Diluting the Right to Silence: A Postscript

For those who missed it, Sregurupriya made a powerful critique of the recent Supreme Court decision in Prahlad v. State of Rajasthan [Crl. Appeal 1794-96 of 2017, decided on 14.11.2018], where a three Justices' bench upheld a murder conviction because the defendant failed to convincingly explain the incriminating circumstances in the case. Sregurupriya argued that the decision gravely dilutes the right to silence, constitutionally guaranteed to defendants under Article 20(3) which protects against compelled self-incrimination. In this short postscript, I offer two, very loosely related, points. First, I question the continued relevance of the statutory provision that allows for this judicial questioning of the defendant - Section 313 of the Criminal Procedure Code [Cr.P.C.] 1973. Second, I suggest that the right to silence was already extremely diluted in India, with the need for a relook starting much before the 313 stage which was the focus in Prahlad.

Do We Still Need Section 313 Cr.P.C.?

Let me make a brief detour to recount the ordinary trial procedure for offences punishable with more than two years imprisonment. After the court frames charges, the prosecution is asked to furnish its evidence wherein witnesses are called and documents / materials are exhibited. Once the prosecution has closed its case, we enter the Section 313 Cr.P.C. phase - where the judge, with the help of prosecutor and defence counsel, poses questions to the defendant who is required to answer them, even if only to tell the court "I do not remember" or "I do not know". 

This seems decidedly wrong. What about the defendant's constitutional right to silence, and all the rhetoric about the presumption of innocence with the prosecution shouldering the burden of proof? Section 313 Cr.P.C. is, purportedly, intended to support all of this by giving an opportunity to the defendant to explain the incriminating facts without swearing on oath. It is nothing more than actualising the great principle of giving the person a right to be heard - audi alteram partem [See, pages 45-46 of the 154th Law Commission Report (Vol. 1)]. Since the law treats the Section 313 Cr.P.C. statement as evidence, it means the court can rely on this explanation as well. As Prahlad illustrated, that reliance is clearly not restricted to acquittals alone.

The contradiction at the heart of this justification should be obvious: Why do courts need to call on explanations from defendants if they are presumed to be innocent until guilt is established beyond reasonable doubt, especially since defendants can take the stand and give the evidence themselves? There, I think, lies an important truth: Section 313 Cr.P.C. has been around from times when defendants had no right to give evidence. A verbatim provision was present as Section 342 in the 1898 Cr.P.C., and under that Code defendants had no right to testify up till the mid 1950s. In that setting, something like a 313 statement made sense as defendants had no other recourse to address potentially bogus theories of the prosecution. Once we confer upon defendants the right to speak at trial, the formerly benevolent provision begins to assume a more sinister role. 

As Sregurupriya illustrated in her post, Supreme Court decisions have repeatedly told trial courts to not use the Section 313 Cr.P.C. statement to fill gaps in the prosecution case, nor to draw adverse inferences against the defendant based on answers in that statement. What does that tell us? It shows that despite persistent reminders from the highest Court, trial court judges can't help but act like human beings: It's only natural to expect an innocent person to explain away circumstances and those guilty to remain quiet. Which is why scholars have also persistently reminded us that the entire idea of a right to silence is counterintuitive to most people. To put it bluntly, you can't tell judges that they can make defendants answer their questions and then expect the same judges to be selective in their appreciation of the responses. Section 313 Cr.P.C., thus, will always hinder the right to silence, if not in law then in practice. Maybe it's time to reconsider its utility.

Whither the Right to Silence?

News reported that India's Central Bureau of Investigation [CBI], the premier investigating agency [recently discussed here], successfully petitioned the trial court to extend the pretrial custodial remand of Christian Michel - at the centre of a big financial conspiracy case. The reason? Because of his "non-cooperation" and his "evasive answers" in the interrogation. For those unfamiliar with the Indian criminal process, it might take two seconds to digest this: in a system purportedly conferring a constitutional right to silence, how can pretrial custody be extended for "non-cooperation" with police investigations? And yet, that is the reality, common for defendants across the spectrum. 

Having experienced this reality first-hand for some time now, the decision in Prahlad did not come as a surprise to me. Even on the matter of judicial policy and precedent, Prahlad is only the newest page in a long, long chapter of Supreme Court decisions that have positively denuded the right to silence of any substance. Allow me to demonstrate this with a simple example. Imagine that the Delhi Police lodge a First Information Report alleging that Person X stole a car, thus committed theft and arrest her. Also imagine that a Customs Officer arrests Person Y on allegations of smuggling gold into India. Today, Person Y will have no right to silence till the start of trial. Replace the customs offence with any offence which is not investigated by the police and you get the same result, despite being arrested. Why? Because of the Supreme Court's consistent position to require a "formal" accusation, the absence of which is sufficient to ignore all substance — a position that I have strongly criticised earlier [see here, here, and here].

If the stakeholders in the Indian criminal process really do wish to honour the right to silence, then a lot of the existing law must be reconsidered. Section 313 and statements at trial will come much later in that process, which first requires taking a long hard look at how investigations are conducted. This is not something radical — India has been crying out for "scientific" investigations since the mid-1950s. But with each passing year, as decisions like Prahlad are rendered which further diminish the scope of a right to silence, the guarantee of Article 20(3) might well be rendered an ignoble epitaph for our transformative Constitution itself.  

Wither the Right against Self-Incrimination?

(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.