A Single Judge of the Gujarat High Court handed down the decision in Devani v. State of Gujarat [Spl. Criminal Application Direction 5226 of 2015, decided on 18.01.2017], which formed the basis of the previous Guest Post on the Blog. To recount, the decision agreed with the Supreme Court's conclusions in Ritesh Sinha [(2013) 2 SCC 357] that compelling a person accused of an offence to undergo 'Voice Spectrography' does not amount to making her a witness against herself. Having held so, Pardiwala, J. then considered whether there was any statutory basis to permit such testing by the police. This was the issue on which the two judges in Ritesh Sinha disagreed, and is now pending before a larger bench for resolution. Pardiwala, J. found no such basis, and thus held that the Petitioner could not be compelled to undergo Voice Spectrography. This brief post follows up on the analysis offered previously and develops those ideas further.
'Evidence' in Article 20(3) and the Physical-Mental Divide
To decide whether or not the right against self-incrimination, guaranteed under Article 20(3) of the Constitution, is violated, three questions need to be affirmatively answered. First, that the person concerned is accused of an offence. Second, this person is required to give evidence against herself. And, finally, that the person must be compelled to incriminate herself. In Devani, only the second of these questions arose: Pardiwala, J. had to decide whether the taking of voice samples/exemplars could amount to evidence?
Section 3 of the Indian Evidence Act contains a very broad definition of the term 'evidence'. Does the same definition apply here? It doesn't. As Gautam pointed out, the interpretation of this part of Article 20(3) is governed by State of Bombay v Kathi Kalu Oghad [1962 (3) SCR 10] which was decided by eleven judges. Deciding whether or not handwriting samples and blood samples were within the pale of Article 20(3), the Supreme Court gave us the term 'physical evidence'. By prefacing 'evidence' in this manner, the Supreme Court excluded blood samples and handwriting samples from the mix. The logic essentially being, that these materials were inherently immutable and were only being used for drawing comparisons with material already collected during the investigation. Enter, Selvi v State of Karnataka [(2010) 7 SCC 263]. Decided by three judges, it considered whether an accused could be compelled to undergo either brain mapping (BEAP), polygraph tests, or narco-analysis. The three judges held that compelling a person accused to undergo any of these would violate the constitutional right under Article 20(3). Now, you may correctly ask, that was it proper to place all three tests in the same bracket? After all, the drugged state of narco-analysis involves persons making statements, as opposed to polygraph tests relying upon physical responses to stimuli (usually questioning). On the issue of polygraph tests, the Court held that such a physical response was as good as a statement. The response involved a unique communicative value, which ordinary 'physical evidence' would lack.
I agree that Pardiwala, J. is not entirely correct in narrowly construing the contours of Selvi by suggesting that the decision was solely concerned with what he calls 'psychiatric evidence'. The problem really is how broad the conclusions in Selvi were, as Gautam pointed out. While it attempts to distinguish Kathi Kalu Oghad, the logic employed for bringing polygraph tests within the confines of Article 20(3) does not hold firm. This is because even in a polygraph test the physical responses are used to compare. There is a set of normal readings taken when the person responds to supposedly harmless questions. After this, the uncomfortable questions are asked, and the readings obtained by both the sets of responses are then compared. There is a way to keep both Kathi Kalu Oghad and Selvi, perhaps. This would look at how the preliminary readings in polygraph tests are also obtained under coercion, as against a case like blood samples where material is obtained wholly independently.
Self-Incrimination and Voice Exemplars
The previous post made important observations about the logic behind Article 20(3) which receives scant attention. Gautam argues that the employment of the 'physical evidence' concept was an attempt to balance the dual claims of the crime control vs. due process approach. Developing his thoughts further, one may suggest that Selvi shows a shift from focusing on the crime control aspects to the issues of due process. In Kathi Kalu Oghad, we get a clear idea that the Court saw Article 20(3) as a means to ensure the quality of evidence at trial remained of a sterling quality. While persons may give false testimony under pressure, blood never lies, and so it made no sense to exclude it from the possible evidence that a judge may consider to decide issues at trial. Fifty years later, the three judges in Selvi are at pains to link Article 21 to Article 20(3). There is as much attention placed upon the manner in which the evidence is obtained, rather than solely judging its quality. Thus, the Court appears more willing to look at issues such as particular techniques violating the mental privacy of the accused which it earlier would not rarely consider.
The problem with making claims about 'shifts' is that there needs to be something more to suggest a trend. Unfortunately, I can offer nothing by way of evidence, and would rather classify Selvi as a one-off event in the largely depressing judicial history of Article 20(3). On each of the three questions that I identified, the Supreme Court has consistently narrowed the scope, only to render this constitutional protection non-existent for large swathes of the criminal law that are today administered by agencies other than the khaki-clad police.
Moving on to considering the particular issue at hand, then. I agree with Gautam that the 'physical evidence' conception is not the answer for a conceptually rigorous model for understanding the right against self-incrimination. But I do not think that the issue of voice sample poses any great difficulty to the existing setup and thus calls for reform will not find many takers, yet. If we were to look at this issue of voice samples from the lens of Kathi Kalu Oghad, it would be argued that the voice sample is obtained to compare it with the tape recording. Voice, like handwriting, is quite immutable, making it a fit for the 'physical evidence' category. The approach offered by the Selvi would offer the same result. The voice samples here have no communicative quality of their own: they are purely for purposes of comparison with evidence that exists independent of the person. The big flaw in this entire claim is the idea that the human voice is immutable since there is material to suggest otherwise (something that Devani does not fully address). Assuming there is some certainty on that front, it is difficult to argue that the technique of Voice Spectrography would violate Article 20(3).
Creating a Statutory Basis
The second part of the decision is a familiar tale of woe. Pardiwala, J. traverses through the entire gamut of statutes in the field in his search for some basis to ground this technique, only to end his search in vain. He concludes that Voice Spectrography could therefore not be compelled upon an accused, and offers pointers to the State Government on how to remedy the situation before finishing his decision. The tale is familiar because it can be recounted for most investigative developments in India. This blog had earlier considered one example in Section 311-A of the Cr.P.C.; how it took several decades for such a common investigative tool (taking handwriting samples) to receive statutory support, only for it to be riddled with problems.
The Criminal Procedure Code, 1973 is a curious mixture of highly particular rules combined with vague standards. The part on police investigations are a good example. Police discretion on when to investigate a case is couched in vague terms, coexisting with provisions stipulating meticulous rules for things such as inquests. Do we, then, really need a clear statutory basis for what techniques can the police administer? Pardiwala, J. himself suggests that there may not be such a need when he invites the State Government to consider bringing in Rules to permit Voice Spectrography. Regardless of where one stands on the security-liberty paradigm, few would dispute the need for law to keep pace with technology and for the police to have up-to-date investigative tools at its disposal. This raises questions on whether it makes sense to continue requiring concrete statutory backing for the particular techniques that the police can adopt, in an environment that is notorious for belaboured law reform. The spectre of abuse and misuse looms large though, leaving us with that familiar feeling: of being between a rock and a rather hard place.