(An earlier version of this post first appeared on the Indian Constitutional Law & Philosophy Blog)
Article 20(3) of the
Constitution of India is extremely fascinating. Tersely worded, it can be
quoted in full: No person accused of any
offence shall be compelled to be a witness against himself. Three
components can be identified: (i) the protection applies to a person accused of any offence, (ii) it
prohibits said person being compelled
to be a witness, and (iii) this prohibition applies only to the person
concerned. It is the first of these three issues that occupies me for this post.
M.P. Sharma and a Nascent Right
M.P. Sharma v.
Satish Chandra [AIR 1954 SC 300] was the first decision to consider Article 20(3). The facts were simple. Investigations
ordered by the Registrar of Joint Stock Companies revealed certain companies
were engaging in fraudulent transactions. The Delhi Special Police
Establishment (now CBI) required to seize their books and
separate First Information Reports (FIR) were registered against the different
companies. Search warrants under Section 96 of the Cr.P.C. 1898 were issued and the documents seized. The proprietors then filed petitions under Article 226 challenging
the searches as violating their fundamental rights under Articles 20(3) and
19(1)(f) of the Constitution. Only the Article 20(3) question was considered
important. Eight judges delivered a unanimous decision, rejecting the claim. The
Court noted how self-incrimination required a careful balancing of the needs of investigation
with individual protection. With this in mind, the Court explained all three of the
facets identified above. I’ll restrict myself to the aspect of Article 20(3)
being limited to a person accused of any
offence. The Court held that the right extends to beyond the courtroom
(yes, I’m cheating. This came in context of the ‘being a witness’ part), and
then had to draw a line on how far did the right extend. In rather vague
fashion, the Court said limited it to “a
person against whom a formal accusation relating to the commission of an
offence has been levelled which in the normal course may result in prosecution”.
Importantly, the Court observed “whether
it is available to other persons in other situations does not call for a
decision in this case”.
The Court made an important choice in choosing to
expand the scope of Article 20(3) beyond the courtroom despite it having a
qualifier (accused of any offence). However, I argue that the Court got it slightly wrong. The
problem lies in the vantage point the Court adopts while viewing Article
20(3). The Court decides against a narrow approach, yes, but it still bases its
decision by looking at the protection from that standpoint of the eventual court proceedings. Compelled evidence is inherently unreliable for trial (for
people lie when tortured), and such tainted evidence can arise through compulsion
exercised beyond the courtroom, so we need this right to extend that far. This reasoning is commonly touted as the basis
for the protection only for such claims to be convincingly rebuffed time and
again [For instance, Friendly, The Fifth
Amendment Tomorrow: The Case for Constitutional Change, 37(4) U. Cin. L.Rev. 671 (1968); Amar & Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93
Mich. L. Rev. 857 (1995)]. Shorn of the academic discourse, the reason why focusing too much on eventual
proceedings is practically a problem is not hard to fathom either. Imagine a situation where you
are not named in the FIR as an accused but are picked up by the police, forced
into writing a confession, but the matter ultimately never goes to trial and are
thus released from custody. The detention is not unlawful – the police can
arrest suspects – so no Article 21 violation occurs. You were forced to
incriminate yourself. But, according to M.P.
Sharma, it is difficult to claim this as a violation of the right under
Article 20(3). Difficult and not impossible, only because of the caveat, which was
to get forgotten soon after.
Socio-Economic Offences and a Withering Right
The formal accusation referred to in M.P. Sharma must
also be one that normally may result in
prosecution (Thomas Dana v. State of Punjab, AIR 1959 SC 375). Prosecution refers to initiation of legal
proceedings, i.e. a trial. A formal
accusation appears to have been used with the intention to create different
classes of accusations. Formal here would mean ‘official’ (the other definition
of the word being based on etiquette must be excluded), and the Court perhaps
wanted to separate official accusations from those by private individuals. The
police registering an FIR is qualitatively different from me filing a complaint against you
at the local police station. But now a gap emerges between the
time when an accusation becomes a formal accusation. Here, remember, the
Court issued a caveat – its judgment did not preclude an extension of the right under Article 20(3), but only
provided some sort of minimum. This gap might yet be covered under Article
20(3), as the Court didn’t discuss such cases.
How did the Court look at it though? 5 judges in Raja Narayanlal
Bansilal v. Maneck Phiroz Mistry [AIR 1961 SC 29] had a case similar on facts
to M.P. Sharma; the only difference
being that here there was no FIR against the companies or proprietors. An
Inspector appointed under the Companies Act, 1956, called upon the appellants
to furnish certain information. The Appellant challenged this investigation as
being inter alia, contrary to Article
20(3). While observing the earlier judgment of M.P. Sharma, the 5 judges concluded that “the effect of this decision thus appears to be that one of the
essential conditions for invoking the constitutional guarantee enshrined in
Art. 20(3) is that a formal accusation relating to the commission of an
offence, which would normally lead to his prosecution.” Did the inquiry
here amount to such an accusation? No, it was more like a fact-finding
commission and “the fact that a prosecution
may ultimately be launched against the alleged offender will not
retrospectively change the complexion or character of the proceedings”. The
unanimous answer thus being, no violation of Article 20(3). The Court seems to
have been referring to the caveat of M.P. Sharma at the end of its decision in Raja Narayanlal. It observed “even if the clause ‘accused of any offence’
is interpreted in a very broad and liberal way it is clear that at the relevant
stage the appellant has not been, and cannot be, accused of any offence.”
Only to then say that such a broad interpretation did not appear “consistent with the tenor and effect of the
previous decisions of this Court”.
The 'gap' identified came sharply in focus with the socio-economic legislation introduced/modified in the 1960s. Romesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940] was a case that arose out of the old Sea Customs Act, 1878
(replaced by the Customs Act, 1962). The Appellant had been searched at Dum Dum
Airport, Calcutta, and this search lead to recoveries of jewels and currency
worth several lakhs of rupees. He was questioned under Section 171-A of that
Act (after possibly being arrested, which is not entirely clear from the
judgment), where disclosures lead to further recoveries. These discoveries made
pursuant to this inquiry were assailed as being the result of the Appellant
being compelled to incriminate himself. 5 judges unanimously dismissed the claim finding no violation of the right. The Court’s reasoning while denying
that Article 20(3) applied to the case is important: “a person arrested by a customs officer because he is found in
possession of smuggled goods or on suspicion that he is concerned in smuggling
is not, when called upon by the Customs Officer to make a statement or to
produce a document or thing, a person accused of an offence within the meaning
of Article 20(3) of the Constitution. The
Customs Officer does not at that stage accuse the person suspected of
infringing the provisions of the Sea Customs Act … he is not accusing the
person of any offence punishable at a trial before a Magistrate”. With this
it would appear that the Court has taken a clear and consistent view on how to
consider that gap we identified. Anything prior to the formal
accusation means no protection.
The Problem Laid Bare
Have a look at the
procedure under the Customs Act 1962 and other socio-economic offences such as the Foreign Exchange Management Act 1999, and the Narcotics, Drugs and Psychotropic Substances
Act 1985. The formal
accusation in these cases is a Complaint filed by the authorised officer, which
is the result of an investigation.
Here, there is no pre-investigative accusation
drawn up by the authority like an FIR required under the Cr.P.C. The reason for
this is a ridiculous deeming fiction which requires that we don’t call these
officers police officers and by
extension call these investigations enquiries, despite the officers having the same
powers of investigation as conferred under Chapter XII of the Cr.P.C. [on this,
see Sekhri, Confessions, Police Officers and Section 25 of the Indian Evidence Act,
1872, 7 NUJS L.
Rev. 1 (2014). The formulaic rather than functional approach of the Court adopted here is strikingly similar to its decisions on Section 25 of the Evidence Act].
These socio-economic
offences have extensive pre-trial powers during the ill-phrased enquiry stage. The Customs Act 1962
(successor to the Sea Customs Act, 1871), allows customs officers powers of
‘searches, seizure and arrest’. A customs officer can summon any person
[Section 108] and examine her during
the course of an enquiry into the smuggling of goods [Section 107]. Persons
summoned are “bound to state the truth
upon any subject respecting which they are examined or make statements”,
and these enquiry proceedings are deemed to be judicial proceedings for Section
193 and 228 of the Indian Penal Code. So if you lie, perjury charges can follow.
On top of this, the customs officer can arrest [Section 104] upon having
reasons to believe that the person committed an offence punishable under
Section 132, or 133, or 135, or 135-A or 136 of that Act. Detention can and
will follow, and could possibly extend to 60 days as specified under Section
167, Cr.P.C. What the Supreme Court has done, is to exclude the right of
self-incrimination from this entire
process because of its focus on the actual realisation of proceedings as
first seen in M.P. Sharma.
The steady growth of
powers during this enquiry stage under socio-economic offences supports the
theory that the Legislature is not blind to the line-drawing adopted by the
Supreme Court. So what do we draw from this? Today you can be questioned under
the threat of prosecution to supply potentially incriminating information. You can
be arrested and detained during this process, but still the right under Article
20(3) remains beyond reach. Why? Because the accuser might not have found all
that was needed from you to incriminate yourself.
small suggestion... this is one of those immensely informative articles of yours where i felt the sequence of the paragraphs was anticlimactic. all the theoretical guarantees and intentions are described in detail, raising hopes, in the earlier paragraphs, and the final paragraphs present the factual state which is depressing. it would be easier on the reader, if you started with the depressing state of affairs. that way, only those who are really optimistic or are interested from a pedantic or pedagogical perspective can read through the entire article.
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