'Protection Against Self-Incrimination' as a Fundamental Right in India: A Critical Appraisal

Abstract

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. 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, and thereafter in the Indian Constitution under Article 20(3). In 1978, under the Constitution (Fourty-fourth Amendment) Act, 1978, 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. From the very first years of our Constitution, a certain ambiguity on the question of what evidence was accorded protection, and apparent conflicts between Article 20(3) and provisions of the Indian Evidence Act, 1872 have prevailed. 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 Oghad (1961) which has made a defining contribution to the case law on the matter as it stands today. M. P. Sharma v. Satish Chandra (1954) was the last significant ruling on the interpretation of Part III of the Constitution soon after independence. Following M.P. Sharma, several cases were referred to the Apex Court. Questions addressed were essentially of interpretation of what constitutes ‘to be a witness against himself’ with respect to the circumstances defining compulsion.The researchers in this paper seek to analyse the concept of protection against self-incrimination as a fundamental right in India in various perspective. The rationale of Article 20(3) has been discussed under Part II. Part III covers the provision contained under Article 20(3) in the Constitutional perspective constituting the fundamental right. The judicial interpretation and approach has been discussed under Part IV. Part V and Part VI covers the Narco-Analysis test and DNA testing that how far they suit to the spirit embedded beneath the Article 20(3). Part VII emphasis on the self-incriminatory evidences and the social media with the ending words under Part VIII.