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Exposing Fundamental Conlifcts Between Narco Analysis and the Self Incrimination Doctrine

Exposing Fundamental Conlifcts Between Narco Analysis and the Self Incrimination Doctrine

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Published by Gautam Swarup

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Published by: Gautam Swarup on Sep 05, 2010
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11/22/2013

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ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS – BLENDING THE MUCH AWAITED 
GAUTAM SWARUP NALSAR UNIVERSITY OF LAW3-4-761 BARKATPURAHYDERABAD – 500027swarupsgautam@gmail.comPHONE: +91 9866074793
 
SELF INCRIMINATION DOCTRINE AND THE RIGHT TO SILENCEThe right against ‘Self Incrimination’ when it applies is an absolute right and is subjectto no exceptions.
1
 A review of this right leads us to the traditional reliance of the Stateon confessions as most convenient in getting criminal convictions. A very fine line wasto be drawn to limit the power of the State in attempting to acquire such incriminatingconfessions and prevent abuse of its undisputed power in course of the same. Suchabuse has been observed over the years with the police and investigating agenciesresorting to third degree methods in extracting information from the accused. Torturinga person to extract information from him has been resorted to by law enforcementagencies as a convenient, fast and direct method of investigation to bypass theexpensive and arduous processes of lengthy investigation.
2
The line to be drawn by thecourts was in the form of the ‘Right against Self Incrimination’; in general, this doctrinestates that
‘no person, accused of any offence, shall be compelled to be a witnessagainst himself’.
1
Kenworthey Bilz,
“Self incrimination doctrine is dead; Long live self incrimination doctrine:Confessions, Scientific evidence and the anxieties of the Liberal State”
, 1
st
ed. (2006), p.36: The author argues that ambiguities relating to the doctrine arise of the nature the fact situation and about theconditions that will trigger its protection.
 
In
 Fischer v. United States
425 U.S 391, 400, it was held thatthe United States’ Fifth Amendment which affords the protection of ‘Self Incrimination’ cannot beremoved by showing reasonableness. Reasonableness does not make for an exception to this protection. The Supreme Court of India in
State of Bombay v. Kalu Kathi Onghad and Ors
AIR 1961SC 1861: (1962) Bom LR 240 : 1961 Cri LJ 856
 
held that while the scope of the protection afforded by Art. 20(3) is open to interpretation, the provision as a whole has no exceptions to it. Theinterpretations here are based solely on technicalities and the spirit behind the inclusion of this principle in the interests of efficient criminal jurisprudence.
The Right against Self Incrimination is flexible only because our courts have refused to clearly answer all the questions afforded by it; and whenthis court has done so, changes in science and technology have thrown open new areas of confusionregarding this right. This does not reduce in any measure the effect of the protection offered by Article20(3).
 
2
M. Sivananda Reddy,
20/11/2008
at 
07:30 p.m: The author discussesthe history of narco analysis and other scientific methods and how the former was in prevalence andhas been replaced by the latter.
 
2
ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS: BLENDINGTHE MUCH AWAITED
 
This right was afforded by the courts as a common law protection to the accused, inconsonance with the principles of an adversarial system of jurisprudence. The State isvastly superior to an individual in terms of resources and the power to prosecute. Theaim of this system is to attempt to place the individual and the state on an equal footingduring trial. The mid-18
th
and mid-19
th
centuries’ criminal trials saw the origins of this privilege and other tools to the accused such as the ‘beyond-reasonable-doubt’ and‘burden proof on the prosecution’ doctrines which equipped him with political libertiesthat could be used to defend himself in trial against the State, in a way minimizing therelative disadvantage individual defendants would face compared to the vast trialresources of the State.
“A sovereign State… has no right to compel a sovereignindividual to surrender his right to self defense”.
3
 
This privilege of 
Self Incrimination
limits the power of the State to acquire and present evidence ‘through’ the accusedhimself in the interests of his autonomy and privacy; it thus interferes with the State’sability to control crime and maintain order in pursuance of the same interests. Todaythese interests are seen as fundamental in acting as a check against rapidly growinggovernment power. It enables the maintenance of human privacy and the observance of civilized standards of criminal jurisprudence. The major features of this privilege are:1.The accused is presumed to be innocent and the State has to make a case of  prosecution independent of his involvement in the trial.2.That it is for the prosecution to establish his guilt.3.That the accused need not make any statement against his will.
4
This privilege is also known as the
right to remain silent;
in essence barring coercionand other forms of duress in the State’s endeavour of criminal prosecution. Thisrepresents a form of the ‘Liberty – Order’ debate and the nature of the privilege affordsno exact idea as to placing a balance between the competing interests of State order andindividual liberties unlike various other rights. Modern jurisprudence has sought to place such a balance.The Mallimath committee on Criminal Justice Reforms on examination of theinquisitorial system followed in France, Germany and other continental countries
3
Langbien,
“The Privilege and Common Law”, p.83-84:
tries to bring the idea of Abe fortas’s argumentin favour of adversarialism proposing
‘two equals meeting in battle’ 
.
 
4
M.P.Jain,
“Constitution of India”, 7 
th
ed. (2006), p. 1244.
3
ARTICLE 20(3) OF THE CONSTITUTION OF INDIA AND NARCO ANALYSIS: BLENDINGTHE MUCH AWAITED

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