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?
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