Reclaiming the Right against Self-Incrimination in India

Abstract

In 1961, eleven Justices of the Indian Supreme Court delivered what continues to be the definitive interpretation of the constitutional right against self-incrimination. Despite great scholarly emphasis on fundamental rights cases of the Supreme Court, and the recent emphasis on the Court’s enhanced position in the balance of powers, the decision in State of Bombay v Kathi Kalu Oghad remains criminally under-examined. This paper attempts to fill this gap. It adopts a historical approach to appreciate the import and significance of the issues in Oghad, and to better appreciate the nature of interpretive choices adopted by the Supreme Court in the case. Besides agreeing with and developing the existing legal critique against the outcome in Oghad, the paper goes on to suggest that the decision itself was an example of the Court deferring to the political process. It concludes that it is time for a re-evaluation of those choices, and thus reclaiming the potential of the fundamental right against self-incrimination to serve as a bulwark against police coercion in India.