The right against self-incrimination in India: the compelling case of Kathi Kalu Oghad

Abstract

ABSTRACTIn 1961, 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, and the recent emphasis on the Court’s assumption of executive functions, 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 better appreciate the interpretive choices adopted by the Supreme Court in the case. Besides developing existing legal critiques against the outcome in Oghad, the paper goes on to suggest that the decision was an example of the Court deferring to the political process. It concludes that, perhaps, it is time to re-evaluate those choices, and reclaim the potential of the right against self-incrimination to serve as a bulwark against police coercion in India.