TAKING away an individual’s liberty is possibly the harshest consequence a State can visit upon an individual. In criminal law, an arrest is justified for ensuring that an accused does not influence or intimidate witnesses, tamper with evidence, repeat the same crime, or run away from justice.
Increasingly, it is also being legitimised simply as a tool for carrying out investigations. Law enforcement agencies routinely oppose anticipatory bail applications, seek remand and justify the need for arrest on the ground that ‘custodial interrogation’ is required to unearth the ‘truth’.
The courts sanctify this assertion. In April 2023, the Supreme Court observed that “the right of custodial interrogation/investigation is also a very important right in favour of the investigating agency to unearth the truth”.
Two critical questions arise from this. First, what is the link between ‘custodial interrogation’ and ‘truth’? That is, what is so compelling about a custodial interrogation that it effectively gets an accused to spill out the ‘truth’ about the occurrence of a crime?
Second, and more importantly, how does custodial interrogation fit with the fundamental right against self-incrimination guaranteed under Article 20(3) of the Constitution of India?
I argue that custodial interrogation is inherently coercive, and legitimisation of the same as a tool for investigation is at odds with the substance and spirit of Article 20(3) right against self-incrimination.
Courts should discourage custodial interrogation where any other grounds of arrest are not made out, and investigative agencies ought to be put to a higher threshold to justify the need for custodial interrogation.
Priorities of the criminal justice system
The objective behind any criminal investigation, evidence gathering and trial is to ascertain the truth regarding the underlying criminal act. Since the responsibility of prosecuting a crime is on the State, it is understood that the State ought to have certain coercive powers that enable its fact-finding exercise.
At the same time, there must be limits on what the State can do to arrive at the truth. Thus, in any criminal justice system, there is a constant tussle between balancing the interests of society in prosecuting offenders vis-a-vis an individual’s liberty. How the balance is struck depends on the priorities and the underlying values of the criminal justice system.
Scholars have identified at least two models of a criminal justice system, i.e., the ‘crime control model’ and the ‘due process model’. In a crime control model, the primary objective is the repression of criminal conduct. The focus is on increasing the efficiency of the criminal process to identify and punish the guilty to safeguard the interest of society.
In contrast, the ‘due process model’ is concerned with protecting individual liberty against the State’s coercive powers and focuses on limiting such power to serve other values of protecting human dignity and liberty.
Some Indian scholars have referred to this distinction in priorities of a criminal justice system as the ‘public order perspective’ and the ‘liberty perspective’, broadly corresponding with the crime control and due process models.
The right against self-incrimination is recognised in both models of criminal justice. However, the reasoning behind the recognition is very different. In the crime control model/public order perspective, the right stems from the need to protect the integrity of the criminal process by avoiding statements obtained through coercion that are likely to be false and unreliable.
In a due process model/liberty perspective, the emphasis is on protecting an individual’s dignity and personal liberty against police brutality and coercion to extract quicker responses. The nature and scope of the protection under this right varies depending on the justice system’s legislative and constitutional priorities.
In my view, as set out below, the origin of Article 20(3) right against self-incrimination in the Indian Constitution is rooted in the due process model, emphasising the liberty and dignity of an individual.
The shield of Article 20(3)
In India, Article 20(3) of the Constitution guarantees a fundamental right against self-incrimination: “No person accused of any offense shall be compelled to be a witness against himself.”
The text of Article 20(3) is very similar to the Fifth Amendment of the US Constitution, which is a manifestation of the due process model and is the source of the famous ‘Miranda warnings’— i.e., the right of a person in custody to right to remain silent and have a lawyer present during an interrogation.
As far back as 1978, the Supreme Court of India in Nandini Satpathy versus P.L. Dani, interpreted the scope of Article 20(3) right with a focus on the individual dignity of an individual.
Justice Krishna Iyer described Article 20(3) as “a human article, a guarantee of dignity and integrity and of inviolability of the person”. The court viewed it as a right of an individual to have “a private enclave where he may lead a free life without overbearing investigatory invasion or even crypto-coercion”. For the first time, the court held that the protection of Article 20(3) applied even at the stage of police investigation and not just at trial.
The same liberty approach is evident from the Supreme Court’s interpretation of Article 20(3) in Selvi versus State of Karnataka. While recognising the reasoning given in both the crime control model and the due process model, the court in Selvi clearly prioritises the justification underlying the due process model.
The court observes that even if the statements obtained through coercion from an accused are true, “[...] the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined.” The court views the right against self-incrimination as a check on police behaviour during an investigation.
The judgments cited here have examined the origins and rationale behind the right and rooted it in the due process model/liberty perspective in the Indian context. Some scholars argue that the right against self-incrimination has been consciously given the status of a fundamental right alongside other rights, such as Articles 19, 21 and 22, to reflect the priorities of the framers of the Indian Constitution in favour of individual liberty.
However, as set out in the next section, the Supreme Court’s dominant jurisprudence prioritises the crime control approach, severely limiting the spirit and substance of the protection under Article 20(3).
Supreme Court’s legitimisation of custodial interrogation
The Supreme Court’s judgment in CBI versus Vikas Mishra exemplifies a worrying trend of courts legitimising custodial interrogation to ‘elicit’ the ‘truth’ from a person. While this case is by no means the first time the court has approved custodial interrogation for investigation, what catches the eye is the Supreme Court’s categorisation of it as an important right in favour of the investigating agency.
The court’s approach towards custodial interrogation can be understood by examining its reasoning in various anticipatory bail cases. In State versus Anil Sharma, the Supreme Court’s reasoning while denying protection from arrest is that custodial interrogation is qualitatively more effective and elicitation-oriented.
The court holds that if an accused does not have a concern of arrest in mind, the interrogations would be reduced to a mere ritual. The same justification has been reaffirmed in several other judgments wherein the court while denying anticipatory bail, held that joining the investigation with a protective umbrella provided by pre-arrest bail will render the exercise of extracting the truth ineffective.
By adopting this reasoning, the court endorses the view that unless there is a threat of arrest in a person's mind, he will not reveal the truth. It is difficult to understand how this does not amount to compelling an accused to be a witness against himself.
The protection against self-incrimination is not only for statements extracted by threat of physical violence but also includes those compelled through atmospheric and psychological pressure.
In India, law enforcement agencies frequently use the threat of arrest to extract statements as dictated. Unfortunately, as a result, arrests for carrying out custodial interrogation have become the starting point of an investigation.
One significant reason that incentivises custodial interrogation is Section 27 of the Indian Evidence Act, 1872 [Section 23(2) Proviso of the new Bhartiya Sakshya Adhiniyam, 2023]. This provision codifies the doctrine of confirmation by subsequent recovery, wherein a part of a statement obtained by the police in custody can later be sought to be admitted as evidence on the ground that it is confirmed by a recovery made in furtherance of the said information.
This results in a race to the bottom where the investigating agencies are tempted to compel information from the accused rather than attempting to improve the quality of the independent evidence gathering. They then seek to admit the part of the statement as being confirmed by a subsequent discovery.
The rampant misuse of Section 27 is judicially acknowledged in India. In fact, the Law Commission of India, in its 152nd report, while recommending a repeal of Section 27 of the Evidence Act, described it as “an escape valve against the prohibition otherwise imposed by [Sections 25 and 26 of the Evidence Act] in relation to confessions made during the custody of a police officer …”, that, “tends to create a desire to resort to its provisions even where the person in custody is not really volunteering the information”.
The structure of the investigative process is such that it incentivises the police to disregard the right against self-incrimination.
The Supreme Court considered and upheld the constitutionality of Section 27 in State of Bombay versus Kathi Kalu Oghad. The primary reason expressed by the court was that if the information is obtained without coercion, its admissibility under Section 27 is constitutionally valid.
The court held that merely because the statement was given in police custody cannot be presumed to have been extracted through coercion. It further observed that it is always open for an accused to show that the information was extracted by compulsion.
In Oghad, the court simply shifted the burden on an accused to prove compulsion in giving a statement that led to the discovery. In doing so, the court failed to engage the nature of compulsion, which may not necessarily be physical but also psychological and extremely difficult to prove for an accused.
The reasoning leads to an absurd scenario wherein any confessional statement to a police officer in custody is inadmissible— due to exclusionary rules of evidence under Sections 26 and 26 in the Evidence Act.
However, the mere recovery— which may be falsely set up and planted— can make a part of it admissible. In my view, Section 27 and the doctrine of confirmation by subsequent recovery need reconsideration on how it fits with the scene of Article 20(3) of the Constitution.
Conclusion
The endorsement by the Supreme Court of the reasoning that without threat of arrest, a person will not reveal the truth is dangerous and fundamentally at odds with the substance and spirit of Article 20(3). It undermines both the presumption of innocence and the right against self-incrimination.
Despite Article 20(3) being rooted in the liberty perspective, courts have continued to hollow out the substance of the right by denying protections from arrest solely on the grounds of the need for custodial interrogation.
By legitimising the use of custodial interrogation as a means of investigation, the courts are effectively allowing compelled testimony extracted by pressurising an accused of continued incarceration.
Section 27 of the Evidence Act codifies an outdated doctrine of evidence that finds its origins in colonial laws. It needs reconsideration as it allows police a backdoor to admit statements extracted through compulsion.
For course correction, the courts must put the investigating agencies to a higher threshold to justify why custodial interrogation is needed. Mere stock assertions should be rejected in favour of personal liberty. Additionally, arrests solely to conduct custodial interrogations should not be permitted.
