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Constitutional Law-I

This document is a project report submitted by Anant Ekka to Dr. Deepak K. Shrivastava on the topic of "Protection against self incrimination under article 20(3) of the Constitution of India." It contains an introduction outlining the background and scope of the topic. The report then discusses the following key points in 3 sentences or less: 1) Article 20(3) of the Indian Constitution guarantees protection against self-incrimination for any person accused of an offence by prohibiting compulsions to be a witness or give evidence against oneself. 2) The protection only applies to persons formally accused of an offence in a court or police investigation, not general witnesses.
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100% found this document useful (1 vote)
364 views13 pages

Constitutional Law-I

This document is a project report submitted by Anant Ekka to Dr. Deepak K. Shrivastava on the topic of "Protection against self incrimination under article 20(3) of the Constitution of India." It contains an introduction outlining the background and scope of the topic. The report then discusses the following key points in 3 sentences or less: 1) Article 20(3) of the Indian Constitution guarantees protection against self-incrimination for any person accused of an offence by prohibiting compulsions to be a witness or give evidence against oneself. 2) The protection only applies to persons formally accused of an offence in a court or police investigation, not general witnesses.
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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i

Project report

On

Protection Against Self Incrimination under Article 20(3)


of the Constitution of India
Submitted to:

Dr. Deepak K. Shrivastava

Faculty of Constitutional Law-I

Submitted By:

Anant Ekka
Roll no. 26

Section A

Semester III, B.A. LLB (Hons.)

Submitted on: 28/11/2018

Hidayatullah National Law University

Uparwara, Abhanpur, New Raipur (C.G.)


ii

Acknowledgements
I feel elated to work on the project “Protection against self incrimination under article 20(3)of
the Constitution of India.”. Firstly I express my deepest gratitude towards Dr. Deepak K.
Shrivastava, Faculty of Constitutional Law-I, to provide me with the opportunity to work on this
project. His able guidance and supervision were of extreme help in understanding and carrying
out the nuances of this project.

Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.

Anant Ekka

Roll No. 26

Section A, Semester III


iii

Contents
1. Acknowledgments ii
2. Introduction 1
3. Research Methodology 2
4. Constitutional protection against self-incrimination 3
5. Accused of an offence 4
6. Compulsion to be a witness 5
7. Compulsion to give evidence against himself 6
8. Narcoanalysis, Polygraphy and Brain Finger Printing tests of accused-
Violates Article 20(3) 7
9. Conclusion 9
10. Bibliography 10
1

Introduction
The principle of protection against self-incrimination is a fundamental principle of the British
system of criminal jurisprudence. From there the principle find its place in all civilized legal
system following common law jurisprudence. It has been adopted by the American system by the
Fifth Amendment of the American Constitution, which provides that no person shall be
compelled in any case to be a witness against himself. Thus the protection in American
Constitution is available to all persons and in every proceeding, civil or criminal and the Courts
have given a very wide interpretation to the protection.

Under Indian law the principle have been given Constitutional status by incorporating it under
Article 20(3) of the Constitution. Various Statutory provisions like Section 161 of the Code of
Criminal Procedure, 1973, Section 132 of the Indian Evidence Act, 1872 etc. also incorporate the
same principle.

India is a signatory of the International Covenant on Protection of Civil and Political Liberties,
1966. Article 14 of the convention gives minimum guarantees available to all persons in a
criminal trial. Article 14(3)(g) of the convention gives right against self-incrimination to all
persons.

However, Section 14 of the Central Excise Act1944 and Section 108 of the Customs Act, 1962
make a provision that a person is bound to state the truth. These Sections are silent on the
principles of protection against self-incrimination. This paper seeks to examine the relationship
of the Sections imposing a duty on a person to state the truth and the fundamental principle of
protection against self-incrimination.

.
2

Research Methodology

Objective:

The objectives of this project is

 To study the constitutional protection against self incrimination under article 20(3).

Methodology:

This research project is descriptive in nature. Accumulation of the information on the topic
includes wide use of secondary sources like books, articles etc. The matter from these sources
have been compiled and analysed to understand the concept.
3

Constitutional Protection against Self- Incrimination


Article 20(3) of the Constitution of India reads as:
“No person accused of any offence shall be compelled to be a witness against himself.”

Thus Article 20(3) embodies the general principles of English and American jurisprudence that
no one shall be compelled to give testimony which may expose him to prosecution for crime.
The cardinal principle of criminal law which is really the bed rock of English jurisprudence is
that an accused must be presumed to be innocent till the contrary is proved. It is the duty of the
prosecution to prove the offence. The accused need not make any admission or statement against
his own free will. The Fifth Amendment of the American Constitution declares that no person
shall be compelled in any criminal case to be a witness against himself.

The fundamental rule of criminal jurisprudence against self-incrimination has been raised to a
rule of constitutional law in Article 20(3). This guarantee extends to any person accused of an
offence and prohibits all kinds of compulsions to make him a witness against himself. Explaining
the scope of this clause in M.P. Sharma V. Satish Chandra,1 the Supreme Court observed that,
this right embodies the following essentials:

1. It is a right pertaining to a person who is accused of an offence.


2. It is a protection against compulsion to be a witness.
3. It is a protection against such compulsion relating to his giving evidence against himself.

1
AIR 1954 SC 300
4

Accused of an offence
The words 'accused of an offence' make it clear that this right is only available to a person
accused of an offence. A person is said to be an accused person against whom a formal
accusation relating to the commission of an offence has been levelled which in normal course
may result in his prosecution and conviction.2 It is not necessary that the actual trial or inquiry
should have started before the Court. Thus in M.P. Sharma v. Satish Chandra, it was held that a
person, whose name was mentioned as an accused in the first information report by the police
and investigation was ordered by the Magistrate, could claim the protection of this guarantee.

In Delhi Judicial Service Association v. State of Gujarat, 3 it has been held that mere issue or
pendency of contempt proceeding does not attract article 20(3) as the contemners were not
"accused of any offence". A criminal contempt is different from an ordinary offence. Since the
contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency
of contempt proceedings cannot be regarded as criminal proceedings merely because it may end
in imposing punishment on the contemner. A contemner is not in the position of an accused.
Even if the contemner is found to be guilty of contempt, the court, may accept apology and
discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a
criminal offence.

This shows that the guarantee in our Constitution is narrower than that in the American
Constitution. In America the protection of self-incrimination is not confined to the accused only.
It is also available to a witness. The position is the same in English law. But the protection under
clause (3) of Article 20 is only available to the accused.

In Balasaheb v. State of Maharashtra,4 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.

2
Narayan Lal v. M. P. Mistry, AIR 1961 SC 29
3
1991 SCC 406
4
(2011) 1 SCC 364
5

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,5 it 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 protection contained in Article 20(3) is against compulsion “to be a witness” against oneself.
In M.P Sharma v. Satish Chandra,6 the Supreme Court gave a wide interpretation of the
expression “to be a witness” which was inclusive of oral, documentary and testimonial evidence.
The Court also held that the protection not only covered testimonial compulsion in the Court
room but also included compelled testimony previously obtained from him.

In M.P Sharma’s case it was held that, Article 20 (3) was directed against self-incrimination by
the accused person. Self-incrimination must mean conveying information based upon the
personal knowledge of the person giving the information and cannot include merely the
mechanical process of producing documents in the Court.

It follows that giving thumb impressions, or impression of foot or palm or fingers or specimens
of writings or exposing body for the purpose of identification are not covered by the expression
‘to be a witness’ under Article 20(3).
Thus, self-incrimination in context of Article 20(3) only means conveying information based
upon personal knowledge of the person giving information. But where an accused is compelled
to produce a document in his possession which is not based on the personal knowledge of the
accused, in such a case there is no violation of Article 20(3).

5
AIR 1961 SC 1808
6
AIR 1954 SC 300
6

S.27 of the Indian Evidence Act, 1872, provides that during investigation when the discovery of
evidence by the police is led by some fact that was disclosed by the accused then so much of the
information as relates to the facts discovered, may be proved irrespective of the fact whether that
information amounts to a confession of not. It was held that the provisions of this section are not
prohibited within the scope of Article 20(3) unless compulsion had been used in obtaining the
information.

Compulsion to give evidence against himself


The protection under Article 20(3) is available only against compulsion of the accused to give
evidence against himself. Thus, if the accused voluntarily makes an oral statement or voluntarily
produces documentary evidence, incriminatory in nature, Article 20(3) would not be attracted.

But left to himself he may voluntarily wave his privilege by entering into the witness-box or by
giving evidence voluntarily on request. Request implies no compulsion; therefore, evidence
given on request is admissible against the person giving it. 7 To attract the protection of Article
20(3) it must be shown that the accused was compelled to make the statement likely to be
incriminative of himself. Compulsion means duress which includes threatening, beating or
imprisoning of the wife, parent or child of a person. Thus where the accused makes a confession
without any inducement, threat or promise Article 20(3) does not apply.

A case at hand would be Mohd. Dastagir v. State of Madras 8 where the appellant went to the
residence of the Deputy Superintendent of Police and handed him an envelope. On opening the
envelope, the DSP found cash in it, which meant that the appellant had come to offer bribe to the
officer. The DSP refused it and asked the appellant to place the envelope and the notes on the
table, and he did as told, after which the cash was seized by the Police. In this case the Supreme
Court held that, the accused wasn’t compelled to produce the currency notes as no duress was

7
State of Bombay v. Kathi Kalu
8
AIR 1960 SC 756
7

applied on him. Moreover the appellant wasn’t even an accused at the time the currency notes
were seized from him. Hence in this case the scope of Article 20(3) was not applicable.

In V.S Kuttan Pillai v. Ramakrishnan,9 the Supreme Court held that search of the premises
occupied by the accused without the accused being compelled to be a party to such a search
would not be violative of the constitutional guarantee enshrined in Article 20(3).

Narcoanalysis, Polygraphy and Brain Finger Printing


tests of accused- Violates Article 20(3)
In a significant judgment in Selvi v. State of Karnataka,10 the accused have challenged the
validity of certain scientific techniques namely, Narcoanalysis, Polygraphy and Brain Finger
Printing (HEAP) tests without their consent as violative of Article 20 (3) of the Constitution,
they argued that these scientific techniques are softer alternatives to the regrettable use of third
degree methods by investigators and violates right against self incrimination in Article 20 (3) of
the Constitution.

The State argued that it is desirable that crime should be efficiently investigated particularly sex
crimes as ordinary methods are not helpful in these cases. So the issue was between 'efficient
investigation' and 'preservation of individual liberty'. A three judge bench of the Supreme Court
unanimously held that these tests are testimonial compulsions and are prohibited by Article 20
(3) of the Constitution. These tests do not fall within the scope of expression "such other tests" in
Explanation of Section 53 Criminal Procedure Code. The protection of self incrimination is
available at the stage of investigation also and it is also available to witnesses.

In Narcoanalysis test a drug is given to him so that he can divulge important information. The
drug is known as Sodicum Pentothal—used or introduced as general anesthesia in surgical
operations. The Polygraphy and Brain Finger Printing (BEAP) test is also known as the Wave

9
AIR 1980 SC 185
10
AIR 2010 SC 1974
8

Test. Electric waves are introduced into the mind. It was held that compulsory administration of
the Narcoanalysis techniques constitutes cruel, inhuman or degrading treatment in the context.
Article 21 of the Constitution disapproves of involuntary testimony irrespective of the nature and
degree of coercion, threats fraud or inducement used to elicit the evidence. The popular means of
the terms such as 'torture and cruel' inhuman or degrading treatment are associated with gory
images of bloodletting and broken bones. A forcible invasion into a person's mental process is
also an affront to human dignity and liberty often with grave and long and lasting consequences.
9

Conclusion
Article 20 (3), invokes protection against self-incrimination and gives an accused the right to
remain silent over any issue which tends to incriminate him. Article 20(3), has been carefully
crafted to protect the accused from further self-incriminating himself only if any statement of his
might result in prosecution.

This article also stretches its privileges to a person who is compulsorily being made 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. Under the law, an accused cannot be tortured to make a
statement or a confession and no duress can be exercised in order to obtain some information out
of him, in such a case the statement would be void and the privileges under Article 20(3) would
be applicable. Narco-analysis tests, polygraph analysis etc. which refer to involuntary
administration of mental processes, are considered violative of Article 20(3) and can only be
done in a few cases as it disrupts the right to privacy.

But with the advancement in medical sciences, the certainty of such scientific tests has increased
and I think that they provide an effective tool to furnish evidence which help in speedy disposal
of cases by balancing the harmony between the protective rights and the need for speedy
disposal.
10

Bibliography
Books:

 V. N Shukla, Constitution of India, by MP Singh, Eastern Book Company, Reprinted,


March 2007 with supplement
 M.P. Jain’s, Indian Constitutional Law, 5th Edition, Wadhwa Nagpur,Reprint,2007
 Dr. J. N. Pandey, The Constitutional Law of India, 50th Edition

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