Paper Update: Confronting the Violence Within

At the start of the month, a bench of the Supreme Court dismissed a plea for anticipatory bail filed by a person accused of corruption [Devinder Kumar Bansal v. State of Punjab (2025 INSC 320)]. The person in question was accused of asking for bribes to do audit work, and now sought relief from court. For the uninitiated, 'anticipatory bail' is a remedy where a person goes to court claiming he entertains a reasonable apprehension of arrest in connection with a case, and if the court agrees, then it can pass orders directing that in the event of his arrest the police should release him on bail. 

Even a mildly critical reading reveals the problem. If all we need is reasonable apprehension that there may be an arrest, where does that leave the police's power of arrest and the consequential 'benefits' that arrests and custodial questioning are seen to bring to the pursuit of justice? It can bring it to an absolute standstill. Which is why no court since the introduction of anticipatory bail has read the provision strictly, and the law since 1973 is a study in seesawing judicial opinions on how to exercise this great discretionary power that the criminal procedure code had conferred upon judges. 

Devinder Kumar Bansal falls in the bucket of opinion which warrants extreme circumspection in the grant of anticipatory bail. It notes that the relief "can be granted only in exceptional circumstances where the court is prime facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous." Note that none of this is statutory criteria by the way — something made even more interesting by the fact that in Pakistan, law specifically made testing the falsity of allegations something a court must test while deciding anticipatory bail pleas. 

What makes Devinder Kumar Bansal even more interesting, and allows me to use it as a hook to shamelessly plug a small essay that has come in a volume titled Police Violence in India, is a one-line observation that it made in passing, stating that "if liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. [Emphasis supplied]" No matter the precepts that we should not turn persons into tools for achieving some unknown larger aims — such as a corruption free society — the observation is deeply revealing of the consistent tendency of courts to emphasise upon custody as a means to secure justice. Especially during investigations. 

In an essay titled 'Confronting the Violence Within', I've taken up this tendency of courts to make interpretive choices that privilege custodial interrogation and questioning in criminal cases, which only entrenches the importance of the custodial setting within the law. And courts conveniently want to only focus our attention on the good parts — custodial interrogation is more 'elicitation oriented' as they say — while turning a blind eye to what makes the custodial setting so unique for the investigator — its inherently violent nature. The paper looks at this tendency through two specific areas — law on the right against compelled self-incrimination, and law on anticipatory bail. While Devinder Kumar Bansal has been published after the paper and is relevant to its arguments from an anticipatory bail perspective, even for the law on self-incrimination there have been interesting developments, as the Supreme Court in granting some reliefs to Ranveer Allahabadia specifically directed him to be questioned without his lawyer present. The direction is not unique and in line with previous decisions by the Supreme Court which have consistently sought to remove any intermediary from the custodial setting to ensure its 'uniqueness' — again, without ever squaring up to face the violence which is what makes the custodial setting unique.

If the courts themselves places such a premium on the need for custodial interrogation, how can we expect custodial violence which is an inherently inseparable part of the process, to vanish? 

If liberty is to be denied to an accused to ensure corruption free society, then the courts should not hesitate in denying such liberty. Where overwhelming considerations in the nature aforesaid require denial of anticipatory bail, it has to be denied. It is altogether a different thing to say that once the investigation is over and charge-sheet is filed, the court may consider to grant regular bail to a public servant - accused of indulging in corruption

Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner accused for grant of anticipatory bail and there is no frivolity in the prosecution.

 

Mobile Phones and Criminal Investigations: The Karnataka HC Judgment in Virendra Khanna

(This post connects to a primer available on SSRN which deals with these issues, which is available here)

Earlier this month, a Single Judge Bench of the Karnataka High Court delivered the judgment in Virendra Khanna v. State of Karnataka and Anr. [W.P. No. 11759/2020 (Decided on 12.03.2021)]. The decision is likely to prove the first in a series of cases in the near future, in which courts grapple with issues posed to criminal investigations by mobile phones and similar digital devices. These issues require courts to not only consider the scope of constitutional protections but also interpret existing provisions of the Criminal Procedure Code 1973 ["Cr.P.C."] and Information Technology Act 2000 ["IT Act"]. 

In this post, I argue that the conclusions arrived at in Virendra Khanna — in respect of the applicability of the fundamental right against self-incrimination, of the Cr.P.C. search and seizure provisions, and of the fundamental right to privacy, all in context of accessing digital devices — are incorrect. The interpretation that is endorsed by the High Court is also deeply problematic, as in the face of advancing technology, it seeks to restrict rather than enhance the contours of our constitutional rights to equip individuals with the means to protect themselves against unlawful incursions into enjoyment of one's personal liberty by state agencies. The post does not engage with the guidelines provided by the Court, or its reiteration of the law laid down in Selvi [(2010) 7 SCC 263] that compelled administration of a polygraph test was is illegal.

The Facts and Issues Before the Court

The Petitioner was a person caught in the crosshairs of law enforcement agencies, and his mobile phone was allegedly important to advance the investigation into offences. In September 2020, the police went before the trial court asking for court orders to direct the Petitioner to unlock his mobile phone and grant access to email accounts, as the Petitioner had refused to cooperate. The court duly passed this direction and it appears the Petitioner complied. Then, the police moved another application before the trial court, this time asking for directions that the Petitioner be subjected to a polygraph test to confirm the mobile / email passwords, as it appeared that the Petitioner had been lying about the same during investigation. The court allowed this application as well and directed the polygraph tests be conducted — orders which, according to the Petitioner, were passed without ever giving him an opportunity to be heard and without considering if he had indeed consented to undergoing such tests. The Petitioner challenged this order and the consequent direction to undergo a polygraph test.

Following the judgment in Selvi, no court can direct any accused person to undergo polygraph tests unless such person consented to the same, and if seen from that perspective Virendra Khanna was an open-and-shut case requiring that the order be set aside. But the High Court was more indulgent with the legal issues placed before it and considered questions that lay beneath the surface as well. Out of these, I focus on the following three points taken up in the judgment:

• What is the specific legal regime under which police can seek access to a digital device for pursuing its investigation?
• What is the interplay between Article 20(3) and directions issued to an accused person for unlocking a digital device? 
• What are the legal limits, if any, upon law enforcement agencies while they "explore" the contents of a digital device for investigation purposes?

Issue 1: The Relevant Legal Regime 

The High Court first considered whether there was any legal basis to root the actions of police officers in accessing a digital device for purposes of investigation. It observed that an officer could always ask an accused to open the device, but to direct compliance required some basis in law. This legal basis was found in the existing search and seizure regime of the Cr.P.C., concluding that the regime — which it admitted only applied to a "place" — was also applicable for accessing a digital device. Accordingly, the police would have to apply for search warrants to access a phone under Sections 93 / 94 of the Cr.P.C., and in emergent circumstances they could dispense with this requirement and act under Section 165 Cr.P.C. The obligations of the accused would be the same in both scenarios, i.e. assist in providing access to any locked space as provided by Section 100 Cr.P.C. 

Extending the existing search and seizure regimes from the realm of physical space to that of electronic / digital space is a path that many countries are taking. Erecting a need for judicial supervision by requiring search warrants to be sought before digital devices can be accessed helps redress the imbalance of power in such situations and also helps to keep law enforcement activity tailored to the needs of investigation and avoid roving inquiries into personal data. Viewed in the abstract, then, the choice of the Court does not seem problematic at all but a pragmatic solution. 

The problems only arise when we move beyond the realm of abstraction into practice. The Indian search and seizure regime does not mandatorily require search warrants; instead, police liberally use their powers under the "emergent circumstances" exception to conduct searches. The result is a situation where privacy is at the mercy of police. This is not to say that the search warrant regime itself, when invoked, supplies the necessary bulwark. The Cr.P.C. 1973 adopted wholesale the search regime that was present in the old British codes, the avowed purpose of which was to maximise scope of interference with personal liberty and not to safeguard it. Under this antiquated regime, general warrants allowing a roving search at a place are the rule, and a court may "if it thinks fit" restrict the scope of this search expedition.  

As noted above, this regime was designed to maximise state interests. Importing this regime in 1973 was a dubious decision. Applying it in 2021 to digital devices which are nothing short of portable vaults full of sensitive personal data, is a disastrous one. 

Issue 2: The Right against Self-Incrimination and Unlocking Mobile Phones

The High Court held that compelling a person to give up a password and / or biometrics to unlock a digital device did not attract the fundamental right against compelled self-incrimination as it was not the kind of evidence protected by the prohibition: providing a password did not disclose anything incriminating, and it was not the "testimonial compulsion" which Article 20(3) sought to protect. As a result, adverse inferences could be drawn if a person refused to comply with court orders. This analysis was coupled with portraying disaster if the view was taken to its logical consequence, which according to court: 

"would result in a chaotic situation: no blood sample could be taken; no sample for DNA analysis could be taken; no handwriting samples can be taken; no other body sample for the purpose of DNA analysis could be taken; no search of a house or office could be undertaken; the data of a laptop or computer or server cannot be accessed by the investigating officer; offences like cyber crime could never be investigated; offences like pornography, child pornography which are more often than not, on the internet, could not be investigated."

Both these conclusions of the High Court are, unfortunately, incorrect. The legal position is misstated, and the approach on the factual aspects is deeply misguided and troubling.

The High Court called upon the "testimonial compulsion" concept in its reasoning and concluded that the furnishing of a password / biometrics was not of this nature, but was akin to "physical evidence". This binary logic was engrafted upon Article 20(3) by the Supreme Court in Kathi Kalu Oghad [AIR 1961 SC 1808], according to which there is a kind of material called "physical evidence" which falls outside the scope of the protection and persons can be compelled to furnish it. This includes blood samples, hair samples, or even asking an accused to wear specific clothing. Then, there is "testimonial compulsion" which is the material Article 20(3) covers, which traditionally makes one think of confessions. What is the basis behind this distinction? "Physical evidence" is only relevant for purposes of comparison and so by itself it is not incriminating — police take the sample to compare it with other material. "Testimonial compulsion" is incriminating by itself, and conveys to the police information that is the direct product of testimony. The key then is whether the testimonial act — be it speaking, or making gestures — conveys information that can help furnish a link in the chain of evidence, by its own merit.

Is giving the password / biometrics really not conveying any information? Is it of no value as testimony by itself? Surely, the answer is no. At its most basic formulation, the testimonial value in having an accused person unlock the phone lies in the many inferences that can be drawn from this act. Not only does it lend support to the inference that the accused owns the phone, but also to the inference that the accused was in control of its contents. And where the contents of this device are what are potentially incriminatory, surely this is as obvious a link in the chain of evidence as any. 

On a more specific point, while the Court relied upon Kathi Kalu Oghad, it seemingly ignored the decision in Shyamlal Mohanlal Choksi [AIR 1965 SC 1251]. Otherwise, the High Court could not have observed that giving a password is not testimonial compulsion because "it is only in the nature of a direction to produce a document." After all, Shyamlal specifically held that a direction of this nature could not be issued to an accused person as it would run contrary to Article 20(3).    

Since the High Court was incorrect in comparing the giving of a password with giving of bodily samples and the like, it is already obvious that the "heavens will fall" approach to the consequences of concluding an Article 20(3) violation are an exaggeration unfounded in the law. But let's ignore that for a minute, and take up the assertion on its face value. What it reveals is a troubling state of affairs where the High Court assumes that cooperation by an accused is necessary to secure any or all of these obviously legitimate investigative aims. This cannot be further from the truth and, in fact, the Court itself alludes to this when at a later point in the decision it recommends that police proceed to "hack" a device to gain access where the accused refuses to cooperate. What is troubling here is that this kind of piggybacking upon an accused to secure investigations is what a protection against self-incrimination, in its myriad forms, was designed to reduce. Technological advances have made it more possible for police to do their job independently and have helped to usher in a situation where investigations are not subject to the sweet will of an accused, and at the same time are free of any potential taints of accused persons being assaulted to secure information. It is unfortunate that the High Court endorsed a view which still sought to place the accused as the focal point of a police investigation, without appreciating the well-established perils of this approach.  

Issue 3: The Right to Privacy

The High Court in Virendra Khanna was keenly aware of the potential invasion of one's privacy at stake considering how much data is found on our digital devices. It acknowledged that once police gain access to a device, even if for a specific reason, that often enables full-blown access to all aspects to a person's life. After heading in this direction, the High Court simply noted that the use of any such data during the course of investigations would not amount to a violation of the right to privacy, as it was protected under the exceptions carved out. At the same time, the High Court observed that unlawful disclosures of this material with third parties could certainly amount to an actionable wrong.

With all due respect, the High Court's analysis of the privacy issues barely scratched the surface and, in effect, simply placed the cart before the horse. Yes, a criminal investigation can certainly require invasions of the right to privacy that are otherwise prohibited, but to confer a blanket protection over all all kinds of activities that may be done under the pretext of an investigation effectively extinguishes the fundamental right altogether. Let's take an example. The police allege that an accused spoke to other conspirators over email and this correspondence is evidence to show the existence of an agreement to commit a crime. This is as genuine a law enforcement need as can be justifying going inside an email account and one's private chats. 

According to Virendra Khanna, when faced with this situation a court should support untrammelled access for police agencies to the email account. Such an approach is hardly the only way out and actually asks courts to forsake their responsibility of crafting a proportionate intrusion to best safeguard law enforcement interests without sacrificing one's privacy altogether. Rather than confer a carte blanche upon the police, an approach which took privacy seriously — the respect a fundamental right deserves — would have a court consider if the police could demonstrate with reasonable particularity what they hoped to find or if it was just a hunch and, importantly, create a time-limit so that the individual is not forever beholden to police snooping through her inbox. 

The seemingly benign way in which the High Court viewed potential breaches of the right to privacy can be seen not only from how it viewed state interests as an unquestionable concept, but also in how it failed to address what remedies may lie in the event of a breach. As mentioned above, the High Court did note that disclosures to third parties were possible and could constitute a breach, but it neither offered nor suggested a remedy to the aggrieved accused in this regard. What's worse, the High Court in its support for getting search warrants endorsed the regular position that the fruits of an illegal search could still be admissible as evidence. It failed to engage with the small but significant line of recent cases where another High Court took strong exception to searches being conducted without following procedures, noted that this amounted to a breach of the right to privacy, and excluded material gathered pursuant to search from being considered as evidence. 

Conclusion: Setting Back the Clock, by Some Measure

On its face, the petition in Virendra Khanna offered a straightforward issue — administering polygraph test without consent. The High Court looked past this simplicity to address the underlying legal questions which are becoming critical in their relevance to law enforcement needs and ordinary life. That it chose to do so and contributed to the discourse by offering clear answers to some questions was a welcome move. The problem is that the answers themselves are severely wanting, either proceeding on an incorrect legal basis or drawing exaggerated hypothetical conclusions. 

How this judgment is treated by the other benches in the Karnataka High Court, the state police, as well as other courts, will be interesting to see. 

Mobile Phones and Criminal Investigations

I've put out a short primer / paper (made with friends) explaining the basics about mobile phones and criminal investigations. This is meant to help convey the legal issues that arise in context of the following: (i) seizure of a phone by police; (ii) police compelling the person to unlock the phone, and; (iii) police accessing the contents of a phone.

Broadly, the takeaways are:

• Police have broad powers of search and seizure which they can use to seize a mobile phone during an investigation, which is treated just like any other object;
• There is greater ambiguity in the law that might authorise regular police, and courts, to compel individuals to provide passcodes and / or open locked devices by using biometric ID;
• There are no prior limits on the use of the seized phone and the kinds of content that might be accessed;  
• There are legal limits present under statutes that serve as avenues to restrain these powers. The misuse / abuse of these powers also threatens possible violations of the fundamental rights to privacy and that against compelled self-incrimination;
• However, the value of legal tools to contest seizure of mobile phones and / or any compulsion used by police in getting them unlocked, is often lost due to the situational dynamics in which the law operates. The power differential between police and a witness / suspect inside a police station is simply too much to bear and results in most persons unlocking their devices. The myriad difficulties in holding police officers to account, and quickly, only makes this worse. 

To put it simply: The police can take away almost anyone's phone if they think it might be useful to the investigation, see anything inside it without accountability, and the law confers potentially useful rights against compelled testimony which often don't matter inside the confines of a police station. 

At a time when a mobile phone is a close substitute for real life, the many problems posed by the status quo are not too difficult to imagine. For starters, the problems from ordinary life will obviously be replicated: investigating agencies will have to draw inferences from conversations and thus might impute criminal intent where none existed. 

But, given the massive amounts of information floating on a mobile phone, they bring their unique problems to the table. For most people, real life is never squeaky clean, and so it is safe to imagine that their phones reflect this reality. So by having relaxed laws that permit easy seizure of mobile phones, and having almost no legally defined limits on what the police can do with these devices once they've seized them, we create a situation where the police can go on a roving and fishing inquiry to find leverage against a person to either make her say things against her will. 

The document suggests some avenues for reform, but there are no short-term fixes to what is only a reflection of a broader, systemic, malaise. Let me explain how.

Sir James Fitzjames Stephen thought that having a law that excludes confessions made to the police was necessary in India because for them "it is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence." Amazingly, the law regulating investigations has changed little from Stephen's time. The past 150 years have taught us that without drastically improving the resources for policing, mere legal rules can do little to stop coerced confessions / statements and improve the quality of investigations. 

A police force that is short on money and staff, but pressed for time to deliver results, is always going to find shortcuts to give the public an answer. The risks of a fallout are also minimal, since any eventual unravelling of a case only happens many years after an investigation is completed, by which time nobody is around to blame. It is perhaps inevitable for the situation to get worse now, as mobile phones have meant that police don't need that proverbial red pepper anymore.

Can Constitutional Courts Really Not Do Much About Police Brutality?

India's constitutional courts have won deserving acclaim for intervening to save forests, put curbs on pollution, fearlessly address corruption in government, usher in prison reforms, drive governments to pass anti-lynching laws, and strike down patently unconstitutional laws and practices to enable the expression of individual freedom. So to read a news article reporting that a bench of the Indian Supreme Court observed that "courts can't do much" in response to a request that it take notice of the widespread police brutality in Delhi this past weekend came as a rude shock. 

The gamut of examples that I began with can be multiplied almost endlessly and, the longer that list grows the more inane the ultimate relief becomes. What must be flagged, though, is that a number of remarkable interventions also include efforts by the same Supreme Court to help usher in police reforms to curtail police brutality, leading a foreign scholar to comment that the Supreme Court has been the only agent of change in this arena among all branches of State. This glowing praise came while referring to landmark decisions of the Supreme Court in Joginder Kumar and D.K. Basu, which took steps to curtail the vast discretion that police officers have on using their coercive powers. If we shift the focus to High Courts, we find that the Delhi High Court has been building on these foundations through orders such as those passed in Amandeep Johar and Court on its Own Motion, which prescribe detailed guidelines that police must comply with before effecting arrests. 

So, let's be very clear: Indian constitutional courts can do a lot about police brutality and have already been doing a fair bit, when they choose to. In the multiple cases mentioned above, the judiciary chose to do something. Does that mean that the orders in Joginder Kumar or D.K. Basu are unwaveringly obeyed by the police forces? Of course not. But the very pronouncement of such an order empowers a citizen, because it confers upon her the right to invoke an authority against state oppression that she did not have before that moment. A Court order is, therefore, as much an act of faith as it is an act of governance. Today, when petitioners knocked on the two Courts' doors seeking that they intervene after a day of maddening violence, the Justices spoke and expressed sympathy, but they chose not to empower citizens and restore their faith in law, at a time when this balm was sorely needed. 

Surely, when the courts choose to face the facts, in due course if not urgently, they will remember that a lot can be done about police brutality. But rather than simply go for low-hanging fruit by passing, say, another judgment regulating arrests and preaching reporting requirements to curb the flouting of rules, it's time to take things to the next level and really face the monsters lurking within our criminal justice system. And trust me, there are several such Frankensteins in the system — principles that are birthed by judicial orders which have ended up having a life of their own, singularly destroying the very fabric of individual freedom and personal liberty that a constitutional order aspires to secure. 

The first of these monsters is the lip-service paid to the idea of legal assistance within the criminal justice system. To prevent a lawyer-police nexus, the Supreme Court, in Nandini Satpathy, went ahead and spoke harshly against the idea of permitting a lawyer within the confines of a police station. The 2008 amendments to the Criminal Procedure Code gave accused persons the right to request for a lawyer during questioning, but this was still made subject to police consent [Section 41-D Cr.P.C.]. 

When police violence is so deeply entrenched in society, how does it make sense to have a law that, as a default position, leaves individuals at the mercy of police officers and restricts their ability to seek legal assistance? Besides the innumerable false confessions, what such a regime contributes to is situations like the night of December 15 when, after all the horrible violence, lawyers were simply refused entry into the police stations which prevented any determination of who had been detained, let alone the opportunity to offer legal assistance.

The second of these monsters is the very idea that the individual accused or suspect is an equal in her dealings with the police. Let's unpack this a bit. It is stating the obvious to say that the police are the most visible agents of state power, and the very sight of an angry policeman can send a person shaking in her boots. This unique ability to inspire fear is why the law treats both statements by witnesses and confessions by suspects / accused persons with immense skepticism when made to police officers [Section 161 Cr.P.C.; Section 25 IEA].

But at the same time, our legal system permits courts to rely upon these statements and confessions where they consequently lead to the recovery of any material [Section 27, IEA]. The incentive this regime creates for "planting" evidence and "making" persons sing the police's tune is obvious, especially when coupled with the fact that within the confines of a police station, a person is entirely at the mercy of the police officer. But here's the thing: Rather than carry on the legal logic of skepticism to which confessions are subjected and extend it to interrogations at large, the law instead reverses the logic to hold that in the context of "mere questioning" by the police, the law will not even remotely suggest that a person could have been coerced into giving a statement. Instead, it considers this an exchange between equals. The law, thus, willingly ignores the hours of waiting, the aggressive posturing and tone, the repeated badgering, and all coercion, except that which leaves visible marks on the person, to sustain a fiction of voluntariness around the statement by an accused person. This is designed to sanitise our doubts about the purportedly unbelievable recoveries of material that the police might secure on the strength of the statement. All this is done under the gaze of the Indian Constitution that secures a fundamental right against self-incrimination.

In a way, isn't the same logic being perpetuated by the Supreme Court right now, when it asks both sides to maintain peace before it takes up petitions that are seeking intervention to check violence? Is it not insidious to even remotely suggest equality between the police who are tasked with enforcing the state's monopoly of violence with a band of students, and selectively singling out the latter by making them responsible for peace and suggesting that they can't bully the court? Bully how? By the strength of being beaten mercilessly by countless lathi blows and responding by pelting stones in the face of tear gas shells? By being singled out and being held responsible for damage to public property that occurred and was arguably the fallout of violent madness all around? 

To repeat, then: Our constitutional courts can do a lot when it comes to police brutality, much like many other problematic areas of life in India. Besides the tangible change it brings to society, these acts of intervention carry enormous symbolic value, reinforcing a belief in the rule of law in times when there is very little reason for keeping the faith. But at the end of the day, all judicial intervention is an expression of choice. Thus, unlike other days when to hear a matter of "national importance" the Supreme Court's doors were open even on a holiday without any petition being filed, today, courts chose to refuse an urgent hearing of pleas made by hundreds who were hoping for a restoration of faith after facing a night of horror, even though a lot could have been done.


POST SCRIPT: After the Supreme Court refused any urgent hearing in the matter and indicated that the High Court should be approached first, several petitions came to be filed before the Delhi High Court in relation to incidents surrounding the alleged police violence suffered by students. After hearing the arguments for several hours in a packed courtroom, the Delhi High Court today refused to grant any of the interim reliefs sought by the Petitioners. This included reliefs such as appointing an independent fact-finding commission, protecting students against arrest, passing orders to preserve CCTV footage, and providing funds for students to foot their medical bills after being brutally beaten up by persons wearing uniform. On top of which it fixed the next date of hearing in February 2020.

Compare this with what happened outside Tis Hazari Courts in Delhi at the start of November, 2019. After heated arguments between some lawyers and policemen, the scuffle became violent and led to destruction of public property (burning of a police vehicle no less) and police officers opening fire on some advocates. The very next day, on a court holiday, the Delhi High Court entertained a petition that sought orders to protect lawyers from any arrests etc. by police, and also for appointing an independent commission to inquire into the incident. The requests were granted. In spite of this there continued to be reported incidents of sporadic violence by lawyers / people dressed as lawyers across the district courts of Delhi, where the victims of this violence were often police officials but also litigants. There were no observations rebuking the lawyers or asking them to stop the rioting before courts took any actions. In fact, the Court refused government requests to modify the initial orders granting protection from arrests.

Justice is deemed to have been done in both cases.

[The post was amended on 19.12.2019 to add the post script]

Article Update — The Right Against Self-Incrimination in India: The Compelling Case of Kathi Kalu Oghad

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.  

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.

The published version is available here. This might be paywalled, and so a draft, slightly different from the final paper, is available here

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.  

Diluting the Right to Silence? The Supreme Court's Decision in Prahlad v Rajasthan

(I am delighted to present a guest post by Ms. Sregurupriya Ayappan, a Fourth Year student of the B.A. LL.B. (Hons.) program at NLSIU, Bangalore)

Recently, a three Justices’ bench of the Supreme Court rendered its decision in Prahlad v. State of Rajasthan [2018 SCC OnLine SC 2548] that could potentially be a dangerous precedent for the years to come. The facts, simply put, were this: The accused was alleged to have raped and murdered an eight-year old girl child. The child was last seen with him as he purchased sweets for her from a shop, shortly after which she went missing and her corpse was found next morning. The Trial Court convicted the accused for offences under Section 302 of the Indian Penal Code [IPC] and Section 4 of the Protection of Children from Sexual Offences Act 2012 [POCSO]; a verdict confirmed by the High Court, an appeal against which ended up before the Supreme Court. 

Lack of Evidence and a Specious Leap in Reasoning 

The evidence was purely circumstantial and the prosecution could establish little beyond the fact that the accused had, at some point on the same day the child went missing, taken her to a shop and bought her sweets [Para 5]. The medical examination revealed 5 injuries which, the medical expert stated on cross-examination, were “simple in nature and they are likely to be caused by falling.” [Para 11]. 

Based on this, the Supreme Court acquitted the accused of the POCSO charges as it found no “reliable material” to conclude otherwise [Para 11]. At the same time though, the Court found “ample material” against the accused to sustain a conviction for murder. What was this ample material? It was not anything that the prosecution offered as evidence. Instead, the Court found support in a different source – the statement of an accused tendered without oath under Section 313 of the Criminal Procedure Code 1973 [Cr.P.C.]: 

“No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.” [Para 9, emphasis mine] 

In this post, I posit that this treatment by the Court of the statement under Section 313 Cr.P.C. has effectively equated silence of the accused to guilt and is problematic on several grounds. 

What is Section 313 Cr.P.C.? 

According to the legislative scheme of the provision, the accused can be examined at any stage of a trial or inquiry. All the incriminating material gathered against him are shown and he is given an opportunity to provide explanations and put forth his defence. Crucially, the accused is not put on oath at any point during this examination. He shall also not be liable to punishment for refusing to answer or even providing false answers. The answers may then be produced as evidence of record by either prosecution or defence and may be taken into consideration. In other words, the statute itself expressly provides for the right of accused to remain silent. Nowhere does it state that the accused is “expected to come out with an explanation”, as the Court in Prahlad required. [Para 9] 

Judicial Bolstering of Section 313 

Courts too have interpreted Section 313 Cr.P.C. in line with the legislative intent and have even strengthened the rights of the accused under this provision. They have clarified that the statement under Section 313 Cr.P.C. is not substantive evidence and is merely an aid for the Court to examine the evidence on record. It can neither be made the sole basis for conviction, nor can it be used to complete the missing links in the prosecution’s evidence. [Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722, Para 36] It has also beneficially interpreted it to observe that a court is bound to examine whether the defence, if any, put forth by the accused is a plausible narrative given the evidence on record. [M. Abbas v. State of Kerala, (2001) 10 SCC 103, Para 10] Further, courts have also read in the ‘rule against adverse influences’ and stated that no adverse inferences can be drawn from the silence of the accused in the examination under this provision. This has in fact been considered conjunctively with Article 20(3) of the Indian Constitution and is, hence, a facet of the fundamental right against self-incrimination. [Selvi v. State of Karnataka, (2010) 7 SCC 263, Paras 84, 126] This position has been reiterated time and again in a catena of cases. It is then evident that if even the answers of accused cannot be used as evidence against him, it is inconceivable that the silence of the accused, when he is constitutionally and statutorily guaranteed that rights, can be relied on to concoct a narrative that convicts him. 

Undoing ‘Trite’ Law and the Rights of Accused in a Single Blow 

As we can see, the object of the examination under Section 313 Cr.P.C. is to benefit the accused by providing him an opportunity to defend himself. He has the right to remain silent and the only way in which the provision can be used against the accused is if he has made a statement supporting the prosecution which the court may then use as aid while appreciating the evidence. The Court in Prahlad, however, has: (i) abridged the fundamental right to remain silence and reversed the burden of proof, (ii) overlooked the important fact that the accused is not put on oath when he is subjected to inquiry under this provision and (iii) finally, has exacerbated the divide between those who can and cannot afford good counsel. 

Firstly, under Indian law, the accused has a right to silence and can remain silent through the entire process and furnish no evidence of his own. It is the duty of the prosecution to discharge the burden of proving that the accused is guilty beyond reasonable doubt. The prosecution must “stand or fall on its own legs and cannot derive any strength from the weakness of the defence.” [Sharad Birdhi Chand Sarda v. State Of Maharashtra, (1984) SCC 4 116] This is provided for in Section 101 of the Indian Evidence Act, 1872 [IEA]. Mere silence cannot shift the onus upon the accused even under Section 106, IEA unless the prosecution has first established a case against him. If not, the benefit of doubt must be given to the accused due to the presumption of innocence which works in favour. By drawing adverse inferences from the silence during the examination under Section 313 Cr.P.C., the Court in Prahlad has decreased the scope of the right against self-discrimination and is effectively asking the accused to prove his innocence. 

Secondly, the statement under Section 313 Cr.P.C. is taken without administration of oath to the accused. Oath is an integral element for the statement to be relied on as evidence since it puts the maker of the statement on notice that s/he can be prosecuted for perjury. This increases the reliability of the evidence considerably whereas in this provision, the inverse is true given the statutory leeway to lie. Further, the accused is not subject to cross-examination for the statement made under Section 313 Cr.P.C.. This effectively means that two out of the three safeguards, the last being demeanor, which the Court can rely upon to ascertain the truth is absent in the case of a Section 313 Cr.P.C. statement. It is for this reason that the Supreme Court has itself observed that this statement “cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement.” [Sujit Biswas v. State of Assam, (2013) 12 SCC 406, Para 12] 

Lastly, how advantageously the accused uses the opportunity afforded to him in Section 313 Cr.P.C. and what statements he makes to point out his innocence depends on whether he has access to effective counsel. Given the large number of cases in which accused with poor means have to rely on disinterested and negligent legal aid lawyers, more often than not, they squander away this right – either by remaining silent where they have a cogent alternative explanation for the evidence on record, or by making incriminatory statements when they should have exercised this right to silence. It is then incumbent upon the Court to beneficially interpret Section 313 Cr.P.C. so that the accused is ensured a fair trial instead of using it as a tool to implicate the potentially innocent. 

Reena Hazarika and the Precedent Problem 

In stark contrast to the disappointing decision in Prahlad, a two Justices’ bench of the Court in Reena Hazarika v. State of Assam [2018 SCC OnLine SC 2281] interpreted Section 313 Cr.P.C. in consonance with the precedents and legislative intent I discussed above. In this case, a woman was had allegedly murdered her husband and the evidence of record, entirely circumstantial, only established the presence of the accused with the deceased the night he died. The Court relied on the statement of the accused under Section 313 Cr.P.C. which presented a plausible alternative and explained her presence with the deceased to acquit her. The Court reiterated that Section 313 Cr.P.C. enshrined the constitutional right to fair trial under Article 21. It was faithful to the text of the provision as it reiterated that the accused could put forth a defence under Section 313 Cr.P.C. at any stage of the trial, even after the prosecution evidence is closed. It went on to state that if the defence of the accused is not considered at all by the Court, then the conviction itself stands vitiated. [Para 16] 

Unfortunately, Reena Hazarika and the many cases before which have safeguarded the rights of the accused are rendered by smaller benches and could stand overruled by Prahlad. Even Selvi, also by a 3 Justices’ bench, does not come to our rescue given the lack of judicial clarity regarding what would be considered precedent when there are conflicting decisions rendered by co-equal benches (discussed here). 

Conclusion 

As we can see, the ramifications that this decision could potentially have given its interpretation of Section 313 Cr.P.C. are grave. Not only has Prahlad transferred the burden of proof from the prosecution to the accused and violated the principle of presumption of innocence, but it has gone against the text of the provision concerned itself and abridged the right against self-incrimination under Article 20(3) of the Constitution. 

It bodes ill that Prahlad may not be considered per incuriam and could be the law binding on all courts as stipulated by Article 141 of the Constitution. What is even more ominous is that this trend of doing away with the ‘rule against adverse inferences’ in the Supreme Court seems likely to continue with Justice Lokur recently making remarks similar to the reasoning in Prahlad in a matter reserved for judgment. This could result in yet another 3 Justices’ bench decision affirming the dilution of the right against self-incrimination under Section 313 Cr.P.C.

The Shifting Sands of Adversarial and Inquisitorial Systems in India

In his Hamlyn Lecture titled The Common Law in India delivered in 1960, MC Setalvad argued that the Indian criminal process contained several similarities with the British system. For him, India had adopted the Adversary System of Trial (page 45-47), which was a core precept of the Common Law. He went ahead to observe: "Equally rigorous is the application in India of the rule of Common Law which is said to put justice before truth. The decision, whether in a civil or a criminal trial, has to be rendered solely on the evidence put forward by the tribunal." To recap, this Adversarial system is in contrast with the Inquisitorial system that was a hallmark of Continental Europe. There, the judge has a far more active role to play towards eliciting the truth rather than merely administer justice.

Contrast his observations with those in the Order dated 26.08.2016 in CC No. 01/2016 titled 'CBI v Gondwana Ispat Ltd & Ors' passed by the Court of the Special Judge appointed for the 'Coal-Block Allocation Scam Cases'. Throughout this 27 page order, the Court is at pains to remind us that "the ultimate quest of a trial is to ascertain truth and this journey of ascertaining the truth cannot be defeated merely on the whims and fancies of an accused." This rhetoric is in place to support logic relied upon by the Court to conclude that the fundamental right against self-incrimination under Article 20(3) of the Constitution is not available during the process of admission-denial in a criminal trial. Though the Special Judge does not invoke the term 'inquisitorial', the extract would snugly fit into the court orders from Continental Europe where countries adopt the inquisitorial method.

So, what is it to be for India, the adversarial or inquisitorial? The Criminal Procedure Code 1973 [Cr.P.C.] and the Indian Evidence Act 1872 [IEA] offer our criminal process a convenient shape-shifting ability. So the only answer is, well, either that India has a unique method that combines bits of both worlds. This intermixing is quite thorough and can be found in the investigation stage as well. When the police are investigating the courts are not supposed to interfere and decisions since the Privy Council verdict in Nazir Ahmed [AIR 1945 PC 18] offer support for this view. But together with this we have Section 156(3) in the Cr.P.C. which empowers a Magistrate to direct the police to investigate. This was extended to include a power to monitor investigations by the Supreme Court in Sakiri Vasu [(2008) 2 SCC 409] to further bump the shift away from an Adversarial System. One might argue that the views of Mr Setlavad were restricted to trials and so this is an unfair criticism. But even in trials, we have devices such as Section 165 IEA, which allow a court to ask any question from a witness or summon any document, regardless or relevance. Since this had always been on the statute-book, we can rightly question whether Sakiri Vasu is nothing but a restatement of inquisitorial tendencies that have always been around.

The Coal-Block Allocation Scam Cases
If an outside observer, akin to Professor Hart's companion throughout The Concept of Law, came to India and only looked at the trials before the Court of the Special Judge appointed for the Coal-Block Allocation Scam Cases then I am quite certain she would go home with a view that we are steeped in the inquisitorial tradition. The proceedings have explicitly and / or impliedly carried further the views of decisions such as Sakiri Vasu to bring about some very interesting consequences. As I have argued above, this is something that is bound to happen owing to the inherently ambiguous stance in our laws, and isn't a problem in itself. Ambiguity in law generally nourishes problems though, and it has so happened on a few occasions in these proceedings. I focus on two of these here, one from the realm of investigations and the other based on the trial.

First, is the device adopted by the Court of refusing to accept Chargesheets / Closure Reports filed by the CBI if it thinks certain areas have not been covered. Effectively, the Court tells the CBI to further investigate and then come back with a fresh report. In some cases, the Court has rejected multiple Closure Reports before it took cognizance once the CBI had filed a Chargesheet that it deemed acceptable (just search "coal closure reject cbi" in Google). Given that the same court is going to hear the case, issues of bias naturally arise. If the court thrice rejected the CBI view that certain persons had not committed any offences, would a trial before the same court not give rise to the appearance of a reasonable apprehension that the court is biased against the accused persons and they would be denied a fair hearing? In my opinion it would certainly give rise to a reasonable apprehension, warranting the case be tried by a different judge. In fact, this problem is also present when a Magistrate rejects a Closure Report to summons the accused persons for trial. These proceedings can perhaps be seen as nothing but the logical conclusion of that process in a world where Sakiri Vasu allows Magistrates to monitor investigations.

Second, is the use of Section 294 Cr.P.C. by the Court, which was referenced at the beginning of this post. This provision concerns the process of admission-denial of documents, and was the issue at hand in Gondwana Ispat. It was argued there that accused persons could not be forced to make any statement under Section 294 Cr.P.C. as it contravenes the guarantee against self-incrimination. The Court held otherwise and concluded that Section 294 Cr.P.C. consciously excluded a right to silence for accused persons. The Court reasoned that allowing an accused to remain silent would defeat the very purpose of Section 294 Cr.P.C., and the Legislature was aware of Article 20(3) but intended to exclude it from this area. This conclusion was largely driven by drawing an analogy with Section 313 Cr.P.C. (which deals with the statement of an accused, given without oath), which expressly speaks of an accused choosing to remain silent when faced with a question. This argument is incorrect for it holds a statute can be interpreted to exclude the application of Part III of the Constitution. This is contrary to the very idea of Part III. Whether or not there are specific allusions to a right to silence within the Cr.P.C., it nonetheless remains subservient to Article 20 of the Constitution.

The other logic employed by the Special Court is more interesting for this post - that allowing an accused to remain silent and possibly adopt different stands would not only "lead to an unending trial but it will rather cause impediment in the course of justice as it will be extremely difficult for the Court to render justice based on truth." I have read this a few times and yet, I cannot appreciate the genesis of this concern. When, if ever, would an accused willingly adopt multiple stands in a case in respect of evidence? But assuming such an example does exist, and the accused is happily changing stands as frequently as players change football clubs, from where is the Court deriving an obligation on the accused to help render its justice based on truth? Historically, an accused was not a competent witness till the late 19th, early 20th century. And even then, it is only if the accused chooses to come in the witness box. Given that answers under Section 294 Cr.P.C. are also made under oath, the Court has done indirectly what could not have been done directly.

What's in a Name?
A lot, clearly. MC Setalvad was not entirely accurate to state that India wholeheartedly adopted the Adversarial System. On a deeper scrutiny, it is clear that our criminal process has always had traces of both, the Adversarial and Inquisitorial Systems. Such an equivocal position is far from ideal, and the problems with having backdoors are being realised in the litigation that is currently taking place in the Coal-Block Allocation Scam cases, and to an extent occurred before in the 2G Scam as well. There is one common element between these settings, and that is the pervasive involvement of the political with the judicial branch of the State. Could it be that the court is more willing to resort to its inquisitorial powers because it is pressurised to deliver results? We may never know. What we do know is that in its efforts to deliver truth-based justice, the judiciary is clearly cutting far too many corners. The 2G Scam cases saw the rights of accused persons being traded for nebulous values of 'public interest' and 'speedy justice'. These have been further employed in the Coal-Block Allocation Scam hearings to achieve new results. As things stand, all of these issues are pending before the Supreme Court which means nothing is settled. But, with the speed at which cases are being heard before the Special Court in Patiala House, it may be that 'speedy justice' comes at a cost too dear.

(Disclaimer: The author has assisted in proceedings arising out of the Coal Block Allocation Scam cases, arguing for the accused)

Voice Samples and Self-Incrimination

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. 

Guest Post: Voice Spectography and Self-Incrimination

(In this guest post, Mr. Gautam Bhatia offers his take on the recent decision by the Gujarat High Court in Devani v State, which considered the issues posed by using voice spectrography during investigations. This essay has been cross-posted with permission from the Indian Constitutional Law and Philosophy Blog) 

On the 18th of January, in Devani vs State of Gujarat, a single judge of the Gujarat High Court handed down an interesting ruling on the constitutionality and legality of voice spectrography as an investigative technique during criminal proceedings. The writ petitioner had been charged with offences under the Prevention of Corruption Act. The main piece of evidence was a telephone conversation between the petitioner and the person from whom he had allegedly demanded a bribe. The Investigating Agency wanted to subject the Petitioner to a voice spectrography test, so that it could compare the two voice samples. The Petitioner challenged this.

The Court’s decision was delivered in the context of a split opinion by a two-judge bench of the Supreme Court, delivered in 2012, in Ritesh Sinha vs State of U.P. Justice Aftab Alam had held that in the absence of express statutory authorisation, investigative agencies could not compel an accused to undergo a voice spectrography test. Justice Ranjana Desai had disagreed. While the two judges were in apparent agreement over the proposition that voice spectrography did not violate the right against self-incrimination under Article 20(3) of the Constitution, in view of the disagreement between them, they referred the case for resolution by a three-judge bench. This bench has not yet been constituted.

In Devani, the Gujarat High Court agreed with Justice Alam and disagreed with Justice Desai, holding that the investigating authorities could not legally compel an accused to undergo a voice spectrography test. The Court based its judgment on statutory interpretation, finding no warrant for the taking of voice samples under the existing criminal procedural framework. However, it also found that the taking of voice samples did not violate Article 20(3) of the Constitution. It is to this finding that we turn first.

Article 20(3)

The Court’s examination of the self-incrimination issue took place – as it had to – in the context of the Supreme Court’s 2010 decision in Selvi vs State (previously, on this blog, we have discussed Selvi and the right against self-incrimination under the Indian Constitution in some detail). Readers will recall that Selvi – a three-judge decision of the Supreme Court – had clarified some of the conceptual underpinnings of the right against self-incrimination that had been left open in the previous judgment of Kathi Kalu Oghad. The question in this case was how the Gujarat High Court would interpret Selvi, and how it would thread the needle between Kathi Kalu Oghad, which had held the taking of fingerprints and handwriting samples was consistent with Article 20(3), and Selvi, which had held that narco-analysis, brain mapping, and the polygraph test, were not. In other words, what was the deeper conceptual basis that underpinned the spectrum between fingerprints and narco-analysis, and where did voice spectrography fall on this spectrum?

The Gujarat High Court’s reading of Selvi was as follows: Selvi, it held, had prohibited the compulsory psychiatric examination of the accused. However, a voice spectrography test – which only involved the subject speaking something into a recorder, and subsequent analysis of his voice patterns – did not come within the ambit of “psychiatric examination“. Consequently, voice spectrography was not hit by the Selvi bar, and was therefore constitutional (paragraph 44).

It is submitted, with respect, that the High Court’s reading of Selvi is unnecessarily narrow, and is not borne out by the decision and reasoning in that case. Recall that, in the last analysis, in Selvi, the intellectual foundation of the Court’s judgment was the idea of mental privacy. In paragraph 160 of that judgment, the Court held:

“Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact.” (Para 160)

On, in other words, the right against self-incrimination (among other things) was aimed at protecting the mental inviolability of an accused during the course of a criminal proceeding.

The Court in Selvi went on to note:

“The compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.”

And:

“While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the `right to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes… so far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty’ under Article 21. Hence, our understanding of the `right to privacy’ should account for its intersection with Article 20(3)… a conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking.An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self-incrimination.” (Paras 190 – 193)

Consequently, Selvi went much further than simply prohibiting compelled “psychiatric examinations”. It located its decision within the framework of personal autonomy, the right to remain silent, and mental privacy.

However, it is precisely within this context that the issue of voice spectrography attains an almost intractable difficulty. If you look at the issue from one perspective, it seems clear that voice spectrography falls squarely within the Selvi prohibition. The mind is centrally involved in the act of speaking, and if “mental privacy” is to be understood in this sense, compelling a person to speak, and then using his voice to determine other relevant facts in a criminal proceeding, is certainly an invasion of mental privacy. Compelling a person to speak certainly violates their choice between speaking and remaining silent. It is certainly an interference with her “mental processes“. And finally, it does seem that what happens in a voice spectrography test is very similar to polygraph tests and brain mapping – bodily stimuli are mapped and measured. The fact that in one case, it is stimuli from the brain, and in another, voice patterns, ought not to make a difference, because – as discussed above – speaking is a direct result of mental activity.

Examined another way, however, the issue is much more complex. While speaking is a result of brain activity, the crucial thing to note in a voice spectrography test is that it is not about what the speaker is saying – that is, not about the content of her voice – but about her voice as a bodily, physical phenomenon. In this sense, voice spectrography seems much closer to fingerprints, blood samples, and DNA, than it does to narco-analysis. In a similar sense, it seems a stretch to say that the examiner is deriving knowledge from the subject’s mind. Although speaking is a result of a mental process, given that the brain is, ultimately, responsible for keeping the human body alive, every other bodily function can, ultimately, be traced back to the brain. Here, again, given that the content of what the speaker says is not at issue, it does seem that voice samples are physical phenomena, in the same sense that blood or DNA is.

What this reveals, I suggest, is that ultimately, Selvi’s neat distinction between the physical and mental, between the taking of physical samples (blood, DNA, hair swabs, fingerprints) on the one hand, and interference with mental processes and invasion of mental privacy on the other, breaks down on closer examination. It breaks down in cases such as voice spectrography, where the physical/mental binary simply loses its valence as an explanatory device.

As I had argued in my essay on Selvi, the distinction between the physical and mental in that case was drawn in an attempt to strike a balance between two models of the criminal process: the crime-control model, which seeks to remove obstacles from investigating agencies in their attempt to discover the “truth”, and the due process model, which places great stress on the fundamental rights of the accused. By limiting the right against self-incrimination under Article 20(3) to invasions of mental privacy, the Court attempted to balance the two models. A case like Devani suggests that more work needs to be done to achieve a clear and coherent balance.

Statutory Analysis

Although not strictly within the scope of this blog, a word ought to be said about the second part of the judgment. The Court undertakes a thorough analysis of laws such as the Identification of Prisoners Act, the Code of Criminal Procedure, and the Evidence Act, all of which allow for various situations – and methods – by which investigating agencies and judges can act upon the body of the accused (compelling her to yield blood samples, DNA, sputum, hair swabs, fingerprints etc.) The Court finds that nowhere is there an express authorisation to take a voice sample, and nor can such an authorisation be read into the statutes. Consequently – and despite its misgivings on this issue as a matter of policy – the Court holds that, under the existing legal regime, compelled voice spectrography is not permissible. The Court’s analysis – from paragraphs 47 to 100 – repays close study, not simply because it is an excellent piece of statutory interpretation, but also because the Court subordinates its own sense of what might be desirable as a matter of legal policy to an autonomous reading of the existing law as it stands, and refuses to step an inch beyond the law. This is a phenomenon that has been falling distressingly out of fashion in recent years.