Friday, July 24, 2015

Article 20(3) and Persons Accused

Compelling persons to incriminate themselves is forbidden in most common law countries, usually by means of a guaranteeing rights against self-incrimination in a constitution or other basic text. In India, we have Article 20(3), guaranteeing that "no person accused of an offence shall be compelled to be a witness against himself". Scan through any textbook on constitutional law in India, and there will be praise for this necessary right that prevents police oppression and forced confessions. But is the right under Article 20(3) really that useful? Note, I am not debating the merits of a right against self-incrimination itself (a very vibrant debate), but of Article 20(3) in particular.

The History behind the Text
Article 20(3) in the Constitution of India 1950 featured as Draft Article 14 during the debates in the Constituent Assembly. This was different though from the initial draft article prepared by the Fundamental Rights Subcommittee which was sent to the Advisory Committee. The first draft had only two sub-clauses and the second one read "No person shall be tried for the same offence more than once nor be compelled in any criminal case to be a witness against himself." The inspiration from the self-incrimination clause in the Fifth Amendment to the United States' Constitution is apparent. The Amendment reads: "no person ... shall be compelled in any criminal case to be a witness against himself".

When the clause went to the Drafting Committee, it was decided to split up the clause for clarity. There were also changes in the language, and the text became no person accused of any offence. The reasons behind the same were not entirely clear from the current materials available to me [primarily, The Making of India's Constitution by B. Shiva Rao]. Considering the Assembly Debates, we don't get much clarity on the issue either. The common refrain in the Assembly was the similarity of rights with protections available under the ordinary criminal laws of the country at the time. The possibility of statutory protections being amended is what seems to have provided the rationale behind creating Article 20. But the debates are unhelpful for drawing any further inferences [contrary to what a Division Bench of the Bombay High Court held in Ramachandra Ram Reddy v. State of Maharashtra, 2004 Bom CR(Cri) 657].

Who is an Accused?
If the right under Article 20(3) is only available to an accused, we must then ask who is such an accused? Running through the CrPC, the first mention of a person as an accused is in Section 167. This concerns remand to custody during investigation. So is arrest the key? But, what about the other provisions under the Evidence Act which protect accused persons from statements they make to the police. Would arrest not allow the police to extract statements rather easily then? Is a unified standard even possible?

Sidestepping the issue of a uniform standard/definition, let us address how the Supreme Court has understood the term for the purposes of Article 20(3). When the Court took up this issue for the first time [M.P. Sharma v. Satish Chandra, AIR 1954 SC 300], it was in a case where the question was whether the protection is restricted to the goings-on of a courtroom. The Court rejected such a narrow reading and said the protection "is available therefore to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution."

Faced with a question on the statutory questioning of persons by customs officials, two decades later two Constitution Benches of the Supreme Court held that such questioning would not contravene Article 20(3) [RC Mehta v. State of West Bengal AIR 1970 SC 940; Ilias v. Collector of Customs, AIR 1970 SC 1065]. How? Because these persons were not yet accused but mere suspects. Being an accused required a formal accusation which was understood to mean an FIR or a similar official complaint. Though some doubts were raised over this reading by Justice Krishna Iyer [Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025], they were laid to rest by Poolpandi v. Superintendent, Central Excise [AIR 1992 SC 1795]

Its interesting how the Supreme Court turned a functional test doctrinal. Article 20(3) was given an expansive reading at first blush. Although it is enticing to argue that this was because the Court was committed to protecting fundamental liberties, remember this is just three years after the decision in A.K. Gopalan v. State of Madras [AIR 1950 SC 27]. A stronger argument is that the Sharma Court simply went with a purposive reading of the text and the general understanding of the right. Fifteen years later, Customs and Excise have become issues of national importance and it would be quite difficult to enforce laws having crucial evidence excluded by Article 20(3).

So, the Court goes ahead and creates this backdoor for allowing evidence. The customs officers can sit you down in a room, ask you all about your possibly shady transactions and you cannot claim this to be self-incriminatory. Why? Because this is all before the moment when the officers use all that evidence to file their complaint to make you an accused. With this logic being extended to other laws, including NDPS cases, serious doubt looms on how worthwhile the protection under Article 20(3) really is. 

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