaded that the currency notes seized by the police should be allowed to be produced as that would amount to the admission of compelled evidence. The Court held that clause (3) of Art.20 did not apply firstly because no compulsion or duress was exercised against the accused and secondly because at the time the currency notes were seized he was not an accused. So also the tape-recorded evidence, which is unknown to the accused, is not rendered inadmissible as the accused’s conversation was not extracted under duress or compulsion.

In Nandini Satpathy case, the Court has widened the scope of compulsion and held that “compelled testimony” is evidently procured not merely by physical threats or violence, but also by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidating methods and the like. Admission of the tape-recorded statement of an accused taken without his knowledge but without any compulsion is not barred by article 20(3).

Supreme Court has rightfully denounced the use of narcoanalysis, brain mapping, and polygraph tests on any person, including accused persons, suspects, and witnesses. In Smt Selvi & Others vs State of Karnataka, the Court declared that these interrogation methods amount to cruel, inhuman, and degrading treatment and violate individuals’ rights against self-incrimination under Article 20(3) of the Indian Constitution. The Court held that (a) no one can be forced to undergo any of these tests, (b) the results garnered from even voluntarily administered tests cannot be admitted into evidence in court, and (c) evidence garnered by using the results of a voluntarily administered test can only be used to aid further investigation if a subject gives informed consent with appropriate safeguards followed, including judicial recording of consent and the presence of a lawyer. In reaching this holding, the Supreme Court overturned several poorly reasoned high court judgments upholding the use of narcoanalysis and other tests and has thereby restored some legitimacy to the judiciary in matters of criminal investigation and prosecution.

The Supreme Court also held that forcing someone to take the test amounted to compulsion for purposes of self-incrimination and that even if a given test is voluntarily undertaken, the results of the test amount to compelled testimony that could not be admitted into evidence. The Court reasoned that the results of the tests constituted ‘personal testimony’, and that the lack of conscious control over the answers given or the inferences drawn during any of the tests denied an individual the right to choose whether to speak or remain silent. The Court highlighted the role of the right against self-incrimination as a ‘check on police behavior during the course of investigation’ and a ‘vital safeguard against torture and other ‘third-degree methods’ that could be used to elicit information’.

The Court also described the unreliability of the information garnered from any of the tests, noting the subject’s suggestibility by examiners during narcoanalysis and the likelihood of misleading or false information conveyed during any of the tests. The Court further noted that the use of tests frustrated the right to receive legal advice and prepare an adequate defense due to the involuntary nature of the responses, and removed the beyond reasonable doubt standard of proof given the ‘questionable scientific reliability of these techniques’.

Despite the sharp denunciation of narcoanalysis, brain mapping, and polygraph tests, the Supreme Court articulated a narrow exception for their use. If an individual voluntarily agrees to undertake any of the tests, the Court held that although the results of the tests themselves could not be admitted into evidence in court, ‘any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted’. This exception means that the Court still opened the door for these discredited techniques’ continued use.

The Court has held that if an individual is fully informed about the nature of the tests and voluntarily consents before a magistrate in the presence of her/his advocate, then if any information gathered through the tests is helpful it should be allowed to be used for further investigation. However, the history of the use and abuse of these and other methods of interrogation raises suspicions that police will continue to coercively administer these tests in violations of individuals’ fundamental rights and subsequently claim voluntariness (if ever questioned). Thus, while the Supreme Court’s decision is a positive step towards ending the abusive use of narcoanalysis, brain mapping, and polygraph tests, any continued use of these tests must be diligently monitored and regulated.

The recent Supreme Court judgment prohibiting the use of narcoanalysis, brain mapping, and polygraph tests could not be more timely. The problems with such tests were evident in a number of cases, including in the case of Arun Ferreira which is discussed here. The case of Arun Ferreira is relevant as many activists have been arrested in the year 2018 regarding the case that will be discussed here.

Ferreira’s case is a textbook example of everything that is wrong with India’s criminal justice system. Not only was the 39-year-old Mumbai resident forced to undergo the tests now banned by the Supreme Court, but he was also subjected to torture in custody and was denied due process – both endemic problems that need to be urgently addressed. Ferreira was arrested along with three others in Nagpur on 8 May 2007 on allegations of being a communications and propaganda head for Naxalites. Ferreira was charged with violating various sections of the Indian Penal Code, the Arms Act, the Unlawful Activities (Prevention) Act, the Indian Railways Act, the Bombay Police Act and Loss of Public Property Act in eight separate cases filed against him. The police said Ferreira was allegedly carrying a ‘pen drive’ containing information that was evidence of ‘anti-national’ activities.

Ferreira had never been involved in or suspected of being involved in any criminal activities. Indeed, according to informed sources, neither his name nor description was in any of the police intelligence files or in any Naxal-related crime records throughout the country prior to his arrest. Moreover, the charge sheets filed against Ferreira have various problematic elements that cast doubts on their validity. For example, in some of the cases against him, Ferreira’s name or physical description is absent in all of the first information reports. In addition, the prosecution witnesses who claimed to identify Ferreira only did so after being shown his photograph and after he was arrested. In another case, Ferreira was accused of a crime which he could not have committed as he was already held in Nagpur jail at the time.

Meanwhile, Ferreira was subjected to various forms of torture by police and intelligence officials following his arrest. He was repeatedly slapped and punched and his head banged against a wall. He was seriously beaten on the soles of his feet with a bajirao, a one and a half foot whipping strip made from conveyor belt material. This form of torture, called falanga, has been found to cause severe pain as well as long-term damage without showing external marks of injury. In addition, Ferreira faced long harsh interrogations, for 16 to 20 hours.

Ferreira believes that he was targeted and arrested under false charges because of his work as a social activist. He is known to have campaigned for the rights of slum-dwellers against forcible eviction and has highlighted the plight of victims of religious and caste violence.

Ferreira also underwent, without his consent – narcoanalysis, brain mapping and polygraph tests at the Mumbai and Bangalore Forensic Science Laboratories (FSLS). The Supreme Court recently proclaimed that all of these tests violate an individual’s right against self-incrimination under Article 20(3) of the Constitution.

Ferreira was reportedly forced to sign a letter of consent for narcoanalysis testing and when he refused, the prosecution presented his forged signature to the magistrate in question. When he denied in court that he had given consent, the magistrate still allowed the tests to be conducted, and Ferreira forcibly underwent psychological profiling, narcoanalysis, brain mapping, and polygraph tests at the Mumbai FSL. When the authorities did not receive what they perceived as satisfactory results from the tests, the Maharashtra police secretly obtained permission from a lower court in Bhandara, without the knowledge of Ferreira or his legal counsel, to have addition al tests done at the Bangalore FSL. Ferreira was again forced to undergo these tests.

Under the Supreme Court’s judgment, this forced confinement at the FSLS as well as the forced conducting of the tests violated Ferreira’s right to privacy and amounted to cruel, inhuman, and degrading treatment. While he was reportedly forced to sign a consent form just prior to the tests under threat, the signatures obtained do not amount to the voluntary consent given that a court order had already overruled his refusal to consent. Indeed, Ferreira issued an additional note upon signing, stating that he was not giving consent but was only following the court orders. Moreover, as noted above under the Supreme Court’s judgment, regardless of whether Ferreira allowed the tests to go forward, they were not voluntary in a true sense and still amounted to an invasion of privacy and cruel, inhuman and degrading treatment. Moreover, the way in which the tests were conducted further infringed upon Ferreira’s rights. For example, there was no physician present during the narcoanalysis test at the Bangalore fsl.

Mr. Arun Ferreira was acquitted of all offenses in the year 2014, but until then many of his so-called “fundamental rights” were infringed horribly. The fact that Article 20(3) allows voluntary administered tests is a loophole that can be misused by the authorities and leaves scope for the investigating authorities to obtain evidence illegally.