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Project on: Protection Against Self-incrimination and Human Right

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Submitted by: - Submitted to:-

Kumari Suman Mrs. Poonam Kumari
LL.M. Assistant professor
1st semester School of law and governance
CUSB1913131019 CUSB
Date: 11/11/2019

Acknowledgement

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I hereby take the opportunity thank Mrs.Poonam Kumari,madam for her consent and the inspiration that
she radiates. Her jovial behavior and ease making attitude eased my complications and the initial doubts
that I had about my potentialities. I also want to thank my friends who helped me a lot in preparing this
project. I have also taken help from several books and websites for doing this. Ultimately, I once again
thank Mrs. Poonam Kumari,Madam who made indelible impact on me which shall go beyond the pages of
this project and reflect in all my endeavors of life.
Hoping Acceptance and Appreciation from you, I hereby submit this project.

Kumari Suman

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 Table of Contents

Contents Page no.

*Title of the proposed study …………………………………………………..…………..04-04

*Objective of study…………………………………………………….…………. ………04-04

*Research design/methodology ………………………………………………………........04-04

*Research Problem ……………………………………………………………….………..04-04

*Research Hypothesis…………………………………………………………….………..05-05

Chapter 1: Introduction .............................................................................................................06-07

Chapter 2: Right against Self –incrimination India and Human Right...................................08-08

Chapter 3.Right against Self-incrimination in global concern ……………………..............09-09

Chapter 4.Constitutional Provision...........................................................................................10-18

Chapter5.Judiacial Approach towards Article 20(3)................................................................19-21

Chapter 6.Narco- Analysis Test vis-à-vis Self-Incrimination ...............................................22-26

Chapter 7.DNA Testing and Article 20(3) ...............................................................................27-30

Chapter 8.The Changing face Of Self- incriminatory evidence and Social Media...............31 -36

Chapter 9. Conclusion ................................................................................... ………………...37-38

Bibliography ..............................................................................................................................39-39

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 1.Title of the proposed study
o Protection against Self-Incrimination and Human Right

2.Objectives of the Study

o The study was geared to achieve the following objectives:-
General Objectives
1. To study the concept of right against self-incrimination in India
2. To study the concept of right of self-incrimination in global concern

Specific Objectives
1.To deal with the constitutional prospects of right against self-incrimination.
2.To analytic synthesis of human right as right of self –incrimination.

4.Research design/methodology

In accordance with the objectives of the present study, qualitative research design has been
adopted. Qualitative Research is a research, as we all know, based on the principles or the
propositions made by study based on analysis of the legal, social , global aspects of the objective.
It is more based on the sources like books of the library, and through resources collected through
access to various websites. For the purpose of the Research Project, the Researcher has collected
relevant materials from books on Criminal Law and Justice , Indian Constitution ,Human Right
and also from various websites.

5. Research Problems

 What is the right against self –incrimination in India?

 What is the co-relation of right against self- incrimination with human right?
 What is the changing face of self –incriminatory evidence and social media?

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6. Research Hypothesis

The following hypotheses would be taken account of in this study and they have been examined in the
course of discussion. A conclusion has been drawn to assess whether the hypotheses proposed were true to
their extent of statement:

• The right against self-incrimination is a boon for the person under article20(3) of the Indian
constitution.

• The recent measure need be more appropriate regarding changing face of self–incrimination and
social media.

• The fundamental right resembles to human right in India in way to provide right against self -
incrimination.

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 CHAPTER 1

Introduction

The Buddhist doctrine of non-violence in deed and thought says Nagendra Singh, "is a humanitarian
doctrine par excellence, dating back to the third century B.c." Jainism too contained similar doctrines.
According to the Gita, "he who has no ill will to any being, who is friendly and compassionate, who is free
from egoism and self sense and who is even-minded in pain and pleiasure and patient" is dear to God. It
also says that divinity in humans is represented by the virtues of non-violence,truth, freedom from anger,
renunciation, aversion to fault-finding,compassion to living being:;, freedom from covetousness,
gentleness,modesty and steadiness -the qualities that a good human being ought to have. The Supreme
Court of lndia recognises these fundamental rights as 'Natural Rights' or 'Human Rights'. While referring
to the fundamental rights contained in Part Ill of the Constitution, then Chief Justice of the Supreme Court,
in Keshavananda Bharati v. State of Kerala,"observed, "I am unable to hold these provisions to show that
rights are not natural or inalienable rights. "The Universal Declaration of Human Rights may not be alegally
binding instrument but it shows how India understood the nature of human rights at the time the Constitution
was adopted”

The right against self-incrimination finds its earliest embodiment in the

medieval law of the Roman church in the Latin maxim Nemon tenetur seipsum accusare‘ which means
that „No man is obliged to accuse himself‟. The right gradually evolved in common law through protests
against the inquisitorial and manifestly unjust methods of interrogation of accused persons, back in the
middles ages in England.2 This right is one of the fundamental canons of British System of criminal
jurisprudence which the United States of America adopted from the British legal system and incorporated
it in their Constitution as “no person shall be compelled in any case to be a witness against himself”3, and
thereafter in the Indian Constitution.4

.
1 Translated from the Latin maxim “no man is bound to betray himself”.

2 180th Report of the Law Commission of India, Article 20(3) the Constitution of India and the Right to Silence,

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 3, (2002).3 Fifth Amendment to the Constitution of the United States of America, 1789.

4 Jain, M. P.- Indian Constitutional Law, 5th edition, Reprint 2007, pp. 1064-1065.

The Indian Constitution5 provides for protection to an accused against self- incrimination under
compulsion through Article 20(3) – „No person accused of an offence shall be compelled to be a witness
against himself the question of what evidence was accorded protection, and apparent conflicts between
Article 20(3) and‟. In 1978, under the Constitution (Fourty- fourth Amendment) Act, 1978,6 the Article
20 of the Constitution of India was granted a non- derogable status i.e. the state has no legal basis, even in
a state of emergency, to refuse to honour this right. This is a testimony to the importance it has been
accorded in our Constitution.7

A certain ambiguity provisions of the Indian Evidence Act, 1872 have prevailed in our constitution.8 This
resulted in judgements with apparent imbalance between the right against self-incrimination in Article
20(3) and the necessity to facilitate collection of evidence by investigating trial agencies. These
judgements were referred to the Apex Court, which clubbed them and referred them to an eleven-judge
bench. The resultant judgement is the landmark judgment of State of Bombay v. Kathi Kalu Oghad9
which has made a defining contribution to the case law on the matter as it stands today.

The right to silence has various facets. One is that the burden is on the State or rather the prosecution to
prove that the accused is guilty. Another is that an accused is presumed to be innocent till he is proved to
be guilty. A third is the right of the accused against self incrimination, namely, the right to be silent and
that he cannot be compelled to incriminate himself. There are also exceptions to the rule. An accused can
be compelled to submit to investigation by allowing his photographs taken, voice recorded, his blood
sample tested, his hair or other bodily material used for DNA testing etc

The Supreme Court has made it clear that in order to claim this immunity from being compelled to make
a self-incriminating statement, it is necessary that a formal accusation must have been made against the
person at the time of interrogation. He cannot claim the immunity at some general inquiry or investigation
on the ground that his statement may at some later stage lead to an accusation.

5 This right of protection against self-incrimination in Indian Constitution is available only to the accused and

6 Sec. 40 of the Constitution (Forty-fourth Amendment) Act, 1978.

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 7 Sections 5, 6 and 342 of the Indian Oaths Act, 1969 are based on this right .

Chapter 2

Right against Self-incrimination in India and human right

According to Black’s Law Dictionary, a declaration or an act that occurs during an investigation where a
person or witness incriminates themselves either explicitly or implicitly is known as self-incrimination. In
simpler words, it is the act of implicating or exposing one’s own self to criminal prosecution. The Indian
Constitution provides immunity to an accused against self-incrimination under Article 20(3) – ‘No person
accused of an offence shall be compelled to be a witness against himself’. It is based on the legal
maxim “nemo teneteur prodre accussare seipsum”, which means “No man is obliged to be a witness
against himself.”

The Supreme Court widened the scope of this immunity by interpreting the word ‘witness’ to include oral
as well as documentary evidence so that no person can be compelled to be a witness to support a prosecution
against himself. This prohibition cannot be applied in cases where an object or document is searched or
seized from the possession of the accused. For the same reason, the clause does not bar the medical
examination of the accused or the obtaining of thumb-impression or specimen signature from him. This
immunity is available only against criminal proceedings. The Supreme Court has made it clear that in order
to claim this immunity from being compelled to make a self-incriminating statement, it is necessary that a
formal accusation must have been made against the person at the time of interrogation. He cannot claim the
immunity at some general inquiry or investigation on the ground that his statement may at some later stage
lead to an accusation. The compulsory administration of the narco-analysis technique amounts to
‘testimonial compulsion’ and thereby triggers the protection of Article 20(3) of the Constitution.

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 Chapter -3

Right against Self-incrimination in global concern

U.S.A.

The fifth amendment of the U.S. Constitution provides that- ‘No person shall be compelled in any criminal
case, to be a witness against himself’

After being judicially interpreted in many cases, the above privilege has been given a wide connotation.
This privilege against self-incrimination can be applied to witnesses as well as parties in both civil or
criminal proceedings. It covers oral and documentary evidence and extends to all disclosures including
answers which by themselves support a criminal conviction or furnish a link in the chain of evidence needed
for a conviction.

Britain

Under Common Law, it is a basic principle that a person accused of any offence shall not be compelled to
discover documents or objects which incriminate himself. No witness, whether party or stranger is, except
in a few cases, compellable to answer any question or to produce any document the tendency of which is
to expose the witness (or the spouse of the witness), to any criminal charge, penalty or forfeiture. The
purpose of this privilege is to encourage people to come forward with evidence in courts of justice,
protecting them, as far as possible, from injury, or needless annoyance, in consequence of doing so.

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 Chapter 4

Constitutional Provision
The Rationale of Article 20(3)

―The exercise of the power to extract answers begets a forgetfulness of the just limitations of
that power.‖11

The right against self-incrimination was afforded by the courts in consonance with the principles
of an adversarial system of jurisprudence under influence of human right .The Human Rights are
those rights which are essential for the protection and maintenance of dignity of individuals and
create conditions in which every human being can develop his personality to the fullest extent.
Human Rights are the basic rights which every human being inherits the moment one is conceived
in the mother’s womb. Nelson Mandela said ”To deny people their human right is to challenge their
very humanity”In this way right against self -incrimination is very significant to be discuss.

The mid-18th and mid-19th centuries‘ criminal trials saw the origins of this privilege and other
tools to the accused such as the beyond- reasonable-doubt‘ and burden of proof on the prosecution‘
doctrines which equipped him with political liberties that could be used to defend himself in trial
against the State, in a way minimizing there dative disadvantage which the individual defendants
would

10
 8 State of Uttar Pradesh v. Deomen Upadhyaya, AIR 1960 SC 1125.

9 AIR 1961 SC1808.

10 AIR 1954 SC300.

11Wigmore,Evidence2264(2ndedn,1923)ascitedinFredInbau,―Self-Incrimination:whatcanaAccused Person be compelled to do?”, 28(2) Journal of

Criminal Law and Criminology 261, 264 (1937).

Face , as compared to the vast trial resources of the State. 12

The rationale underlying the judicial provision against testimonial compulsion was well recognized
long before our Constitution came into existence. The cornerstone of the protection against self-
incrimination is best stated by the Court in Saunders v. United Kingdom.13 This case explained that
the right lies for the protection of the accused by the improper compulsion of the authorities, thereby
contributing to the avoidance of the miscarriages of justice. 14

It may be says that, ethics and reliability are the two pillars of the right against self- incrimination. The
ethical rationale for voluntariness addresses the need to protect the accused from brutalization and torture
by investigation agencies; the rationale is that if involuntary statements were readily given weightage
during trial, the investigators would have a strong incentive to compel such statements, often through
methods involving coercion, threats, inducement or deception.15 Even if such involuntary statements are
proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity
and bodily integrity of the person being examined.16 This situation is considered as a violation of basic
human rights of life and limb. Hence, the right against self-incrimination serves as a vital safeguard against
torture and other ‗third-degree methods‘ that could be used to elicit information. It serves as a check on
police behaviour during the course of investigation. The exclusion of compelled testimony is important
or investigators will be more inclined to extract information through such compulsion routinely rather
than through the more difficult path of collecting independent evidence. 17

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 12GautamSwarup,―NarcoAnalysisandArticle20(3)o ftheConstitutionofIndia:BlendingtheMuch Awaited” (2009),

13 (1997) 23 EHRR 313.

14 Ibid.

15 Alschuler, Albert W- A Peculiar Privilege in Historical Perspective:

16 Selvi v. State of Karnataka, (2010) 7 SCC 263.

17 Ibid.

Another concern behind the right against self- incrimination seems to be protecting a wholly or partially
innocent person from making a false statement under stress and thereby needlessly reinforcing the needle
of suspicion upon him or her. Similarly for the guilty, the protection affords a shield from aggravating his
or her offense by misrepresentation or concealment of evidence. The accused is also shielded from
reading of motives into what evidence he or she might give.

There were several contrary views among the makers of the Constitution, but it was widely accepted by
those who devoted serious thought to it, that the easy path of procuring evidence, oral or documentary, by
compulsion from an accused would do more harm than good to the administration of justice; it was felt
that existence of this path would tend to discourage investigators or prosecution to indulge in a diligent
search for reliable independent evidence and also dissuade them to exercise care while sifting through
available evidence for the ascertainment of truth.18 If law permitted evidence to be obtained by coercion,
investigators would never take up the onus of partaking in laborious investigation and prolonged
examination of other associated persons, material and documents. It has been rightly said that the absence
of the privilege against self-incrimination would incentivize those in charge of theen forcement of the
law‗to sit comfortable in the shade rubbing red pepper in to the devil‘s eye rather than go about in the sun
hunting up evidence.‘19

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The privilege also serves the goal of reliability.20 When a person suspected or accused of a crime is
compelled to testify on his/ her own behalf through methods involving coercion, threats or inducements
during the investigative stage, there is a higher likelihood of such testimony being false or distorted out of
sheer despair, anxiety and fear. Their mental status may serve as an impetus to offer evidence in order to
avoid the unpleasantness of the current situation and complications that follow. Thus, involuntary
statements from the accused may amount to false testimony which is likely to mislead the judge and the
prosecutor, thereby impeding and vitiating the process of trial, and potentially leading to a miscarriage of
justice with erroneous and unjust convictions.

18 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.

19 Ibid.

20 Michigan v. Tucker, 417 US 433 (1974).

Even during the investigative stage, false statements are likely to cause delays and obstructions in
the investigative efforts. Therefore, the privilege ensures that investigation agencies do not take the
easy path of ‗involuntary confessions‘ to supplant the diligent route of meaningful investigations
and that the reliability of the testimony presented for trial is of a high order.

The Constitutional Provision- Article 20(3)

The provision relating to the self-incrimination is contained under Article 20(3) of the Indian
Constitution which reads as- “No person accused of any offence shall be compelled to be a witness
against himself.” The characteristics features of this provision are that the accused need not to make
any statement against his will as it is for the prosecution to establish his guilt beyond all reasonable
doubt and the accused is presumed to be innocent till proved guilty.

This provision contains the following ingredients:

• It is a right available to a person “accused of an offence21”.

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 • It is a protection against―compulsion to be a witness‖.

• It is a protection against such ―compulsion resulting in his giving evidence

―against himself

• Person accused of an offence

The privilege under this clause is only available to an accused i.e., a person against whom a formal
accusation relating to the commission of an offence has been levelled which in the normal course
may result in the prosecution. It is however not necessary, to avail the privilege, that the actual trial
or enquiry should have commenced before the court or tribunal. Thus a person against whom the
F.I.R. has been recorded by the police and investigation ordered by the Magistrate, can claim the Commented [u1]:

benefit of the protection. In order to avail the protection available against self-incrimination, the
person claiming the same should be one accused of an offence at the time when he makes the
statement. This means a person against whom a formal accusation relating to commission of an
offence has been levelled and although actual trial may not have commenced yet, but may in normal
course result in prosecution.22

Thus in M. P. Sharma v. Satish Chandra23, it was held that a person, whose name was mentioned as
an accused in the first information report by the police investigation was ordered by the Magistrate,
could claim the protection of this guarantee. The privilege in Article 20(3) is undoubtedly available
at the trial stage but is also available at the pre-trial stage i.e. during police investigation if the person
concerned can be regarded as an accused. Even if his name is not mentioned in the FIR as an accused,
it will not take him out of the category. In America the right against self-incrimination is not only
available to accused but also to the witness, but not under Indian laws. But in Nandini Satpathey v.
P. L. Dani24

It was subsequently held that, the right extends to witness and accused alike, that the expression
'accused of any offence‘, must mean formally accused in ―present not in future‖, that it applies at
every stage at which furnishing of information and collection of material stakes Nandini Satpathy
Former Chief Minister of Orissa against whom a case had been registered under the Prevention of
Corruption Act, was asked to appear before The Deputy Superintendent of Police (Vigilance) for
questioning. The Police wanted to interrogate her by giving her a string of questions in writing. She

14
 refused to answer the questionnaire, on the grounds that it was a violation of her fundamental right
against self-incrimination. place, that the privilege extends not only to the deployment of the
information obtained as evidence in a criminal prosecution, but to the extraction of the information
itself.

21 Where evidence oral or circumstantial points to the guilt of a person and he is taken in custody and interrogated on that basis, he becomes a person
accused of an offence.

22 Raja Narayanlal Bansilal vs Maneck Phiroz Mistry, AIR 1961 SC 29.

23 AIR 1954 SC 300.

24 AIR 1978 SC 1025,

In Balasaheb v. State of Maharashtra,25 Court held that, a witness in a police case, who is also an
accused in complaint case about the same incident, cannot claim absolute immunity from testifying
in the police case on ground of Article 20(3). He may, however, refuse to answer those questions
which tend to incriminate him.

• Compulsion to be a witness

The application of Narco analysis test involves the fundamental question pertaining to judicial
matters and also to Human Rights. The legal position of applying this technique as an investigative
aid raises genuine issues like encroachment of an individual‘s rights, liberties and freedom. In case
of State Bombay v. Kathikalu,26it must be shown that the accused was compelled to make statement
likely to be incriminative of himself. Compulsion means duress, which includes threatening, beating
or imprisonment of wife, parent or child of person. Thus where the accused makes a confession
without any inducement, threat or promise Article 20(3) does not apply.
The Court in State (Delhi Administration) v. Jagjit Singh,27 held that once an accused is granted
pardon under section 306 of Criminal Procedure Code28, he ceases to be an accused

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 25 (2011) 1 SCC 364.

26 AIR 1961 SC 1808.

27 AIR 1989 SC 598.

28 Section 306 of the Code of Criminal Procedure, 1973 Tender of pardon to accomplish.-

A view to obtaining the evidence of any person supposed to have been directly or indirectly
concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a
Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence,
and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or
trial, may tender a pardon to such person or condition of his making a full and true disclosure of the
whole of the circumstances within his knowledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the commission thereof.

This section applies to-

• any offence triable exclusively by the Court of Session or by the Court of a Special
Judge appointed under the Criminal law Amendment Act, 1952(46 of1952);
• any offence punishable with imprisonment which may extend to seven years or
with a more severe sentence.
Every Magistrate who tenders a pardon under sub-section (1) shall record-
• his reasons for so doing;
• whether the tender was or was not accepted by the person to whom it was made,
and shall, on application made by the accused, furnish him with a copy of such record free
of cost.Every person accepting a tender of pardon made under sub-section (1)-

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 • shall be examined as a witness in the Court of the Magistrate taking cognizance of the
offence and in the subsequent trial, if any;
• shall, unless he is already on bail, be detained in custody until the termination of the trial.
Where a person has accepted a tender of pardon made under sub-section (1) and has been
examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without
making any further inquiry in the case, and becomes a witness for prosecution and his evidence, as
approver cannot be used against him in other cases and he is protected under proviso to Section
132 of Indian Evidence Act.29

29 Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution

The proviso to Section 132 of Indian Evidence Act clearly protect a witness from being prosecuted
as the basis of the answers given by him in a criminal proceeding which tend to incriminate him
directly or indirectly.

Compulsion resulting in his giving evidence “against himself”

The right to silence has various facets. One is that the burden is on the State or rather the prosecution to
prove that the accused is guilty. Another is that an accused is presumed to be innocent till he is proved to
be guilty beyond reasonable doubt. A third is the right of the accused against self-incrimination, namely,
the right to be silent and that he cannot be compelled to incriminate himself. There are also exceptions to
the rule. An accused can be compelled to submit to investigation by allowing his photographs taken, voice
recorded, his blood sample tested, his hair or other bodily material used for DNA testing etc. Compulsion
is duress; compulsion has to be a physical objective act and not the state of mind of the person making the
statement, except where the mind has been so conditioned by some extraneous process as to render the
making of the statement involuntary and, therefore, extorted. The mere asking by a police officer
investigating a crime against a certain individual to do a certain thing is not within the meaning of Article
20(3) of the Constitution.30 Here the accused may waive his right by entering into the witness box or by
giving evidence voluntarily on request. But for maintaining this provision to attract the right given under
Article 20 (3) where accused is compelled to make or give statement against him which amount to
incrimination. In Amrit Singh v. State of Punjab,31 the accused was charged for rape and murder of an
eight year old girl. When the body of the child was recovered, some strands of hair were found in the
closed fist of the child. The police wanted to analyse the hair commit it for trial-

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 • to the Court of Session if the offence is triable exclusively by that Court or if
the Magistrate taking cognizance is the Chief Judicial Magistrate;

• to a Court of Special Judge appointed under the Criminal Law Amendment

Act, 1952, (46 of 1952) if the offence is triable exclusively by that Court;

30 Supra note 4 at 1066.

31 AIR 2007 SC 132.

• in any other case, make over the case to the Chief Judicial Magistrate who shall try
the case himself.
found in the fist of the victim with that of hair of accused, but he refused to give the hair sample. The
Supreme Court observed that the accused had protection against self-incrimination not to give hair. But
here in such cases if court started to consider this type of right of self-incrimination than this right might
be misuse by many accused though being not reasonable to allow them such rights.

A very interesting situation arose in X v. Y,32 in which the Delhi High Court in divorce proceedings for
adultery, allowed the paternity test of a preserved foetus, holding that the foetus is no longer a part of body
of the wife and she is not subjected to any compulsion. The privilege against self-incrimination is not
applicable to search and seizure of documents or any other object under a search warrant. In V.S. Kuttan
Pillai v. Ramakrishnan & Others,33 the court held that, a general search warrant may be issued to procure
the document or thing and it can be recovered from any person who may be ultimately found in possession
of it and it was not known to the Court that the person from whose possession it was found was in

18
possession of it. Article 20(3) is also not violated by compelling an accused to stand up and show his face
for purpose of identification for it does not amount to giving of testimony as the physical facts which are
noticed speak for themselves. He can also be ordered to disclose any scar or mark on his body for purpose
of identification.

32 AIR 2002 Del. 217, the wife discharged the foetus and its slides were preserved in the hospital. During divorce proceedings initiated by the husband on
grounds of adultery, the husband made an application for DNA test with respect to the said slides. The Delhi High court held that granting permission for the
said test would not amount to compelling wife to submit to any test as the discharged foetus was no longer a part of her body

33 AIR 1980 SC185.

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 Chapter 5

Judicial Approach towards Article 20(3)

The case law on Article 20(3) has been through an interesting journey: from a very broad interpretation
in M.P. Sharma v. Satish Sharma34leading to contradictory conclusions to a much chiselled interpretation
in State of Bombey v. Kathi Kalu Oghad35. Oghad was a landmark judgment of eleven judges, one of the
largest benches in the history of Indian judiciary. It made a very significant contribution in evolving the
case law on Article 20(3) by its interpretation of the right against self-incrimination by redefining what
constituted 'being a witness against himself' taking M.P. Sharma as precedent. The constitutionality of a
search or seizure of documents from a person against whom an FIR had been lodged with the police In
M.P. Sharma; this case, taking a broad view of Article 20(3) held that the protection applied primarily
to testimonial compulsion‘.36
It therefore extrapolated protection from oral evidence as applicable till then, to written statements as well,
so as not to limit Article 20(3) and rob it of its substantial purpose or to miss the substance for the sound‘.37
Justice Jagannadha das held that to be a witness‘ was equivalent to furnishing evidence which not only
constituted oral testimony but also non- verbal forms of conduct such as production of documents or of a
thing or in other modes.38

witness violating Article 20(3), prima facie rendering Section 73 of the Indian Evidence Act void. On the
other hand, it was held in another case,41 that taking of handwriting specimen or thumb impression under
a court order did not violate Article 20(3).

34 AIR 1954 SC300.

35 AIR 1961 SC 1808.

36 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.

37Ibid.

38Ibid.

39 See H.M. Seervai- Constitutional Law of India, Universal Law Publishing Co., 4th edn. 1996, Vol. II, pp. 1063-1064.

40 Farid Ahmed v. State, AIR 1960 Cal 32.

41 Re: Sheik Mohd. Hussain, AIR 1957 Mad 47.

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The propositions laid down in M.P. Sharma were considered to be too widely stated and Oghad made an

attempt to re-interpret the same with more clarity42

It essentially examined the compatibility between Article 20(3), Section 73 of the Indian Evidence Act,
and Sections 5 and 6 of the Identification of Prisoner‘s Act, as the case law on Article 20(3) prevalent
since M.P. Sharma was seen to nullify the other statutes, creating a judicial gridlock. The liberality in
that case may have gone beyond the original intent and purpose of Article20(3).
While upholding M.P. Sharma on inclusion of written testimony, in addition to oral for protection, the
instant case made an important departure from the former. The judgment in the instant case approached
the matter by first examining the definition of the expression to be a witness‘ in Article 20(3). It sought
to establish a distinction between testimonial and physical evidence, and held that the act of providing
test imonial evidence alone constitutes to be a witness‘. Justice B. P. Sinha opined that the phrase to be a
witness‘ must be restricted to mean imparting knowledge in respect of relevant facts by means of oral
statements or statements in writing by a person who has personal knowledge of the facts to be
communicated to a court or to a person holding an enquiry or investigation on matters relevant to the
subject under inquiry.‘43
Self-incrimination was declared as the conveying of information that was based upon the personal
knowledge of a person giving that information. It was ruled that personal testimony‘ was to depend upon
volition. An accused had the choice of making the statement or refusing to make the same. 44 So, by
limiting the scope of evidence qualifying the definition of to be a witness‘, Oghad brought much clarity
on the interpretation of Article20(3).The judgment perceived a witness to be one who gave oral or
written statements which by themselves had a tendency to incriminate the accused. All other kinds of
physical, biometric, forensic and material evidence were not considered a personal testimony and did not
invoke the right against self-incrimination. Their purpose was seen as only to lend reliability to other
evidence, and efforts to conceal their true nature would not change their intrinsic character‘.
Consequently, handwriting samples, fingerprints, thumb-prints, palm-prints, footprints or signatures,
were declared as material evidence, not incriminating the accused and falling outside the scope of
Article 20(3), thereby subjecting them to compulsion in the due process of law.45 The position is that a
witness‘ must communicate facts with his personal knowledge echoes throughout the opinion on the
controlling precedent M. P. Sharma. By establishing this benchmark for the distinction between
testimonial and material/physical evidence, the judgment amended the interpretation given by its
precedent.

42 Supra note 17.

21
 43Ibid.

44Ibid.

Oghad was an extremely noteworthy judgment as it helped resolve conflicts among judgments with its
interpretation. The court could now direct an accused to produce or give his handwriting exemplar,
under Section 73,46 without invoking Article 20(3).47 Several subsequent cases were facilitated by the
case law thus established by Oghad which helped resolve apparent conflict among different statutes and
interpretations. A case in point is Smt. Selvi v. State of Karnataka48which involved the use of advanced
scientific methods for collection of evidence for criminal investigations. It heavily drew upon Oghad,
adding another new dimension to its interpretation. In Selvi, the constitutionality of narco-analysis, lie-
detector test and analysis of brain waves (Brain Electrical Activated Profiling (BEAP) test) was
questioned. The three judge bench ruled that the compulsory administration of such tests should be
banned as forcible intrusion in to the mind of the accused not only violated

Article 20(3) but also intruded on the privacy and liberty of an individual, thus violating Article 21 of
the Indian Constitution.49Oghad seems to have foreseen such a situation when Justice Sinha stated that if
the mind of the subject had been conditioned such that a confession was involuntary, it would be
considered coercion, and hence in violation of Article 20(3). 50 At the same time it is perceived by the
author that Oghad, in its re- interpretation, may not have sufficiently addressed all situations thrown up
by technology driven social change.

While Oghad rightly disallowed protection to material evidence which in itself did not incriminate the
accused in itself such as fingerprints, handwriting samples etc., it actively excluded a large space of
evidence, much of what could potentially be self-incriminatory and could have been considered to be
worthy of protection under the original spirit of Article 20(3).

This is perceived by the author as its principle vulnerability especially in view of the changing nature of
self-incriminatory evidence in the face of technological advancement.

45Ibid.
46 Section 73, Indian Evidence Act, 1872.
47 State of Delhi v. Pali Ram, AIR 1979 SC 14.
48 (2010) 7 SCC 263

22
 49 Ibid.
50 Supra note 17.
51 AIR 2013 SC 1132.

Chapter 6
Narco-Analysis Test vis-à-vis Self-Incrimination

The admissibility of science in a court of law demands that three major requirements be met: namely
validity, reliability and legality.52 The same must be used to analyse the science of narco analysis and its
prospective admissibility in our courts. Validity demands that the evidence procured be the result of a
scientifically validated method and that it measures all that it claims to measure with a reasonable amount
of accuracy. Reliability on the other hand is an indication of consistency in the accuracy of the results
procured, the success rate of the tests conducted and other consequences of the same.

M. P. Sharma v. Satish Chandra53gave this right a broad interpretation and held that it is not possible to
limit this provision to oral evidence; the Supreme Court here brought in various other forms of evidence
such as ‗production of a thing‘ and evidence by other modes within the ambit of this Article. Scientific
evidence has not been accorded its due place in our country owing to the pace of developments in the
field. Thus even though M. P. Sharma case attempted to answer all major questions posed to the Self-
incrimination Doctrine in its current times, advancements in forensic science quickly put forth new
challenges to it. Kalu Kathi Oghad54answered the question of compelling the accused to give specimen
handwriting, thumb impressions and signatures stated that the right of the accused against self-
incrimination is not violated in such cases since ―self-incrimination must mean conveying information
based upon the personal knowledge of the person giving the information” and covers only “personal
testimony which must depend upon his volition”. Here the court restricted the mean in gof the phrase―to
be witness”to furnishing evidence in the formo foral or written statement and not large enough to include
impressions and specimen signatures

23
52 Dr. Ramanadham Memorial Meeting on “Narco Analysis, Torture and Democratic Rights” conducted by the Peoples‘ Union for Democratic Rights, p.12.

53 AIR 1954 SC 300.

54 AIR 1961 SC 1808.

The leading case that has guided precedent in our country with respect to narco-tests has been
U.S. v. Solomon55where the United Sates Supreme Court held used expert witnesses to establish that
adequate safeguarding against the unreliability of narco-tests was possible; on the whole however,
while narco-tests were held as unreliable, their acceptance as an investigative technique was upheld.
The question of compulsion was answered by the Indian Supreme Court in Dinesh Dalmia v. State
of Maharashtra56wherein it said that consent played no role in court-ordered narco-tests. This
decision was however based on a technical irregularity. If this decision is to be upheld as valid, then
it can be considered a valuable landmark in the course of the self-incrimination doctrine in India;
this case however said that while subjecting a person to narco-tests was compulsive, the revelations
made are entirely voluntary; as such it has been held to widespread criticism by the proponents of
this right. The most recent development as far as consent of the accused for conducting narco-
analysis has been in the form of a stay order by the Supreme Court in November 2006 on narco-
analysis being carried on K.Venkateshwar Rao in a case involving Krushi Cooperative Urban
Bank.57 This is considered a welcome move; however consent implies informed consent‘. The person
giving this consent must not only be made aware of his right against incriminatory evidence, but he
must also in cases of such consent be made aware of the procedure to be carried on him and the
consequences of such procedures. 58 These two conflicting judgments however, leave us in hazy
ground with respect to the role of consent in conducting such tests. Such a vital component of the
privilege against Self-incrimination demands better scrutiny by the courts. A previous judgment of
the court in the case of Nandini Satpathy v. P.L.Dani59places any form of duress, physical or mental
under the definition of compelled testimony‘ and holds it as violative of the privilege. The aspect of

24
 narco analysis, keeping in mind the compelling interest of the state in security and order, cannot be
put away without further explanation.

55 753 F.2d.1522 (9th Cir. 1985).

56 Cri LJ (2006) 2401.

57 Supra note 51 at 4.

58 Ibid.

59 AIR 1978 SC 1025.

The drafting committee on―National Criminal Justice System Policy ‖headed by Prof. N.R. Madhavanan
has recommended various measures to be taken by the government to amend various parts of the Criminal
Procedural Code for effective management of the overall science and technology needs of the criminal
justice system.60 Section 53 of the Code of Criminal Procedure, 197361 was amended to allow medical
examination of an accused in the interests of justice, “as maybe reasonably necessary”. Narco-tests may
be considered reasonable under such circumstances as terrorist attacks and other grave cases. A question
relates to how the graveness of such an issue is to be decided; it is, under the said Section, the discretion
of the prescribed police officers to make such a move and as evident is open to abuse. Section 45 of the
Indian Evidence Act, 187262 affords, in the interests of justice the opinions of experts as admissible in the
court; it is however silent on the complicated question of narco-tests. This complication arises from the
fact that the result of a narco-test is submitted to the court in the form of a report by the expert doctor
under whose supervision such a test is conducted.
Offence of such a nature and alleged to have been committed under such circumstances that there are
reasonable grounds for believing that an examination of this person will afford evidence as to the
commission of this offence, it shall be lawful for a registered medical practitioner, acting at the request of
the police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid
and under his direction, to make such an examination of the person as reasonably necessary in order to
ascertain the facts which may afford suc60 Para 7.2.4 and para 7.2.5 propose amendments to the Indian
Evidence Act to make scientific evidence admissible as “substantive evidence rather than opinion
evidence”.The problem therefore, is threefold. First relates to the compulsive subjugation of a person to

25
narco-tests; second is relating to the right extending to all stages of investigation and not merely to the
trial stage. The third is relating to the form in which the results of such tests are submitted to the court.

61 Section 53 reads as – “Examination of a Person- When a person is arrested on a charge of committing an the opinions upon that point of persons specially
skilled in such foreign law, science or art, [or in questions as to identity of handwriting], [or finger impressions] are relevantfacts.‖

62 Section 45 of the Indian Evidence Act, 1872 reads as: “Opinions of experts.- When the Court has to form an opinion upon a point of foreign law or of
science or art, or as identity of handwriting, [or finger impressions],

An answer could be sought by considering, that narco-tests, like other forms of scientific evidence are
alternatives to confessions and likewise are meant to bypass the privilege guaranteed against self-
incrimination. Going strictly by precedent, no conclusive answer can be reached to either of the question
posed above; however as Cardozo. J has said63“the right against Self-incrimination is a right that might
be lost and justice still be done.”

It is argued64 that Narco-Tests satisfy all the requirements of the UN definition of torture65. If this argument
is accepted, there can be no question as to the admissibility of Narco-tests in a court of law; the situation
however is different owing to the counter-argument that it is infact a substitute of third degree methods of
extracting information from an accused. Kishore Singh State of Rajasthan66prescribed humane treatment
of an accused as far as possible unless absolutely necessary as long as he was in police custody.

The case of Gobind Singh v. State of Madhya Pradesh67ruled on the ‗Right to Privacy‘ of an individual
as extending to the physical and mental state of the individual. Further developments in this area 68 have
clearly pointed out as ultra vires the authority of the State to forcibly expose the parts of an individual‘s
life that he wishes to keep to himself within his private sphere. An approach to the issue of Narco analysis
guided by the sole motives of individual liberties would therefore hold the same to be in contravention of
the rights guaranteed under Articles 20(3) and 2169 of the Constitution of India.

63 Palko v. Connecticut, 302 U.S, 319,325 (1937).

26
 64 Supra note 51 at 25-26.

65 Article 1 of the U N Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 26th June 1987

66AIR 1981 SC 265.

67 AIR 1975 SC 1378. “…they sought to protect individuals in their belief, thought, their emotions and their sensation. Therefore they must be deemed
to have conferred upon the individual as against the government, a sphere where he should be left alone.”

68 See M.P.Sharma v. Satish Chandra AIR 1954 SC 300; PUCL v. Union of India 1997 (1) SCC 301.

69 Article 21 of the Constitution of India reads as: “Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty
except according to procedure established by law.‖

In Selvi v. State of Karnataka70, the Supreme Court rejected the High Court‘s reliance on the supposed
utility, reliability and validity of narco analysis test and other tests as methods of criminal investigation.
First, the Court found that forcing a subject to undergo narco-analysis,

brain-mapping, or polygraph tests itself amounted to the requisite compulsion, regardless of the lack of
physical harm done to administer the test or the nature of the answers given during the tests. Secondly, the
Court found that since the answers given during the administration of the test are not consciously and
voluntarily given, and since an individual does not have the ability to decide whether or not to answer a
given question, the results from all three tests amount to the requisite compelled testimony to violate
Article 20(3). The Supreme Court found that narco-analysis violated individual right to privacy and
amounted to cruel, inhuman or degrading treatment.

27
70 AIR 2010 SC 1974.

Chapter 7
DNA Testing and Article 20(3)

The introduction of the DNA technology has posed serious challenge to some legal and functional
rights of an individual such as―Right to privacy‖, ―Right against Self- incrimination‖. And
this is the most important reason why courts sometimes are reluctant in accepting the evidence based
on DNA technology. Right to Privacy has been included under Right to Life and Personal liberty or
Article 21 of the Indian Constitution, and Article 20(3) provides Right against Self- Incrimination
which protects an accused person in criminal cases from providing evidences against himself or
evidence which can make him guilty. But it has been held by the Supreme Court on several occasions
that Right to Life and Personal Liberty is not an absolute Right. In Govind Singh v. State of Madhya
Pradesh,71 Supreme Court held that a fundamental right must be subject to restriction on the basis
of compelling public interest. In another case Kharak Singh v. State of Utter Pradesh,72 Supreme
Court held that Right to privacy is not a guaranteed right under our Constitution. It is clear from
various decisions which have been delivered by the Supreme Court from time to time that the Right
to Life and Personal Liberty which has been guaranteed under our Indian Constitutions not an
absolute one and it can be subject to some restriction. And it is on this basis that the constitutionality
of the laws affecting Right to Life and Personal Liberty are upheld by the Supreme Court which
includes medical examination. And it is on the basis that various courts in the country have allowed
DNA technology to be used in the investigation and in producing evidence. To make sure that
modern technologies can be used effectively, there is an urgent need of a specific legislation which
would provide the guidelines regulating DNA testing in India.In Thogorani alias K. Damayanti v.
State of Orissa and Ors.,73 the court noted that the only restriction for issuing a direction to collect

28
 the blood sample of the accused for conducting DNA test would be that before passing such a
direction, the Court should balance the public interest vis-a-vis the rights under Articles 20(3) and
21 of the Constitution in obtaining

71 AIR 1975 SC1378.

72 AIR 1963 SC1295.

73 2004 Cri. LJ 4003.

evidence tending to confirm or disprove that the accused committed the offence concerned. In
balancing this interest, consideration of the following matters would be relevant:

• the extent to which the accused may have participated in the commission of the crime;

• the gravity of the offence and the circumstances in which it is committed;

• age, physical and mental health of the accused to the extent they are known;

• whether there is less intrusive and practical way of collecting evidence tending to confirm
or disprove the involvement of the accused in the crime;
• the reasons, if any, for the accused for refusing consent.

In Mrs. Kanchan Bedi and Anr. v. Shri Gurpreet Singh Bedi 74, the parentage of the infant was in
question, and the application filed by the mother for conducting DNA test was vehemently opposed
by the father contending that it would violate his rights. Hon‘ble Vikram jit SenJ held that:―it
appears to me to be difficult to resist that the law,as it presently stands, does not contemplate any
impediment or violation of rights in directing persons to submit themselves for DNA test, especially
where the parentage of a child is in controversy for the grant of maintenance.‖ It was further held
that where the parentage of a child is in controversy for the grant of maintenance, parties submitting
themselves for the DNA test is not violation of rights. He relied on the decision of the Hon‘ble
Supreme Court in the case of Geeta Saha v. NCT of Delhi (DB) 75, where a Division Bench of
Hon‘ble Supreme Court had ordered that a DNA test be conducted on a foetus of a rape victim.
Hon‘ble Vikramjit Sen J distinguished this case from the case of Goutam Kundu v. State of West
Bengal &Anr.76,where it was held that―wife cannot be forced to give blood sample and no adverse
inference against her for this refusal‖.
In Ms. X v. Mr.Z & Anr.77, a single Judge of Delhi High Court had allowed a similar

29
 74 AIR 2003 Delhi 446.

75 1999 (1) JCC101.

76 (1993) 3 SCC418.

77 96 (2002) DLT 353.

application and had directed that at the cost of husband, the Pathology Department of All India Institute
of Medical Sciences should conduct the DNA test. The DNA test was to be conducted of a foetus.

In a very important and recent judgment delivered by the Hon‘ble Supreme Court of India in the case of
Sharda v. Dharmpal78where the core question was, whether a party to a divorce proceeding can be
compelled to a medical examination. In this case an order for DNA test was opposed by the Respondent
on the ground that such an order violates his right to privacy. The three Judge bench of the Hon‘ble
Supreme Court held that: ―If for arriving at the satisfaction of the court and to protect the right of a party
to the lis who may otherwise be found to be incapable of protecting his own interest, the court passes an
appropriate order, the question of such action being violative of Article 21 of the Constitution of India
would not arise. The court having regard to Article 21 of the Constitution of India must also see to it that
the right of a person to defend himself must be adequately protected.‖ It further held that if respondent
avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right
to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such
cases become impossible to arrive at a conclusion. It was also said that if despite an order passed by the
Court, a person refuses to submit himself to such medical examination, a strong case for drawing an
adverse inference would be made out. Section 11479 of the Indian Evidence Act enables a Court to draw
an adverse inference if the party does not produce the relevant evidences in his power and possession.The
right of privacy under Article 21 was not absolute and such a direction could be given looking to the
conclusiveness of the DNA Test and its scientific accuracy80. If the applicant has a strong prima facie case
and there is sufficient material before the Court then it can order a person to undergo DNA test and passing
of such an order by the Court would not be in violation of the fight to personal liberty under Article 21 of
the Indian Constitution81. There is nothing brutal or offensive or shocking in taking the blood sample for
DNA test under the protective eye of law.

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 78 AIR 2003 SCW 1950.

79 Section 114 of the Indian Evidence Act, 1872 reads as: “Court may presume existence of certain facts.

80 Banarsi Dass v. Teeku Dutta and Anr. (2005) 4 SCC 449

81 V. K. Bhuvaneshwari v. N. Venugopal, TN-2006-2603.

The constitutional mandate does not say that no person shall be deprived of his personal liberty under
any circumstances. On the contrary, if such deprivation of right or personal liberty is in accordance
with the procedure established by law, the same does not violate Article 21 of the Constitution
ofIndia.82

The recent refusal of the Supreme Court to dismiss the Delhi High court‘s decision ordering veteran
congress leader N.D. Tiwari to undergo the DNA test is very important from the viewpoint of the
admissibility of such evidence. In this case, Rohit Shekhar has claimed to be the biological son of
N.D. Tiwari, but N.D. Tiwari is reluctant to undergo such test stating that it would be the violation of
his Right to privacy and would cause him public humiliation. But Supreme Court rejected this point
stating when the result of the test would not be revealed to anyone and it would under a sealed
envelope, there is no point of getting humiliated. Supreme Court further stated that we want young
man to get justice; he should not left without any remedy. It would be very interesting to see that how
courts in India would allow the admissibility of DNA technology in the future.

Some suggestions regarding DNA profiling which should be followed by the authorities:

• The Government must make necessary provisions / amendments in the Cr. P. C. for the
accused / suspect to provide their DNA sample to the investigating agencies on the direction
of competent court.
• The Government should take speedy measures to create data base of DNA based on ethnic
group, anthropological and regional considerations.
• It is important to create a balance between the constitutional rights of an individual and the
public interest and bring accountability and transparency to the practice of DNA collection
and testing.

31
1

Chapter 8
The Changing Face of Self-Incriminatory Evidence and Social Media

Nowadays social media plays a vital role in everyone‘s life so it is very important in investigation of a
case and facilitate the investigator in collection of evidences. The judgment of Kathi Kalu Oghad83is very
relevant to apply in techno-sociological phenomena. There will be juxtapose the majority and the minority
judgments in Kathi Kalu Oghad to explain their positions while addressing the emerging issue of the role
played by social media as a rich source of personal testimony by an accused.

Social media are web-based and mobile technologies that turn communication into an interactive dialogue
in a variety of online fora, allowing the creation and exchange of user- generated content.84 Social
networking websites are the next generation in communications technology, providing a platform for
multi-faceted communication between participating users. Social networking sites and email accounts
form an integral part of the way the world communicates today. Facebook posts, comments, and
photographs are a potentially rich source of evidence in criminal cases, as they offer a window into a
suspect‘s thoughts that is rare outside of the pages of a diary. 85

Facebook has said that it had 46 million monthly active users in India at the end of 2011, up by 132%
from a year earlier.86 This number is expected to rise exponentially as access to the Internet rises in the
country. In the past few years (in the West), Facebook has emerged as a fertile source of incriminating
information from boastful or careless defendants who find in Facebook a great way to project their outlaw
persona to the world.

82 H. M. Prakash v. The State of Karnataka, ILR 2004 Kar. 2637.

32
83 Supra note 17.

84 Kaplan , Andreas., & Haenlein , Michael.,- Users of the world, unite! The challenges and opportunities of Social Media, Business Horizons, 2010, p.

85 Morrison, Caren Myers- Passwords, Profiles and the Privilege against Self-Incrimination: Facebook and the Fifth Amendment, Georgia State University of
Law, 2012,

86Sharma,Amol.-―Facebook,GoogletoStandTrialinIndia‖,TheWallStreetJournal(March13,2012),

87 Supra note 83 at

In the Geetika Sharma murder case, the victim‘s brother said that the victim‘s Facebook account has been
deactivated and alleged that the prime accused was behind it.89 The day is not too far when Facebook will
become a significant source of testimony in law in India too. This is only covers the situation where the
law enforcement officials, in the absence of a friend of an accused or sufficient information to subpoena
the company directly, cannot have access to the online profile of the accused without the cooperation of
the accused himself.

An investigating agency does not look at a controversy in isolation. The agency not only seeks to establish
the facts of the case but also any information related to the accused in any fashion whatsoever. The advent
of social media has led to the creation of a pool of personal information which for the accused can become
self-incriminatory, if revealed. A Facebook user, through the means of his wall‘ and profile, tries to create
his own world. He makes regular, entries just as in a journal or diary, along with images, video cum audio
links and links to other web-pages. Over a period of time, the user‘s profile begins to reflect his thinking
patterns, lifestyle choices, interests, places frequented, philosophical, religious and cultural leanings,
network of friends and personality traits.

An example can help clarify the relation between the privilege against self-incrimination and Facebook
evidence. An accused X could have been the last person to have been sighted on the murder site. If X‘s
Facebook page reveals that he was in fact present at the murder site or close to the murder site, at the time
of murder, this information could incriminate him. It is here where the nature of information available on
Facebook becomes a bone of contention. When faced with something other than a declarative oral or
written statement, the U.S. Supreme Court has defined a compelled act as testimonial,‘ if it explicitly or
implicitly relates a factual assertion or discloses information.‘ 90

33
The Supreme Court has accepted physical or real evidence‘91 as long as it does not disclose the contents
of his own mind‘.92

88 Id. at 1.
89―Kandahadenoughtimetodestroyevidence:Geetika'sbrother”,DeccanHerald(Aug.18,2012),available
at:http://www.deccanherald.com/content/272452/geetika-case-former-haryana-minister.html(Last visited on April 24, 2015
90 Supra note 83 at 11.
91Ibid.
92Ibid.

It believes that the substantive information available on the Facebook page of an accused is akin to
a snapshot of his mind. Allowing access to it is analogous to disclosing the contents of one‘s mind‘.93
By making inferences through social media accounts, investigators are able to derive knowledge
through the mind of the accused, which otherwise is not available to the former. An individual who
is compelled to give law enforcement access to her Facebook page is forced to engage in cognition
for the benefit of the state and to turn over the results of that mental process.94In addition, the accused
does implicitly relate the factual assertions, I do have a Facebook page‘ and Here is how to access
that Facebook page‘; these admissions play a major role in the light of the controversies regarding
the authenticity of Facebook profiles.95 One of the arguments behind the privilege against self-
incrimination centers upon the supposed cruelty of subjecting the accused to the trilemma of perjury,
self-accusation or contempt‘.96A subpoena to give access to Face book content places the accuse
dinsucha cruel trilemma‘ as the accused is placed in a position of disclosing the access to the content
on his Facebook page, denying that he has a Facebook page, or refusing to answer. 97

If Oghad case were to address the interaction between information available on social media
accounts and what constitutes testimony‘, content such as that available on Facebook would be
dislodged from the protection of Article 20(3) in the assessment of the narrow judgment given by
the majority judgment. Under the majority judgment, it can be easily argued that

34
 93Ibid.

94 Allen, Ronald J. & Mace, M. Kristin- The Self-Incrimination Clause explained and its future predicted, 94(1) Journal of Criminal Law And
Criminology 94(1), 2004, pp. 267-68.

95 Supra note 83 at 4.

96 Amar, Akhil Reed., and Lettow, Renee B.,- Fifth Amendment First Principles: the Self-Incrimination Clause, Michigan Law Review 93(5), 1995 p.
311.

97 Supra note 83 at 13.

social media accounts of an accused do not enjoy protection under Article 20(3). It is based on the
majority view that The giving of personal testimony must depend upon hisvolition.98 Facebook
content will be read as neither oral nor written testimony as it cannot be placed under the volitional
deposition of the accused to speak or write. It was also held that, The accused can make any statement
an accused may have documentary evidence in his possession which may throw some light on the
controversy if it is a document which is not his statement conveying his personal knowledge relating
to the charge against him which may throw light on any of the points in controversy, he may be
called upon by the court to produce that document99 Any document that meets the aforementioned
criterion can be asked to be produced before the Court. Facebook content shall fall under the
production of such a document that does not impart personal knowledge in respect of relev a facts.

The majority faction in Oghad case also held that In order that a testimony by an accused person
may be said to have been self-incriminatory, the compulsion of which comes within the prohibition
of the constitutional provision, it must be of such a character that by itself, it should have the
tendency of incriminating the accused, if not of actually doing so.‘100 The web presence of accused
can be ruled out of the scope of Article 20(3) as by itself, such information does have the tendency
to incriminate the accused.

However, as seen according to the minority judgment, complete protection would be accorded to the
web presence of an accused. The minority understood to be a witness‘ as to furnish evidence‘, when
it stated that There can be no doubt that the ordinary user of English words, the word witness ‖is
always associated with the evidence, so that to say that to be a witness is to furnish evidence is really
to keep to the natural meaning of the words‘. 101

35
 98 Supra note 17 at 11.

99 Id.at 10.

100 Id. at12.

101 Id. at25.

The minority delved into the purpose of evidence to establish that to be evidence, the oral statement or a
statement contained in a document, shall have the tendency to prove a fact- whether it is a fact in issue or
a relevant fact.‘102 By understanding the expression102 to be a witness‘ in its natural sense, the minority
helped establish how documents, though not transmitting the accused‘s personal knowledge could, in fact,
have a tendency to make probable the existence of a fact in issue or a relevant fact, thereby furnishing
evidence against himself.

Section 11 of the Indian Evidence Act embodies the facts which otherwise irrelevant become relevant. It
states:

―Facts not other wise relevant a rerelevant:

• 2if they are inconsistent with any fact in issue or relevant fact;

• if, by themselves or in connection with other facts they make the existence
or non-existence of any fact in issue or relevant fact highly probable or
improbable.‖

As stated earlier, X‘s Facebook page may reveal that he was present at the murder site at the time of
murder. The fact that he was at the murder site, at the time of murder, makes it highly probable he
could have, in fact, committed the crime. Thus, this irrelevant fact becomes a relevant one as it has

102 Id. at28

103 Id.at 30.

36
 by itself made the existence of a fact in issue highly probable. Therefore, by allowing the trial agency
access to one‘s Facebook page, the accused is in fact furnishing evidence against himself.

The minority is closer to the spirit and intent of Article 20(3) as it comprehensively explains that the
dangers that abound in the absence of the privilege against self- incrimination exist
whether the evidence which the accused in compelled to furnish is in the form of oral or written
statements about his own knowledge or in the shape of documents or things which though not
transmitting his knowledge of the accused person directly helps the court to come to a conclusion
against him.‘103

The minority states that the production of such documents or things does amount to being a witness as the
giving of the same amounts to furnishing evidence and hence, the person producing of the same is being
a witness. The advent of social media and web presence is thrown into sharp relief by the depth of the
minority judgment due to the intricate and intimate personal information available which acts as rich
source of testimony and can incriminate a person falsely. Thus, giving access to one social media accounts
does amount to being a witness‘.

Facebook content, under the minority judgement, will make Article 20(3) spring into action as Facebook
content is of the nature of a document that may not provide personal knowledge with respect to the facts
in question but help make probable a fact in issue or a relevant fact, thereby furnishing evidence against
the accused and making him a witness‘. A subpoena to access the Facebook page of the accused
necessarily means compulsion.104 As all three ingredients of Article 20(3) co-exist, protection of Article
20(3) can be claimed. In Facebook content closes gaps between other kinds .Information on social media
accounts furnish a new link in the chain of evidence‘105 and help the investigators discover fresh facts or
materials that could be relevant to the on-going investigation.106

One‘s entire personality is etched across the pages of social networking sites. In their efforts to vet
applicants, some companies and government agencies are going beyond merely glancing at a person's
social networking profiles and instead asking to log in as the user to have a look around.107 This speaks
volumes about the notion prevalent amongst employers that one‘s social media accounts are a storehouse
of sensitive and personal information which can be used to assess candidature.Facebook is a tantalizing
prize for prosecutors. It gives an insight, even if it is only in the form of the highly stylized, self-
dramatizing Facebook persona, into the psyche of the defendant.74

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 104 Supra note 83 at 1

105 Selvi v. State of Karnataka, (2010) 7 SCC 263

106 Ibid.

107 Valdes, Manuel.,- Job seekers getting asked for Facebook passwords, Associated Press (Mar 20, 2012), available at
http://finance.yahoo.com/news/job-seekers-getting-asked-facebook-080920368.html HYPERLINK "http://finance.yahoo.com/news/job-seekers-

getting-asked-facebook-080920368.html",(Last visited on April 25,2015).

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 Chapter 9

Conclusion

In view of the constitutional provisions against self-incrimination the Courts have required the prosecution
to prove guilt beyond reasonable doubt and there has been no encroachment whether at the stage of
interrogation or trial, into the right to silence vested in the suspect or accused. It is well established that
the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini
Sathpathy v. P. L. Dani, no one can forcibly extract statements from the accused, who has the right to keep
silent during the course of interrogation (investigation).

Law is a living process, which changes according to the changes in society, science, and ethics and so on.
The Legal System should imbibe developments and advances that take place in science as long as they do
not violate fundamental legal principles and are for the good of the society. The criminal justice system
should be based on just and equitable principles.

The Right against Self-Incrimination guaranteed in the Constitution of India, though clear in its wording,
owing to equally compelling factors such as the State‘s interest in preservation of law and order, has failed
to generate a set of concrete workable principles that a court can use to decide and defend the outcomes
of particular cases. The maxim Nemo Tenetur Seipsum accusare meaning „no man is bound to accuse
himself‟ had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogation
of accused persons. A proper analysis of the this protection, and its implications on the system of criminal
justice vis-à-vis providing exceptions to this Right and its implications on individual liberties will demand
a very objective understanding of the ethical,scientific and legal aspects of protection against Self-
Incrimination.

Article 20(3) of our constitution is not attracted at all, and no question of waiver can possibly arise,
whether the ingredients of the clause are not satisfied e.g., where the accused is not compelled on the
evidence is not used against him. Hence, where the accused volunteers to give evidence of his own choice
gives evidence in lieu of an advantage, such an offer of pardon, there is no compulsion and no violation
of the clause at all. The privilege which can be waived is afforded by the fact that unless the accused can
take the stand and waive his right the whole object of his going into the box to prove his innocence would
be defeated.

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The protection under article 20 (3) is available only in criminal proceedings or proceedings of criminal
nature before a court of law or other tribunal before which a person may be accused of an offence in
section 3(38) of the General clauses act, that is, an act punishable under the

108 AIR 1978 SC 1025 penal code or a special or local law. The protection of article 20(3) would not
apply to parties and witnesses in civil proceedings other than criminal.

It should be the duty of the state to ensure that the rights of its citizens are protected and every individual
gets an opportunity to a fair trial and objective application of laws which provide an opportunity for
creating a society which balances the clash of interests at different levels. The individual State balance
can be reached only by empowering the State in its endeavour of public order and control of crime and at
the same time placing clear and distinct limits upon such power. A system of accountability and dispense
of information giving force the public‘s „Right to Know‟ are indispensible features of such limits. At the
same time, standards of quality, secrecy and security need to be maintained

Article 20 (3) provides protection against self-incrimination and gives the accused the right to remain
silent over any matter which tends to incriminate him. This article extends to the persons who are
compelled to be a witness and also covers searches and seizures wherein, an accused or the person being
searched is under no obligation to be a part of the search. If any statement is made on some finding then
it will not be protected under Article 20(3). The law says that an accused cannot be tortured or forced to
make a confession and no duress can be exercised on him to obtain information out of him. In such cases,
the privilege under Article 20(3) would be attracted. Scientific methods like Narco-analysis tests,
polygraph analysis, etc which disrupt the Right to Privacy are considered to be violative of Article 20(3),
and can only be conducted in extraordinary circumstances. However, with the advancement in medical
sciences, the reliability of these tests has increased and in my opinion, these tests can prove to be effective
tools for furnishing evidence for the speedy disposal of the cases.

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 Bibliography

Books preferred
1. Allen, Ronald J. & Mace, M. Kristin- The Self-Incrimination Clause explained and its future predicted,
94(1) Journal of Criminal Law And Criminology 94(1), 2004, pp. 267-68.
2. Amar, Akhil Reed., and Lettow, Renee B.,- Fifth Amendment First Principles: the Self-Incrimination
Clause, Michigan Law Review 93(5), 1995 p. 311.
3. Kaplan , Andreas., & Haenlein , Michael.,- Users of the world, unite! The challenges and opportunities of Social Media, Business Horizons, 2010, p.
4. Morrison, Caren Myers- Passwords, Profiles and the Privilege against Self-Incrimination: Facebook and the Fifth Amendment, Georgia State University of
Law, 2012,
5.Sharma,Amol.-―Facebook,Google to Stand Trial in India‖, TheWall Street Journal (March13,2012),

6. See H.M. Seervai- Constitutional Law of India, Universal Law Publishing Co., 4th edn. 1996, Vol. II, pp. 1063- 1064
8. Indian constitution ,J.N.Pandey
9.Indian Evidence Act.

Web linkage
1.. Kanda had enough time to destroy evidence:Geetika'sbrother”,Deccan Herald(Aug.18,2012),
available//at:http://www.deccanherald.com/content/272452/geetika-case-former-haryana-minister.html
2.http//blogs.ipleaders.in
Right against self-incrimination in India
3.www.legal service india.com
Privilege against self –incrimination –legal service
4.http//dictionary .cambridge.com
self incrimination /in the cambridge

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