Interrogation of suspects and accused is critical in any criminal investigation in order to draw the facts from them. Most tactics, many of that were based on kind of torture which were utilized by investigating authorities to seek data from convicted and the suspected since ancient times. New ways of lie detection have emerged with the advancement of technology which eliminated the police’s use of “third-degree torture.” However, legal problems have been raised about the legality of tests such as Narco Analysis, with some supporting it based on legal considerations and others dismissing it as a flagrant breach of constitutional obligations. (Rathore) The legal principle of “Nemo Tenetur Seipsum Accusare” declares that no one should be forced to offer any evidence, statement, or answer that shows him guilty of any crime. (Nandidni Sathpathy v P. L. Dani, 1978) This ancient legal principle, sometimes known as the “Right to Silence,” is talked about by both Article 20 (3) of the Indian Constitution and the Code of Criminal Procedure. The Identification of Prisoners Act is a long-standing law that provides for the collection of photographs and measurements of offenders. (Manikam V State, 2009) By far, there has been no legal conflict between the aforementioned legislation. However, the Criminal Procedure (Identification) Act of 2022, which supersedes the Identification of Prisoners Act of 1920, has sparked a slew of controversies and debates. It has been argued that the act requires an individual to provide measurements that include not only “finger impressions”, “palm-print impressions”, “footprint impressions”, “photographs”, but also “iris” and “retina scans”, “physical and biological samples”, and “behavioral attributes”, which could violate a person’s right against self-incrimination that is ensured by Article 20(3) of the Indian Constitution. The present article argues that the Criminal procedure Act 2022 must be repealed as it does conflict with the right against self-Incrimination.
One could argue, citing various decisions such as Kathu Kalu’s case, where the court stated that being a “witness” could be equatable to presenting proof in the sense of making oral or written statements, but in the broader sense of the expression, giving a “thumb impression” or impression of “palm” or “foot” or “finger” or “specimen writing” or trying to expose a part of the body by an accused person with the intention of identification are not included in the expression “to be a witness.” Even in Shallendra Nath Sinha v. The State, the Calcutta High Court Division Bench concluded that an order for the accused to produce “specimen handwriting” did not amount to compelling the accused to give testimony and distinguished Sharma’s Case since it involved a search warrant for the production of documents. Also, in Ram Swarup v. State and Others, the Allahabad High Court held that because it would not be a document provided for examination by the court, writing obtained by the court under Section 73 of the Evidence Act would not be regarded as “evidence,” and the court’s directive under Section 73 would not be affected by article 20. (3). (Srivastava, 1996)
But the main problem with this act is that terminologies like “measurements” and “behavioral attributes” leave a lot of space for interpretation, and it also doesn’t clarify what a “biological sample” implies, which may be “Narco analysis”, “Polygraph test”, and “Brain Electrical Activation Profile”. The assumption behind “polygraph testing” is that when a subject lies in response to a question, he or she produces physiological responses that differ from those that occur naturally. Several types of equipment are attached to the subject during the “polygraph examination” to measure and record the subject’s physiological responses. The examiner then reviews these results, analyses them, and assesses the subject’s replies’ believability. “Polygraph examinations” make use of instruments such as “cardiographs”, “pneumographs”, “cardio-cuffs”, and “sensitive electrodes”. They monitor things like “respiration”, “blood pressure”, “blood flow”, “pulse”, and “galvanic skin resistance”. The truthfulness or falsity of the subject is determined by relying on physiological response records. These tests breach the right against self-incrimination because we know that if an accused gives evidence willingly or under a request, he cannot utilize article 20(3), but in this case, the evidence is extracted involuntarily and the accused has no choice to refuse according to the new act. (Sethi & Agarwal, 2021)
The right against self-incrimination was established to protect the integrity of the legal system, prevent false evidence, and ensure fairness. Imposing such measures on the accused would negate the purpose while also raising questions about the fairness of our proceedings. However, it has been emphasized numerous times that the victims’ statements made during the test are not utilized against them, but rather to aid the investigation. (Jain, 2019) But this issue was brought before in the case of Selvi v. State of Karnataka, the Supreme Court dismissed the High Court’s reliance on the “utility”, “reliability”, and “validity” of “narco-analysis tests” and other such tests as means of criminal investigation. The Court determined that forcing an individual to undergo “narco-analysis tests”, “polygraph tests”, and “brain-mapping” constitutes a necessary compulsion. The subject is unable to decide whether or not to answer a question because the responses provided during these tests are not given intentionally and willingly, resulting in “testimonial compulsion”, which is protected under Article 20. (3). The “narco-analysis test,” according to the Court, is a harsh and inhumane treatment that violates an individual’s “right to privacy” and “right against self-incrimination”, and that courts cannot allow the “narco-analysis test” to be administered against the individual’s consent. (Saxena, 2019)
A person can use protection under the right against self-incrimination when the three ingredients of Article 20(3) are satisfied i.e., i) the person must be accused of an offense ii) Compulsion to be a witness, iii) Compulsion resulting in giving evidence against himself. The Criminal Procedure Act violates the right against self-incrimination since it requires the accused to be a witness, which entails giving evidence. Because firstly this act also applies only to those who are guilty of an offense punishable under any law in force at the time or arrested in connection with an offense punishable under any law in force at the day, he must allow a police officer or a prison official to take his measurement. (Criminal Procedure Act, 2022)
Secondly, this act compels the person to be a witness because anyone arrested under any law is required to give his measurements as demanded without any choice. After all, if a person who is compelled to enable measurements to be taken under this act opposes or refuses, the police officer or jail officer may take the measurements lawfully (Criminal Procedure Act, 2022) and this objection to or refusal to allow measures to be taken under this Act would be prosecuted under Section 186 of the Indian Penal Code. (Criminal Procedure Act, 2022)
Thirdly, because the clause is so ambiguous and unclear about what tests would be utilized, the police may threaten the accused with the potential of performing tests like “polygraph tests” to find out the specifics and compel him to be a witness. And such compulsion will result in the person being interrogated giving evidence against himself since the person being interrogated may make self-incriminating remarks due to fears that these procedures will extract the truth. Such behavior on the side of investigators is more likely to occur when the person being interrogated is unaware of his or her legal rights or is otherwise intimidated. Because this statute does not specify terms like “measurements,” “biological sample,” and “behavioral attributes,” the police may end up using tests like “polygraph tests”, as described above. And we know from Selvi v. State of Karnataka that it amounts to testimonial compulsion because the answers given during these examinations are not given knowingly and voluntarily. As a result, it satisfies the three requirements while violating the right to self-incrimination.
Another issue is that all private information, such as someone’s “physical” and “biological samples”, “behavioral characteristics”, “finger impressions”, “iris” and “retina scans”, and so on, is logged and stored in a central database, which is a violation of someone’s privacy from every viewpoint. The act of 2022 further stipulates that data maintained in a national database by the National Crime Records Bureau (NCRB) can be utilized to prove or disprove a case not only in the case in which an accused is now being tried, but in any past, future, or parallel case. The record of measures will be kept in digital or electronic form for “seventy-five” years from the date of collection, which raises concerns not only about it being used for self-incrimination in the future but also about the right to privacy. To illustrate, suppose Mr. A is accused of robbery and is placed in judicial custody; under the Act of 2022, his measurements will be taken and stored in the central database. Assume Mr. A was charged with another offense 30 years later. The result of this is that if Mr. A submits such information for a crime committed today, the investigating officer will use that information to construct a case 30 years later as well. In other words, Mr. A’s information will be used against him to prove his guilt.
In India, not only the constitution but also some CRPC provisions, including Sec 161(2), highlight a suspect’s right to remain silent and that he or she shouldn’t be coerced to give any evidence that could lead to punitive measures against him. “No individual shall be compelled to be a witness against oneself in any criminal proceeding,” the 5th Amendment of the US Constitution states. The preceding right has obtained a broad scope after being construed by the courts in various decisions. In civil and criminal proceedings, the right to self-incrimination applies to both witnesses and parties. It covers both “oral” and “written” evidence, as well as any “disclosures”, such as answers, that support a “criminal conviction” or provide a part of the network of proof needed for a prosecution. It is also a basic aspect in the UK that no one suspected of a crime should be forced to uncover “documents” or “items” that incriminate themselves. Except in a few limited circumstances, no witness, whether party or outsider should be forced to respond to any question or provide any document that could subject the witness (or the witness’s spouse) to “criminal prosecution”, “penalty”, or “forfeiture”. The purpose of this privilege is to motivate people to give testimony while also protecting them from damage or undue difficulty as a result of doing so. (Saxena, 2019)
Other violations by the act include violation of Article 14 of the Constitution by delegating too many powers to the executive in two ways: first, “by giving the executive broad rule-making powers with no guidance”, and second, “by empowering functionaries” like “police” and “prison officers” to decide who they can oblige to give measurements. Furthermore, the act’s section 3 does not anticipate all members of the class of people enlisted giving their measures. Only those individuals who police or prison authorities believe are obliged to furnish the measures will be forced to do so. Because there is no provision outlining any norms or principles by which such a requirement may be evaluated, it is safe to assume that the act is arbitrary in its sight. (JAVED, 2022) Only in the case of a biological sample, an exception is made. The exemption states that a person may decline to provide such samples unless he is arrested for a crime: (i) “against a woman or a child”, or (ii) “with a minimum sentence of “seven years” in jail”. The first exemption is broad in scope. For example, it could contain a theft case involving a woman. A rule like this would contradict the equality of law between someone who stole something from a man and someone who stole something from a woman. (“The Criminal Procedure (Identification) Bill”, 2022)
The right against self-incrimination is important to ensuring freedom from police overabundance and torment and providing personal and biometric information under duress and/or without authorization is arbitrary and erroneous. The act of 2022 requires record-keeping, which violates the right to privacy. Instead of empowering such obvious attacks on fundamental rights and privileges, Parliament should enact legislation to protect them. It is more necessary to invest in investigating technology and tools. Sensitizing investigating authorities to better and more efficient methods of investigation is more fruitful than trampling on the fundamental rights of the accused.
In conclusion, the act does not significantly contribute to the goal of working on the sufficiency and efficacy of investigation and enhancing State Machinery but rather increases managerial weights while also infringing on Fundamental rights. Although the Criminal Procedure Bill has now become an act, this provision is quite ambiguous and subject to misuse, so it should be repealed or terms like “measurements,” “behavioral attributes,” and “Biological sample” should be more specific to avoid misuse as they can be used by the state to collect self-incriminating evidence against any arrested, convicted, or detained person without their consent. As previously discussed, this violates the right against self-incrimination guaranteed by Article 20(3) of the Constitution. (Hasan, 2022)
- Rathore, D. (n.d.). Article 20 (3) of constitution of india and Narco Analysis. Legal Service India. Retrieved May 15, 2022, from https://www.legalserviceindia.com/article/l375-Article-20-(3)-Of-Constitution-of-India-And-Narco-Analysis.html
- Nandidni Sathpathy v P. L. Dani (Supreme Court 1978).
- Srivastava, U. (1996). IMMUNITY FROM SELF INCRIMINATION UNDER ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA. Ijtr.nic.in. Retrieved 15 May 2022, from http://ijtr.nic.in/articles/art19.pdf.
- Sethi, R., & Agarwal, N. (2021). RIGHT AGAINST SELF-INCRIMINATION: A DETAILED STUDY OF THE CONSTITUTIONAL PROTECTION. JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL], 5(3). Retrieved 15 May 2022, from.
- Jain, Y. (2019). The right to remain silent: A case commentary on Smt. Selvi v State of Karnataka – iPleaders. iPleaders. Retrieved 15 May 2022, from https://blog.ipleaders.in/right-remain-silent-case-commentary-smt-selvi-v-state-karnataka/.
- Saxena, S. (2019). Right against Self-incrimination under Article 20(3) of the Constitution. iPleaders. Retrieved 15 May 2022, from https://blog.ipleaders.in/right-against-self-incrimination/.
- Criminal Procedure Act (2022).
- JAVED, S. (2022). Unravelling concerns over the Criminal Procedure (Identification) Bill, 2022. The Leaflet. Retrieved 15 May 2022, from https://theleaflet.in/unravelling-concerns-over-the-criminal-procedure-identification-bill-2022/.
- The Criminal Procedure (Identification) Bill, 2022. PRS Legislative Research. (2022). Retrieved 15 May 2022, from https://prsindia.org/billtrack/the-criminal-procedure-identification-bill-2022.
- Hasan, Z. (2022). Explainer: Why the Criminal Procedure (Identification) Act Is Being Challenged in Court. The Wire. Retrieved 15 May 2022, from https://thewire.in/law/explainer-why-the-criminal-procedure-identification-act-is-being-challenged-in-court.