Over the last few posts we have discussed the interpretation of the phrase "person accused of any offence" which limits the application of the right against self-incrimination guaranteed under Article 20(3) of the Constitution of India. It was argued that the Supreme Court has interpreted the phrase in a manner that has placed severe restrictions on the application of this right. The balance, between the needs of law enforcement and rights of individuals, is tilted heavily in favour of the former. This is especially so if we limit our scope to looking at the applicability of Article 20(3) rights to cases involving offences outside the IPC, that are not ordinarily investigated by the police. The lines must be re-drawn, and I propose an alternative in this concluding post on the point. I argue that every person arrested, by any investigating/inquiring agency, and brought before a magistrate for detention beyond 24 hours under Section 167 Cr.P.C. must be understood as the "person accused of any offence" contemplated by the Constitution. I'll try and make out a case in support of this. I admit, at the outset, that the same is a work-in-progress, and comments are much appreciated.
Making a Basic Case
I argue that we profit by reading the Constitution together with the Cr.P.C. Indeed, we must do so for Article 20 rights owing to the obvious overlaps. Article 20(3) coexists with a similar procedural right available under Section 161 of the Cr.P.C. Similarly, Article 20(2) has a corresponding statutory non-identical twin in Section 300 of the Cr.P.C. The Supreme Court has done this throughout its history as well. Unfortunately, in Deepak Mahajan it came to indefensible conclusions while doing so.
If we read the entire Cr.P.C., the existence of some flow becomes evident. The code first tells you about how can a person's presence be secured - through arrest, summons, warrants etc. Then, it comes to securing evidence - searches, seizures, and the like. We then move to executive powers of judges, and then to investigations, cognizance, trial, judgment and appeal. Miscellaneous provisions come at the end. In this intelligent document then, it is not a fluke that Section 167(1) is the first provision that uses the word 'accused' when referring to the person being subjected to the legal justice system. It then characterises this accused person as one against whom "there are grounds for believing that the accusation or information is well-founded." The similarity between this language, and that which the Supreme Court itself used while first explaining the person clause in M.P. Sharma, is striking. Logically as well, it makes complete sense to consider such persons as those 'accused' at the time who may be detained for days in custody, as those to whom the protection against self-incrimination needs to extend. Detention is sought to by the police to collect further evidence, and it is necessary that a legal system protects the object of interrogation from having to face consequences borne out from being coerced to implicate herself.
This is why I disagree with the conclusion in Deepak Mahajan, where it held that the person before a magistrate in Section 167(1) is not the person protected under Article 20(3). Some criticism of the Court's interpretive exercise was already provided in the previous post. I also disagree with the Court's conclusion in paragraph 92 [SCC version of the judgment] that the word 'accused' means different things at different points in time. Rather, I argue that 'accused' has a settled core - someone having a well-founded accusation against herself - and this core develops as we progress from the stage of investigation to trial. The view of the Supreme Court, that a person may be arrested and sent to further detention beyond 24 hours but remains outside the scope of Article 20(3), is absurd. Individuals are left open to interrogation and detention in custody for as long as 3 months, without being protected from the possibility of facing a trial based on evidence coerced out of them.
Reading Statutes Holistically
Setting aside Deepak Mahajan is fairly easy - it is a decision by 2 judges. Assuming it doesn't occupy the field, lets replace it with a view that every person arrested and detained beyond 24 hours is one "accused of any offence" for Article 20(3) and see the consequences. For one, I argue that this approach based on reading laws holistically promotes a clearer application of the criminal laws and also helps maintain that balance between the needs of investigation and the rights of persons.
Within 24 hours, then, the police are not fettered by the absolute restrictions of Article 20(3). That means a person arrested cannot abuse a right against self-incrimination to dent an investigation by staying silent. Although 24 hours may seem like nothing, but manuals on investigation prove that this is not so [I can also crack a joke here and refer to a TV series 24 which shows repeatedly how the world can be put to imminent peril, and saved from it, in 24 hours]. Leads recovered through interrogation may not automatically result in securing evidence, but remain critical nevertheless.
This does not amount to giving the police a license to torture suspects, mind you. Bodily integrity is protected always under Article 21. Further, the scope of using confessions made to police officers is also very limited in India. Section 25 of the Indian Evidence Act prohibits using such confessions at trial against an accused person. Unlike Article 20(3), the person here need not be an 'accused' while making the confession. The reason behind this provision is a presumption against the reliability of such confessional statements. There are exceptions to this rule in Section 27 of that Act, which allow use of statements (wholly or partially) wherever these are supported by actual recoveries of material. The exception operates once a person is in police custody. As self-incrimination protections are also geared to ensure reliable evidence comes to court, applying Article 20(3) to persons in police custody beyond 24 hours would thus only strengthen the principles behind Sections 25 and 27.
The Scope of the Problem at Hand
These posts were only looking at problems on one aspect of the right against self-incrimination. By no means have they been a complete discussion of these problems on this aspect. In fact, an equally bigger problem lies in provisions such as Section 108 of the Customs Act, 1962. These laws permit officers to question persons, and a refusal to answer questions is an offence which can be met by prosecution. Surely, the threat of prosecution on non-compliance amounts to compulsion! However, as the person questioned is not yet "accused of any offence", the Supreme Court has consistently held there is no violation of Article 20(3) by having such provisions. I conclude on a familiar note, thus. There is a long way to go to clean up the mess that is the law on Article 20(3). One only hopes that the Supreme Court does take it up, someday, one step at a time.