[dropcap]C[/dropcap]OMMENTING on the situation in India immediately after the end of the 1975-1977 Emergency, Justice V.R. Krishna Iyer said in his Nandini Satpathy v. P.L. Dani judgment (1978), “A flash flood of demands against self-incriminatory interrogation has risen now when very important persons of yesterday have got caught in the criminal investigation coils of today”.
Forty-one years on, once again, “very important persons of yesterday (are getting) caught in the criminal investigation coils of today”. In a blitzkrieg on freedom, the Union of India is on its feet in courts across the country demanding imprisonment of its ideological and political opponents for “custodial interrogation”. Unlike in 1978, however, there is no sign yet of a “flash flood of demands against self-incriminatory interrogation”. If our liberty is to be protected, we the people must raise once again a formidable “flash flood of demands” against custodial interrogation (i.e., in the context of this discussion, arrest solely for the purposes of interrogation) — not only in courts, but also in public discourse — because custodial interrogation inherently, invariably and unavoidably violates our fundamental right against self-incrimination and our right to silence.
Right to silence
What is the right against self-incrimination and the right to silence? Article 20(3) of the Constitution says, without any ifs, buts, caveats, qualifications or restrictions, “No person accused of any offence shall be compelled to be a witness against himself”. Section 161(2) of the Criminal Procedure Code implements the constitutional right against self-incrimination: “[Every person who the police is authorised to examine orally] is bound to answer truly all questions relating to such case put to him by [the police officer legally authorised to examine him], other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture” (emphasis added). In other words, such a person has the right to remain silent to avoid incriminating himself. Our right to silence thus flows from the right against self-incrimination. It is the basis for the ‘rule against involuntary confessions’ in the Indian Evidence Act, 1872. It protects us from the mortification of being forced to join the police investigation against ourselves.
Why do we have the right against self-incrimination and the right to silence? In Selvi v. Karnataka (2010), then Chief Justice of India K.G. Balakrishnan explained that “the underlying rationale [of the right against self-incrimination] broadly corresponds with two objectives — firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the ‘rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts… We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.”
Justice V.R. Krishna Iyer said in Nandini Satpathy vs. P.L. Dani, “Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station… Under the Indian Evidence Act, the Miranda exclusionary rule that custodial interrogations are inherently coercive finds expression (Section 26)… Our purpose is not to sterilise the police but to clothe the accused with his proper right of silence. Article 20(3) is not a paper tiger but a provision to police the police and to silence coerced crimination.”
The ‘Miranda warning’
The 1966 U.S. Supreme Court judgment in Miranda v. Arizona is a locus classicus on the right against self-incrimination under the Fifth Amendment to the U.S. Constitution which is identical in form and substance to India’s Article 20(3). Miranda says, “The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system, and guarantees to the individual the ‘right to remain silent unless he chooses to speak in the unfettered exercise of his own will,’ during a period of custodial interrogation as well as in the courts or during the course of other official investigations” (emphasis added). Miranda lays down strong safeguards for the right against self-incrimination including the now world famous “Miranda warning”.
Why does custodial interrogation violate the right against self-incrimination? In P. Chidambaram v. Directorate of Enforcement (2019), the Supreme Court explained that “grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation” (sic). In this view, the preferred laxative for “disintering” (to borrow an evocative word used by the Supreme Court in State Represented by the CBI v. Anil Sharma in 1997 in a similar context) useful information and concealed material from persons being examined appears to be coercion — fear, pain, discomfort and stress created by deprivation of liberty in brutal conditions in a jail or a police lock-up as well as, in some cases, physical and mental torture. As noted, the Supreme Court found in Nandini Satpathy that custodial interrogations are inherently coercive. The Supreme Court held in Selvi that a core rationale of the right against self-incrimination is the protection of voluntariness. As coercion and voluntariness cannot coexist, it follows that custodial interrogation in Indian prisons necessarily violates the right against self-incrimination and is therefore unconstitutional and illegal.
Convictions of innocent people based on unreliable evidence obtained through coercive custody would have little impact on improving public safety, as the actual wrongdoers would likely still be on the loose. Abjuring custodial interrogation will improve public safety. It will encourage the police to reject self-incrimination as a tool of investigation and improve their ability to find evidence through modern, scientific and humane means. Above all, it will reduce the scope for arbitrary power and strengthen liberty.
G. Mohan Gopal is former Director, National Judicial Academy, and former Director, National Law School of India University, Bangalore.
This article was first published in The Hindu.