Article 20(3) of the Indian Constitution guarantees to all persons a fundamental right against compelled self-incrimination, and states that "no person accused of any offence shall be compelled to be a witness against himself". In an essay recently published in the Indian Law Review, I focus on the eleven Justices' Bench decision of State of Bombay v Kathi Kalu Oghad [1962 (3) SCR 10], which defined the contours of this constitutional protection.
This is not a purely legal essay, and while I do level a critique at the legal reasoning in Oghad, I don't make normative claims as such about the legal position and what it ought to be. Instead, the purpose of this paper is to look at the decision in Oghad as a historical event, located as the culmination of a 100 year-long history in the Indian subcontinent of using law to address police violence to obtain evidence from defendants.
This is not a purely legal essay, and while I do level a critique at the legal reasoning in Oghad, I don't make normative claims as such about the legal position and what it ought to be. Instead, the purpose of this paper is to look at the decision in Oghad as a historical event, located as the culmination of a 100 year-long history in the Indian subcontinent of using law to address police violence to obtain evidence from defendants.
A long-arc historical narrative helps to appreciate how legal doctrine developed in Colonial India and had a telling influence on how the same judges looked at the issues in Independent India. It also helps appreciate the political context in which these legal developments took place. My suggestion, is that the outcome in Kathi Kalu Oghad was a product of these legal and political forces combining.
Showing the history and context surrounding Kathi Kalu Oghad is an exercise not done purely out of academic interest. This approach suggests that the judicial compromises in Oghad were probably designed as a stop-gap sensing an imminent change in the law on policing, with reform projects in many states moving at a good pace. Instead, the 1962 War came and brought with it an Emergency, consigning those reform-efforts to the waste-basket of history. The compromises that made sense to those eleven Justices in August 1961, do not make sense today in 2019, and are the primary reason why Article 20(3) has been rendered impotent as a means for safeguarding persons against coercion to give evidence — a feature that continues to remain prominent in the criminal process across India.
I hope that reading the paper convince you of the same.
Showing the history and context surrounding Kathi Kalu Oghad is an exercise not done purely out of academic interest. This approach suggests that the judicial compromises in Oghad were probably designed as a stop-gap sensing an imminent change in the law on policing, with reform projects in many states moving at a good pace. Instead, the 1962 War came and brought with it an Emergency, consigning those reform-efforts to the waste-basket of history. The compromises that made sense to those eleven Justices in August 1961, do not make sense today in 2019, and are the primary reason why Article 20(3) has been rendered impotent as a means for safeguarding persons against coercion to give evidence — a feature that continues to remain prominent in the criminal process across India.
I hope that reading the paper convince you of the same.
No comments:
Post a Comment