“„Protection against Self-Incrimination’ as a Fundamental Right in India: A

Critical Appraisal”
*Aqa Raza
**Pankaj Kumar Pandey
I
Introduction
“Nemo debet prodere se ipsum.”1

The right against self-incrimination finds its earliest embodiment in the medieval law of the
Roman church in the Latin maxim ‗Nemon tenetur seipsum accusare‘ which means that „No
man is obliged to accuse himself‟. The right gradually evolved in common law through
protests against the inquisitorial and manifestly unjust methods of interrogation of accused
persons, back in the middles ages in England.2 This right is one of the fundamental canons of
British System of criminal jurisprudence which the United States of America adopted from
the British legal system and incorporated it in their Constitution as “no person shall be
compelled in any case to be a witness against himself”3, and thereafter in the Indian
Constitution.4 The Indian Constitution5 provides for protection to an accused against self-
incrimination under compulsion through Article 20(3) – „No person accused of an offence
shall be compelled to be a witness against himself‟. In 1978, under the Constitution (Fourty-
fourth Amendment) Act, 1978,6 the Article 20 of the Constitution of India was granted a non-
derogable status i.e. the state has no legal basis, even in a state of emergency, to refuse to
honour this right. This is a testimony to the importance it has been accorded in our
Constitution.7

From the very first years of our Constitution, a certain ambiguity on the question of what
evidence was accorded protection, and apparent conflicts between Article 20(3) and

* Student of LL. M. (Final year), Faculty of Law, Aligarh Muslim University, Aligarh (Uttar Pradesh,
India), email: aqaraza@outlook.com; Contact: +91 7417037864.
** LL. M., UGC-NET, Department of Law- Aligarh Muslim University, Aligarh (Uttar Pradesh, India);
e-mail: advpankaj1860@gmail.com.
1
Translated from the Latin maxim “no man is bound to betray himself”.
2
180th Report of the Law Commission of India, Article 20(3) the Constitution of India and the Right to Silence,
3, (2002).
3
Fifth Amendment to the Constitution of the United States of America, 1789.
4
Jain, M. P.- Indian Constitutional Law, 5th edition, Reprint 2007, pp. 1064-1065.
5
This right of protection against self-incrimination in Indian Constitution is available only to the accused and
not to the witnesses. Whereas this right is available not only to the accused but also to the witnesses in the U. S.
and the English Law.
6
Sec. 40 of the Constitution (Forty-fourth Amendment) Act, 1978.
7
Sections 5, 6 and 342 of the Indian Oaths Act, 1969 are based on this right.

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Electronic copy available at: http://ssrn.com/abstract=2661172

provisions of the Indian Evidence Act, 1872 have prevailed.8 This resulted in judgements
with apparent imbalance between the right against self-incrimination in Article 20(3) and the
necessity to facilitate collection of evidence by investigating trial agencies. These judgements
were referred to the Apex Court, which clubbed them and referred them to an eleven-judge
bench. The resultant judgement is the landmark judgment of State of Bombay v. Kathi Kalu
Oghad9 which has made a defining contribution to the case law on the matter as it stands
today.

M. P. Sharma v. Satish Chandra10 was the last significant ruling on the interpretation of Part
III of the Constitution soon after independence. Following M.P. Sharma, several cases were
referred to the Apex Court. Questions addressed were essentially of interpretation of what
constitutes ‗to be a witness against himself‘ with respect to the circumstances defining
compulsion.

The researchers in this paper seek to analyse the concept of protection against self-
incrimination as a Constitutional right in India in various perspective. The rationale of Article
20(3) has been discussed under Part II. Part III covers the provision contained under Article
20(3) in the Constitutional perspective constituting the fundamental right. The judicial
interpretation and approach has been discussed under Part IV. Part V and Part VI covers the
Narco-Analysis test and DNA testing that how far they suit to the spirit embedded beneath
the Article 20(3). Part VII emphasis on the self-incriminatory evidences and the social media
with the ending words under Part VIII.

II
The Rationale of Article 20(3)
―The exercise of the power to extract answers begets a forgetfulness of the just limitations
of that power.‖11

The right against self-incrimination was afforded by the courts in consonance with the
principles of an adversarial system of jurisprudence. The mid-18th and mid-19th centuries‘
criminal trials saw the origins of this privilege and other tools to the accused such as the
‗beyond-reasonable-doubt‘ and ‗burden of proof on the prosecution‘ doctrines which
equipped him with political liberties that could be used to defend himself in trial against the
State, in a way minimizing the relative disadvantage which the individual defendants would

8
State of Uttar Pradesh v. Deomen Upadhyaya, AIR 1960 SC 1125.
9
AIR 1961 SC 1808.
10
AIR 1954 SC 300.
11
Wigmore, Evidence 2264 (2nd edn, 1923) as cited in Fred Inbau, ―Self-Incrimination: what can a Accused
Person be compelled to do?”, 28(2) Journal of Criminal Law and Criminology 261, 264 (1937).

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Electronic copy available at: http://ssrn.com/abstract=2661172

face, as compared to the vast trial resources of the State.12

The rationale underlying the judicial provision against testimonial compulsion was well
recognized long before our Constitution came into existence. The cornerstone of the
protection against self-incrimination is best stated by the Court in Saunders v. United
Kingdom.13 This case explained that the right lies for the protection of the accused by the
improper compulsion of the authorities, thereby contributing to the avoidance of the
miscarriages of justice.14

It may be says that, ethics and reliability are the two pillars of the right against self-
incrimination. The ethical rationale for voluntariness addresses the need to protect the
accused from brutalization and torture by investigation agencies; the rationale is that if
involuntary statements were readily given weightage during trial, the investigators would
have a strong incentive to compel such statements, often through methods involving
coercion, threats, inducement or deception.15 Even if such involuntary statements are proved
to be true, the law should not incentivise the use of interrogation tactics that violate the
dignity and bodily integrity of the person being examined.16 This situation is considered as a
violation of basic human rights of life and limb. Hence, the right against self-incrimination
serves as a vital safeguard against torture and other ‗third-degree methods‘ that could be used
to elicit information. It serves as a check on police behaviour during the course of
investigation.

The exclusion of compelled testimony is important or investigators will be more inclined to

extract information through such compulsion routinely rather than through the more difficult
path of collecting independent evidence.17 Another concern behind the right against self-
incrimination seems to be protecting a wholly or partially innocent person from making a
false statement under stress and thereby needlessly reinforcing the needle of suspicion upon
him or her. Similarly for the guilty, the protection affords a shield from aggravating his or her
offense by misrepresentation or concealment of evidence. The accused is also shielded from
reading of motives into what evidence he or she might give.

There were several contrary views among the makers of the Constitution, but it was widely

12
Gautam Swarup, ―Narco Analysis and Article 20(3) of the Constitution of India: Blending the Much
Awaited” (2009), available at: http://works.bepress.com/gautam_swarup/2; Last retrieved on 20.05.2015.
13
(1997) 23 EHRR 313.
14
Ibid.
15
Alschuler, Albert W- A Peculiar Privilege in Historical Perspective: The Right to remain silent, Michigan
Law Review 94(8), 1995, pp. 2625-2627.
16
Selvi v. State of Karnataka, (2010) 7 SCC 263.
17
Ibid.

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accepted by those who devoted serious thought to it, that the easy path of procuring evidence,
oral or documentary, by compulsion from an accused would do more harm than good to the
administration of justice; it was felt that existence of this path would tend to discourage
investigators or prosecution to indulge in a diligent search for reliable independent evidence
and also dissuade them to exercise care while sifting through available evidence for the
ascertainment of truth.18 If law permitted evidence to be obtained by coercion, investigators
would never take up the onus of partaking in laborious investigation and prolonged
examination of other associated persons, material and documents. It has been rightly said that
the absence of the privilege against self-incrimination would incentivize those in charge of
the enforcement of the law ‗to sit comfortable in the shade rubbing red pepper into the devil‘s
eye rather than go about in the sun hunting up evidence.‘19

The privilege also serves the goal of reliability. 20 When a person suspected or accused of a
crime is compelled to testify on his/ her own behalf through methods involving coercion,
threats or inducements during the investigative stage, there is a higher likelihood of such
testimony being false or distorted out of sheer despair, anxiety and fear. Their mental status
may serve as an impetus to offer evidence in order to avoid the unpleasantness of the current
situation and complications that follow. Thus, involuntary statements from the accused may
amount to false testimony which is likely to mislead the judge and the prosecutor, thereby
impeding and vitiating the process of trial, and potentially leading to a miscarriage of justice
with erroneous and unjust convictions. Even during the investigative stage, false statements
are likely to cause delays and obstructions in the investigative efforts. Therefore, the privilege
ensures that investigation agencies do not take the easy path of ‗involuntary confessions‘ to
supplant the diligent route of meaningful investigations and that the reliability of the
testimony presented for trial is of a high order.

III
The Constitutional Provision- Article 20(3)
The provision relating to the self-incrimination is contained under Article 20(3) of the Indian
Constitution which reads as- “No person accused of any offence shall be compelled to be a
witness against himself.” The characteristics features of this provision are that the accused
need not to make any statement against his will as it is for the prosecution to establish his
guilt beyond all reasonable doubt and the accused is presumed to be innocent till proved
guilty.
18
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
19
Ibid.
20
Michigan v. Tucker, 417 US 433 (1974).

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This provision contains the following ingredients:
i. It is a right available to a person “accused of an offence21”.
ii. It is a protection against ―compulsion to be a witness‖.
iii. It is a protection against such ―compulsion‖ resulting in his giving evidence
―against himself‖.
i. Person accused of an offence
The privilege under this clause is only available to an accused i.e., a person against whom a
formal accusation relating to the commission of an offence has been levelled which in the
normal course may result in the prosecution. It is however not necessary, to avail the
privilege, that the actual trial or enquiry should have commenced before the court or tribunal.
Thus a person against whom the F.I.R. has been recorded by the police and investigation
ordered by the Magistrate, can claim the benefit of the protection. In order to avail the
protection available against self-incrimination, the person claiming the same should be one
―accused of an offence‖ at the time when he makes the statement. This means a person
against whom a formal accusation relating to commission of an offence has been levelled and
although actual trial may not have commenced yet, but may in normal course result in
prosecution22.

Thus in M. P. Sharma v. Satish Chandra,23 it was held that a person, whose name was
mentioned as an accused in the first information report by the police investigation was
ordered by the Magistrate, could claim the protection of this guarantee. The privilege in
Article 20(3) is undoubtedly available at the trial stage but is also available at the pre-trial
stage i.e. during police investigation if the person concerned can be regarded as an accused.
Even if his name is not mentioned in the FIR as an accused, it will not take him out of the
category. In America the right against self incrimination is not only available to accused but
also to the witness, but not under Indian laws. But in Nandini satpathey v. P. L. Dani24 It was
subsequently held that, the right extends to witness and accused alike, that the expression
'accused of any offence‘, must mean formally accused in ―praesenti not in future‖, that it
applies at every stage at which furnishing of information and collection of materials takes

21
Where evidence oral or circumstantial points to the guilt of a person and he is taken in custody and
interrogated on that basis, he becomes a person accused of an offence.
22
Raja Narayanlal Bansilal vs Maneck Phiroz Mistry, AIR 1961 SC 29.
23
AIR 1954 SC 300.
24
AIR 1978 SC 1025, Nandini Satpathy Former Chief Minister of Orissa against whom a case had been
registered under the Prevention of Corruption Act, was asked to appear before The Deputy Superintendent of
Police (Vigilance) for questioning. The Police wanted to interrogate her by giving her a string of questions in
writing. She refused to answer the questionnaire, on the grounds that it was a violation of her fundamental right
against self-incrimination.

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place, that the privilege extends not only to the deployment of the information obtained as
evidence in a criminal prosecution, but to the extraction of the information itself.

In Balasaheb v. State of Maharashtra,25 Court held that, a witness in a police case, who is
also an accused in complaint case about the same incident, cannot claim absolute immunity
from testifying in the police case on ground of Article 20(3). He may, however, refuse to
answer those questions which tend to incriminate him.

ii. Compulsion to be a witness

The application of Narco analysis test involves the fundamental question pertaining to
judicial matters and also to Human Rights. The legal position of applying this technique as an
investigative aid raises genuine issues like encroachment of an individual‘s rights, liberties
and freedom. In case of State Bombay v. Kathikalu,26 it must be shown that the accused was
compelled to make statement likely to be incriminative of himself. Compulsion means duress,
which includes threatening, beating or imprisonment of wife, parent or child of person. Thus
where the accused makes a confession without any inducement, threat or promise Article
20(3) does not apply.
The Court in State (Delhi Administration) v. Jagjit Singh,27 held that once an accused is
granted pardon under section 306 of Criminal Procedure Code28, he ceases to be an accused

25
(2011) 1 SCC 364.
26
AIR 1961 SC 1808.
27
AIR 1989 SC 598.
28
Section 306 of the Code of Criminal Procedure, 1973 reads as: Tender of pardon to accomplish.- .- (1) With a
view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy
to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any
stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class
inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person or
condition of his making a full and true disclosure of the whole of the circumstances within his knowledge
relative to the offence and to every other person concerned, whether as principal or abettor, in the commission
thereof.
(2) This section applies to -
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge
appointed under the Criminal law Amendment Act, 1952(46 of 1952);
(b) any offence punishable with imprisonment which may extend to seven years or with a more
severe sentence.
(3) Every Magistrate who tenders a pardon under sub-section (1) shall record -
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made,
and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section (1)-
(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and
in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under
sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the
case, -

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and becomes a witness for prosecution and his evidence, as approver cannot be used against
him in other cases and he is protected under proviso to Section 132 of Indian Evidence Act.29
The proviso to Section 132 of Indian Evidence Act clearly protect a witness from being
prosecuted as the basis of the answers given by him in a criminal proceeding which tend to
incriminate him directly or indirectly.

iii. Compulsion resulting in his giving evidence “against himself”

The right to silence has various facets. One is that the burden is on the State or rather the
prosecution to prove that the accused is guilty. Another is that an accused is presumed to be
innocent till he is proved to be guilty beyond reasonable doubt. A third is the right of the
accused against self incrimination, namely, the right to be silent and that he cannot be
compelled to incriminate himself. There are also exceptions to the rule. An accused can be
compelled to submit to investigation by allowing his photographs taken, voice recorded, his
blood sample tested, his hair or other bodily material used for DNA testing etc. Compulsion
is duress; compulsion has to be a physical objective act and not the state of mind of the
person making the statement, except where the mind has been so conditioned by some
extraneous process as to render the making of the statement involuntary and, therefore,
extorted. The mere asking by a police officer investigating a crime against a certain
individual to do a certain thing is not within the meaning of Article 20(3) of the
Constitution.30

Here the accused may waive his right by entering into the witness box or by giving evidence
voluntarily on request. But for maintaining this provision to attract the right given under
Article 20 (3) where accused is compelled to make or give statement against him which
amount to incrimination. In Amrit Singh v. State of Punjab,31 the accused was charged for
rape and murder of an eight year old girl. When the body of the child was recovered, some
strands of hair were found in the closed fist of the child. The police wanted to analyse the hair

(a) commit it for trial -

(i) to the Court of Session if the offence is triable exclusively by that Court or if the
Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952,
(46 of 1952) if the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case
himself.
29
Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or
prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence
by such answer.
30
Supra note 4 at 1066.
31
AIR 2007 SC 132.

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found in the fist of the victim with that of hair of accused, but he refused to give the hair
sample. The Supreme Court observed that the accused had protection against self
incrimination not to give hair. But here in such cases if court started to consider this type of
right of self incrimination than this right might be misuse by many accused though being not
reasonable to allow them such rights.

A very interesting situation arose in X v. Y,32 in which the Delhi High Court in divorce
proceedings for adultery, allowed the paternity test of a preserved foetus, holding that the
foetus is no longer a part of body of the wife and she is not subjected to any compulsion. The
privilege against self-incrimination is not applicable to search and seizure of documents or
any other object under a search warrant. In V.S. Kuttan Pillai v. Ramakrishnan & Others,33
the court held that, a general search warrant may be issued to procure the document or thing
and it can be recovered from any person who may be ultimately found in possession of it and
it was not known to the Court that the person from whose possession it was found was in
possession of it. Article 20(3) is also not violated by compelling an accused to stand up and
show his face for purpose of identification for it does not amount to giving of testimony as
the physical facts which are noticed speak for themselves. He can also be ordered to disclose
any scar or mark on his body for purpose of identification.

IV
Judicial Approach towards Article 20(3)
The case law on Article 20(3) has been through an interesting journey: from a very broad
interpretation in M.P. Sharma v. Satish Sharma34 leading to contradictory conclusions to a
much chiselled interpretation in State of Bombey v. Kathi Kalu Oghad35. Oghad was a
landmark judgment of eleven judges, one of the largest benches in the history of Indian
judiciary. It made a very significant contribution in evolving the case law on Article 20(3) by
its interpretation of the right against self-incrimination by redefining what constituted 'being a
witness against himself' taking M.P. Sharma as precedent. The constitutionality of a search or
seizure of documents from a person against whom an FIR had been lodged with the police

32
AIR 2002 Del. 217, the wife discharged the foetus and its slides were preserved in the hospital. During
divorce proceedings initiated by the husband on grounds of adultery, the husband made an application for DNA
test with respect to the said slides. The Delhi High court held that granting permission for the said test would not
amount to compelling wife to submit to any test as the discharged foetus was no longer a part of her body.
33
AIR 1980 SC 185.
34
AIR 1954 SC 300.
35
AIR 1961 SC 1808.

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was questioned in M.P. Sharma; this case, taking a broad view of Article 20(3) held that the
protection applied primarily to ‗testimonial compulsion‘.36

It therefore extrapolated protection from oral evidence as applicable till then, to written
statements as well, so as not to ‗limit Article 20(3) and rob it of its substantial purpose or to
miss the substance for the sound‘.37 Justice Jagannadhadas held that ‗to be a witness‘ was
equivalent to furnishing evidence which not only constituted oral testimony but also non-
verbal forms of conduct such as production of documents or of a thing or in other modes.38

The judgment in M.P. Sharma, however, failed to settle the scope of Article 20(3) especially
with respect to the scope of ‗non-verbal‘ evidence to which the protection was extended. As a
result, the cases that followed M.P. Sharma and preceded Oghad had a sharp difference of
judicial opinion.39 In a case,40 it was held, that an involuntary handwriting sample amounted
to compelling to be a witness violating Article 20(3), prima facie rendering Section 73 of the
Indian Evidence Act void. On the other hand, it was held in another case,41 that taking of
handwriting specimen or thumb impression under a court order did not violate Article 20(3).
The propositions laid down in M.P. Sharma were considered to be too widely stated and
Oghad made an attempt to re-interpret the same with more clarity.42 It essentially examined
the compatibility between Article 20(3), Section 73 of the Indian Evidence Act, and Sections
5 and 6 of the Identification of Prisoner‘s Act, as the case law on Article 20(3) prevalent
since M.P. Sharma was seen to nullify the other statutes, creating a judicial gridlock. The
liberality in that case may have gone beyond the original intent and purpose of Article 20(3).

While upholding M.P. Sharma on inclusion of written testimony, in addition to oral for
protection, the instant case made an important departure from the former. The judgment in
the instant case approached the matter by first examining the definition of the expression ‗to
be a witness‘ in Article 20(3). It sought to establish a distinction between testimonial and
physical evidence, and held that the act of providing testimonial evidence alone constitutes
‗to be a witness‘. Justice B. P. Sinha opined that the phrase ‗to be a witness‘ must be
restricted to mean ‗imparting knowledge in respect of relevant facts by means of oral
statements or statements in writing by a person who has personal knowledge of the facts to be

36
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
37
Ibid.
38
Ibid.
39
See H.M. Seervai- Constitutional Law of India, Universal Law Publishing Co., 4th edn. 1996, Vol. II, pp.
1063-1064.
40
Farid Ahmed v. State, AIR 1960 Cal 32.
41
Re: Sheik Mohd. Hussain, AIR 1957 Mad 47.
42
Supra note 17.

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communicated to a court or to a person holding an enquiry or investigation on matters
relevant to the subject under inquiry.‘43 Self-incrimination was declared as the conveying of
information that was based upon the personal knowledge of a person giving that information.
It was ruled that ‗personal testimony‘ was to depend upon volition. An accused had the
choice of making the statement or refusing to make the same.44 So, by limiting the scope of
evidence qualifying the definition of ‗to be a witness‘, Oghad brought much clarity on the
interpretation of Article 20(3).

The judgment perceived a witness to be one who gave oral or written statements which by
themselves had a tendency to incriminate the accused. All other kinds of physical, biometric,
forensic and material evidence were not considered a ‗personal testimony‘ and did not invoke
the right against self-incrimination. Their purpose was seen as only to lend reliability to other
evidence, and efforts to conceal their true nature would not change their ‗intrinsic character‘.
Consequently, handwriting samples, fingerprints, thumb-prints, palm-prints, footprints or
signatures, were declared as material evidence, not incriminating the accused and falling
outside the scope of Article 20(3), thereby subjecting them to compulsion in the due process
of law.45 The position is that a ‗witness‘ must communicate facts with his personal
knowledge echoes throughout the opinion on the controlling precedent M. P. Sharma. By
establishing this benchmark for the distinction between testimonial and material/physical
evidence, the judgment amended the interpretation given by its precedent.

Oghad was an extremely noteworthy judgment as it helped resolve conflicts among

judgments with its interpretation. The court could now direct an accused to produce or give
his handwriting exemplar, under Section 73,46 without invoking Article 20(3).47 Several
subsequent cases were facilitated by the case law thus established by Oghad which helped
resolve apparent conflict among different statutes and interpretations. A case in point is Smt.
Selvi v. State of Karnataka48 which involved the use of advanced scientific methods for
collection of evidence for criminal investigations. It heavily drew upon Oghad, adding
another new dimension to its interpretation. In Selvi, the constitutionality of narco-analysis,
lie-detector test and analysis of brain waves (Brain Electrical Activated Profiling (BEAP)
test) was questioned. The three judge bench ruled that the compulsory administration of such
tests should be banned as forcible intrusion into the mind of the accused not only violated

43
Ibid.
44
Ibid.
45
Ibid.
46
Section 73, Indian Evidence Act, 1872.
47
State of Delhi v. Pali Ram, AIR 1979 SC 14.
48
(2010) 7 SCC 263.

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Article 20(3) but also intruded on the privacy and liberty of an individual, thus violating
Article 21 of the Indian Constitution.49 Oghad seems to have foreseen such a situation when
Justice Sinha stated that if the mind of the subject had been conditioned such that a
confession was involuntary, it would be considered coercion, and hence in violation of
Article 20(3).50 At the same time it is perceived by the author that Oghad, in its re-
interpretation, may not have sufficiently addressed all situations thrown up by technology
driven social change.

While Oghad rightly disallowed protection to material evidence which in itself did not
incriminate the accused in itself such as fingerprints, handwriting samples etc., it actively
excluded a large space of evidence, much of what could potentially be self-incriminatory and
could have been considered to be worthy of protection under the original spirit of Article
20(3). This is perceived by the author as its principle vulnerability especially in view of the
changing nature of self-incriminatory evidence in the face of technological advancement.

In Ritesh Kumar v. State of U. P.51 the Supreme Court held that, person directed to give voice
sample during the course of investigation of an offence, is not violation of his right under
Article 20 (3) of the Constitution. Court again stated that voice sample is like fingerprint
impression, signature or specimen handwriting of an accused. Like giving fingerprint
impression or specimen handwriting by the accused for the purpose of investigation, cannot
be included in the expression ―to be a witness‖ and by giving voice sample the accused does
not convey information based upon his personal knowledge which can incriminate him. The
accused by giving voice sample merely giving ‗identification data‘ to the investigation
officer, thus, taking voice sample of an accused by police during investigation is not hit by
article 20 (3).

V
Narco-Analysis Test vis-à-vis Self-Incrimination

The admissibility of science in a court of law demands that three major requirements be met:
namely validity, reliability and legality.52 The same must be used to analyse the science of
narco analysis and its prospective admissibility in our courts. Validity demands that the
evidence procured be the result of a scientifically validated method and that it measures all
that it claims to measure with a reasonable amount of accuracy. Reliability on the other hand

49
Ibid.
50
Supra note 17.
51
AIR 2013 SC 1132.
52
Dr. Ramanadham Memorial Meeting on “Narco Analysis, Torture and Democratic Rights” conducted by the
Peoples‘ Union for Democratic Rights, p.12.

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is an indication of consistency in the accuracy of the results procured, the success rate of the
tests conducted and other consequences of the same.

M. P. Sharma v. Satish Chandra53 gave this right a broad interpretation and held that it is not
possible to limit this provision to oral evidence; the Supreme Court here brought in various
other forms of evidence such as ‗production of a thing‘ and evidence by other modes within
the ambit of this Article. Scientific evidence has not been accorded its due place in our
country owing to the pace of developments in the field. Thus even though M. P. Sharma case
attempted to answer all major questions posed to the Self Incrimination Doctrine in its current
times, advancements in forensic science quickly put forth new challenges to it. Kalu Kathi
Oghad54 answered the question of compelling the accused to give specimen handwriting,
thumb impressions and signatures stated that the right of the accused against self
incrimination is not violated in such cases since ―self incrimination must mean conveying
information based upon the personal knowledge of the person giving the information” and
covers only “personal testimony which must depend upon his volition”. Here the court
restricted the meaning of the phrase ―to be witness” to furnishing evidence in the form of oral
or written statement and not large enough to include impressions and specimen signatures.
The leading case that has guided precedent in our country with respect to narco-tests has been
U.S. v. Solomon55 where the United Sates Supreme Court held used expert witnesses to
establish that adequate safeguarding against the unreliability of narco-tests was possible; on
the whole however, while narco-tests were held as unreliable, their acceptance as an
investigative technique was upheld. The question of compulsion was answered by the Indian
Supreme Court in Dinesh Dalmia v. State of Maharashtra56 wherein it said that consent
played no role in court-ordered narco-tests. This decision was however based on a technical
irregularity. If this decision is to be upheld as valid, then it can be considered a valuable
landmark in the course of the self incrimination doctrine in India; this case however said that
while subjecting a person to narco-tests was compulsive, the revelations made are entirely
voluntary; as such it has been held to widespread criticism by the proponents of this right.
The most recent development as far as consent of the accused for conducting narco-analysis
has been in the form of a stay order by the Supreme Court in November 2006 on narco-
analysis being carried on K.Venkateshwar Rao in a case involving Krushi Cooperative Urban

53
AIR 1954 SC 300.
54
AIR 1961 SC 1808.
55
753 F.2d.1522 (9th Cir. 1985).
56
Cri LJ (2006) 2401.

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Bank.57 This is considered a welcome move; however consent implies ‗informed consent‘.
The person giving this consent must not only be made aware of his right against
incriminatory evidence, but he must also in cases of such consent be made aware of the
procedure to be carried on him and the consequences of such procedures. 58 These two
conflicting judgments however, leave us in hazy ground with respect to the role of consent in
conducting such tests. Such a vital component of the privilege against Self Incrimination
demands better scrutiny by the courts. A previous judgment of the court in the case of
Nandini Satpathy v. P.L.Dani59 places any form of duress, physical or mental under the
definition of ‗compelled testimony‘ and holds it as violative of the privilege. The aspect of
narco analysis, keeping in mind the compelling interest of the state in security and order,
cannot be put away without further explanation.

The drafting committee on ―National Criminal Justice System Policy‖ headed by Prof. N. R.
Madhavanan has recommended various measures to be taken by the government to amend
various parts of the Criminal Procedural Code for effective management of the overall
science and technology needs of the criminal justice system.60 Section 53 of the Code of
Criminal Procedure, 197361 was amended to allow medical examination of an accused in the
interests of justice, “as maybe reasonably necessary”. Narco-tests may be considered
reasonable under such circumstances as terrorist attacks and other grave cases. A question
relates to how the graveness of such an issue is to be decided; it is, under the said Section, the
discretion of the prescribed police officers to make such a move and as evident is open to
abuse. Section 45 of the Indian Evidence Act, 187262 affords, in the interests of justice the
opinions of experts as admissible in the court; it is however silent on the complicated
question of narco-tests. This complication arises from the fact that the result of a narco-test is
submitted to the court in the form of a report by the expert doctor under whose supervision
such a test is conducted.
57
Supra note 51 at 4.
58
Ibid.
59
AIR 1978 SC 1025.
60
Para 7.2.4 and para 7.2.5 propose amendments to the Indian Evidence Act to make scientific evidence
admissible as “substantive evidence rather than opinion evidence”.
61
Section 53 reads as – “Examination of a Person- When a person is arrested on a charge of committing an
offence of such a nature and alleged to have been committed under such circumstances that there are reasonable
grounds for believing that an examination of this person will afford evidence as to the commission of this
offence, it shall be lawful for a registered medical practitioner, acting at the request of the police officer not
below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to
make such an examination of the person as reasonably necessary in order to ascertain the facts which may afford
such evidence, and to use such force as is reasonably necessary for that purpose.‖
62
Section 45 of the Indian Evidence Act, 1872 reads as: “Opinions of experts.- When the Court has to form an
opinion upon a point of foreign law or of science or art, or as identity of handwriting, [or finger impressions],
the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as
to identity of handwriting], [or finger impressions] are relevant facts.‖

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The problem therefore, is threefold. First relates to the compulsive subjugation of a person to
narco-tests; second is relating to the right extending to all stages of investigation and not
merely to the trial stage. The third is relating to the form in which the results of such tests are
submitted to the court. An answer could be sought by considering, that narco-tests, like other
forms of scientific evidence are alternatives to confessions and likewise are meant to bypass
the privilege guaranteed against self incrimination. Going strictly by precedent, no conclusive
answer can be reached to either of the question posed above; however as Cardozo. J has
said63 “the right against Self Incrimination is a right that might be lost and justice still be
done.”

It is argued64 that Narco-Tests satisfy all the requirements of the UN definition of torture65. If
this argument is accepted, there can be no question as to the admissibility of Narco-tests in a
court of law; the situation however is different owing to the counter-argument that it is infact
a substitute of third degree methods of extracting information from an accused. Kishore Singh
v. State of Rajasthan66 prescribed humane treatment of an accused as far as possible unless
absolutely necessary as long as he was in police custody. The case of Gobind Singh v. State
of Madhya Pradesh67 ruled on the ‗Right to Privacy‘ of an individual as extending to the
physical and mental state of the individual. Further developments in this area68 have clearly
pointed out as ultra vires the authority of the State to forcibly expose the parts of an
individual‘s life that he wishes to keep to himself within his private sphere. An approach to
the issue of Narco analysis guided by the sole motives of individual liberties would therefore
hold the same to be in contravention of the rights guaranteed under Articles 20(3) and 2169 of
the Constitution of India.

In Selvi v. State of Karnataka70, the Supreme Court rejected the High Court‘s reliance on the
supposed utility, reliability and validity of narco analysis test and other tests as methods of
criminal investigation. First, the Court found that forcing a subject to undergo narco-analysis,

63
Palko v. Connecticut, 302 U.S, 319,325 (1937).
64
Supra note 51 at 25-26.
65
Article 1 of the U N Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment, 26th June 1987 defines torture to have 4 components; mainly 1) physical or mental suffering and is
a degrading treatment, 2) it is intentionally inflicted, 3) it is inflicted with specific purposes such as eliciting
information and 4) it is inflicted by an official actor or an actor acting on behalf of such official.
66
AIR 1981 SC 265.
67
AIR 1975 SC 1378. “…they sought to protect individuals in their belief, thought, their emotions and their
sensation. Therefore they must be deemed to have conferred upon the individual as against the government, a
sphere where he should be left alone.”
68
See M.P.Sharma v. Satish Chandra AIR 1954 SC 300; PUCL v. Union of India 1997 (1) SCC 301.
69
Article 21 of the Constitution of India reads as: “Protection of life and personal liberty.- No person shall be
deprived of his life or personal liberty except according to procedure established by law.‖
70
AIR 2010 SC 1974.

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brain-mapping, or polygraph tests itself amounted to the requisite compulsion, regardless of
the lack of physical harm done to administer the test or the nature of the answers given during
the tests. Secondly, the Court found that since the answers given during the administration of
the test are not consciously and voluntarily given, and since an individual does not have the
ability to decide whether or not to answer a given question, the results from all three tests
amount to the requisite compelled testimony to violate Article 20(3). The Supreme Court
found that narco-analysis violated individual right to privacy and amounted to cruel, inhuman
or degrading treatment.
VI
DNA Testing and Article 20(3)
The introduction of the DNA technology has posed serious challenge to some legal and
functional rights of an individual such as ―Right to privacy‖, ―Right against Self-
incrimination‖. And this is the most important reason why courts sometimes are reluctant in
accepting the evidence based on DNA technology. Right to Privacy has been included under
Right to Life and Personal liberty or Article 21 of the Indian Constitution, and Article 20(3)
provides Right against Self- Incrimination which protects an accused person in criminal cases
from providing evidences against himself or evidence which can make him guilty. But it has
been held by the Supreme Court on several occasions that Right to Life and Personal Liberty
is not an absolute Right. In Govind Singh v. State of Madhya Pradesh,71 Supreme Court held
that a fundamental right must be subject to restriction on the basis of compelling public
interest. In another case Kharak Singh v. State of Utter Pradesh,72 Supreme Court held that
Right to privacy is not a guaranteed right under our Constitution. It is clear from various
decisions which have been delivered by the Supreme Court from time to time that the Right
to Life and Personal Liberty which has been guaranteed under our Indian Constitutions not
an absolute one and it can be subject to some restriction. And it is on this basis that the
constitutionality of the laws affecting Right to Life and Personal Liberty are upheld by the
Supreme Court which includes medical examination. And it is on the basis that various courts
in the country have allowed DNA technology to be used in the investigation and in producing
evidence. To make sure that modern technologies can be used effectively, there is an urgent
need of a specific legislation which would provide the guidelines regulating DNA testing in
India.

In Thogorani alias K. Damayanti v. State of Orissa and Ors.,73 the court noted that the only

71
AIR 1975 SC 1378.
72
AIR 1963 SC 1295.
73
2004 Cri. LJ 4003.

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restriction for issuing a direction to collect the blood sample of the accused for conducting
DNA test would be that before passing such a direction, the Court should balance the public
interest vis-a-vis the rights under Articles 20(3) and 21 of the Constitution in obtaining
evidence tending to confirm or disprove that the accused committed the offence concerned.
In balancing this interest, consideration of the following matters would be relevant:

1. the extent to which the accused may have participated in the commission of the crime;
2. the gravity of the offence and the circumstances in which it is committed;
3. age, physical and mental health of the accused to the extent they are known;
4. whether there is less intrusive and practical way of collecting evidence tending to
confirm or disprove the involvement of the accused in the crime;
5. the reasons, if any, for the accused for refusing consent.

In Mrs. Kanchan Bedi and Anr. v. Shri Gurpreet Singh Bedi 74, the parentage of the infant
was in question, and the application filed by the mother for conducting DNA test was
vehemently opposed by the father contending that it would violate his rights. Hon‘ble
Vikramjit Sen J held that: ―it appears to me to be difficult to resist that the law, as it presently
stands, does not contemplate any impediment or violation of rights in directing persons to
submit themselves for DNA test, especially where the parentage of a child is in controversy
for the grant of maintenance.‖ It was further held that where the parentage of a child is in
controversy for the grant of maintenance, parties submitting themselves for the DNA test is
not violation of rights. He relied on the decision of the Hon‘ble Supreme Court in the case
of Geeta Saha v. NCT of Delhi (DB) 75, where a Division Bench of Hon‘ble Supreme Court
had ordered that a DNA test be conducted on a foetus of a rape victim. Hon‘ble Vikramjit
Sen J distinguished this case from the case of Goutam Kundu v. State of West Bengal &
Anr.76, where it was held that ―wife cannot be forced to give blood sample and no adverse
inference against her for this refusal‖. In Ms. X v. Mr.Z & Anr.77, a single Judge of Delhi
High Court had allowed a similar application and had directed that at the cost of husband, the
Pathology Department of All India Institute of Medical Sciences should conduct the DNA
test. The DNA test was to be conducted of a foetus.

74
AIR 2003 Delhi 446.
75
1999 (1) JCC 101.
76
(1993) 3 SCC 418.
77
96 (2002) DLT 353.

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In a very important and recent judgment delivered by the Hon‘ble Supreme Court of India in
the case of Sharda v. Dharmpal78 where the core question was, whether a party to a divorce
proceeding can be compelled to a medical examination. In this case an order for DNA test
was opposed by the Respondent on the ground that such an order violates his right to privacy.
The three Judge bench of the Hon‘ble Supreme Court held that: ―If for arriving at the
satisfaction of the court and to protect the right of a party to the lis who may otherwise be
found to be incapable of protecting his own interest, the court passes an appropriate order, the
question of such action being violative of Article 21 of the Constitution of India would not
arise. The court having regard to Article 21 of the Constitution of India must also see to it
that the right of a person to defend himself must be adequately protected.‖ It further held that
if respondent avoids such medical examination on the ground that it violates his/her right to
privacy or for a matter right to personal liberty as enshrined under Article 21 of the
Constitution of India, then it may in most of such cases become impossible to arrive at a
conclusion. It was also said that if despite an order passed by the Court, a person refuses to
submit himself to such medical examination, a strong case for drawing an adverse inference
would be made out. Section 11479 of the Indian Evidence Act enables a Court to draw an
adverse inference if the party does not produce the relevant evidences in his power and
possession.

The right of privacy under Article 21 was not absolute and such a direction could be given
looking to the conclusiveness of the DNA Test and its scientific accuracy80. If the applicant
has a strong prima facie case and there is sufficient material before the Court then it can order
a person to undergo DNA test and passing of such an order by the Court would not be in
violation of the fight to personal liberty under Article 21 of the Indian Constitution81. There
is nothing brutal or offensive or shocking in taking the blood sample for DNA test under the
protective eye of law. The constitutional mandate does not say that no person shall be
deprived of his personal liberty under any circumstances. On the contrary, if such deprivation
of right or personal liberty is in accordance with the procedure established by law, the same
does not violate Article 21 of the Constitution of India.82

78
AIR 2003 SCW 1950.
79
Section 114 of the Indian Evidence Act, 1872 reads as: “Court may presume existence of certain facts. —The
Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and private business, in their relation to the facts of
the particular case.‖
80
Banarsi Dass v. Teeku Dutta and Anr. (2005) 4 SCC 449 (in this case however, the application for DNA test
was rejected finding the case not fit for such direction).
81
V. K. Bhuvaneshwari v. N. Venugopal, TN-2006-2603.
82
H. M. Prakash v. The State of Karnataka, ILR 2004 Kar. 2637.

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The recent refusal of the Supreme Court to dismiss the Delhi High court‘s decision ordering
veteran congress leader N.D. Tiwari to undergo the DNA test is very important from the
viewpoint of the admissibility of such evidence. In this case, Rohit Shekhar has claimed to be
the biological son of N.D. Tiwari, but N.D. Tiwari is reluctant to undergo such test stating
that it would be the violation of his Right to privacy and would cause him public humiliation.
But Supreme Court rejected this point stating when the result of the test would not be
revealed to anyone and it would under a sealed envelope, there is no point of getting
humiliated. Supreme Court further stated that we want young man to get justice; he should
not left without any remedy. It would be very interesting to see that how courts in India
would allow the admissibility of DNA technology in the future.

Some suggestions regarding DNA profiling which should be followed by the authorities:

i. The Government must make necessary provisions / amendments in the Cr. P. C. for
the accused / suspect to provide their DNA sample to the investigating agencies on the
direction of competent court.
ii. The Government should take speedy measures to create data base of DNA based on
ethnic group, anthropological and regional considerations.
iii. It is important to create a balance between the constitutional rights of an individual
and the public interest and bring accountability and transparency to the practice of
DNA collection and testing.
VII
The Changing Face of Self-Incriminatory Evidence and Social Media
Nowadays social media plays a vital role in everyone‘s life so it is very important in
investigation of a case and facilitate the investigator in collection of evidences. The judgment
of Kathi Kalu Oghad83 is very relevant to apply in techno-sociological phenomena. There
will be juxtapose the majority and the minority judgments in Kathi Kalu Oghad to explain
their positions while addressing the emerging issue of the role played by social media as a
rich source of personal testimony by an accused.

Social media are web-based and mobile technologies that turn communication into an
interactive dialogue in a variety of online fora, allowing the creation and exchange of user-
generated content.84 Social networking websites are the next generation in communications
technology, providing a platform for multi-faceted communication between participating

83
Supra note 17.
84
Kaplan , Andreas., & Haenlein , Michael.,- Users of the world, unite! The challenges and opportunities of
Social Media, Business Horizons, 2010, p. 53.

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users. Social networking sites and email accounts form an integral part of the way the world
communicates today. Facebook posts, comments, and photographs are a potentially rich
source of evidence in criminal cases, as they offer a window into a suspect‘s thoughts that is
rare outside of the pages of a diary.85

Facebook has said that it had 46 million monthly active users in India at the end of 2011, up
by 132% from a year earlier.86 This number is expected to rise exponentially as access to the
Internet rises in the country. In the past few years (in the West), Facebook has emerged as a
fertile source of incriminating information from boastful or careless defendants who find in
Facebook a great way to project their outlaw persona to the world. 87 An online account on a
social networking website is a tempting source of evidence and it can provide prosecutors
with a treasure trove of incriminating evidence.88 In the Geetika Sharma murder case, the
victim‘s brother said that the victim‘s Facebook account has been deactivated and alleged
that the prime accused was behind it.89 The day is not too far when Facebook will become a
significant source of testimony in law in India too. This is only covers the situation where the
law enforcement officials, in the absence of a ‗friend‘ of an accused or sufficient information
to subpoena the company directly, cannot have access to the online profile of the accused
without the cooperation of the accused himself.

An investigating agency does not look at a controversy in isolation. The agency not only
seeks to establish the facts of the case but also any information related to the accused in any
fashion whatsoever. The advent of social media has led to the creation of a pool of personal
information which for the accused can become self-incriminatory, if revealed. A Facebook
user, through the means of his ‗wall‘ and profile, tries to create his own world. He makes
regular, entries just as in a journal or diary, along with images, video cum audio links and
links to other web-pages. Over a period of time, the user‘s profile begins to reflect his
thinking patterns, lifestyle choices, interests, places frequented, philosophical, religious and
cultural leanings, network of friends and personality traits.

85
Morrison, Caren Myers- Passwords, Profiles and the Privilege against Self-Incrimination: Facebook and the
Fifth Amendment, Georgia State University of Law, 2012, Legal Studies Paper No. 2012-05, , p. 26.
86
Sharma, Amol.- ―Facebook, Google to Stand Trial in India‖, The Wall Street Journal (March 13, 2012),
available at: http://online.wsj.com/article/SB10001424052702304537904577277263704300998.html; Last
retrieved on 29.05.2015.
87
Supra note 83 at 2.
88
Id. at 1.
89
―Kanda had enough time to destroy evidence: Geetika's brother”, Deccan Herald (Aug. 18, 2012), available
at: http://www.deccanherald.com/content/272452/geetika-case-former-haryana-minister.html (Last visited on
April 24, 2015).

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An example can help clarify the relation between the privilege against self-incrimination and
Facebook evidence. An accused X could have been the last person to have been sighted on
the murder site. If X‘s Facebook page reveals that he was in fact present at the murder site or
close to the murder site, at the time of murder, this information could incriminate him. It is
here where the nature of information available on Facebook becomes a bone of contention.
When faced with something other than a declarative oral or written statement, the U.S.
Supreme Court has defined a compelled act as ‗testimonial,‘ if it ‗explicitly or implicitly
relates a factual assertion or discloses information.‘90 The Supreme Court has accepted
‗physical or real evidence‘91 as long as it does not ‗disclose the contents of his own mind‘.92

It believes that the substantive information available on the Facebook page of an accused is
akin to a snapshot of his mind. Allowing access to it is analogous to ‗disclosing the contents
of one‘s mind‘.93 By making inferences through social media accounts, investigators are able
to derive knowledge through the mind of the accused, which otherwise is not available to the
former. An individual who is compelled to give law enforcement access to her Facebook
page is forced to engage in cognition for the benefit of the state and to turn over the results of
that mental process.94 In addition, the accused does implicitly relate the factual assertions, ‗I
do have a Facebook page‘ and ‗Here is how to access that Facebook page‘; these admissions
play a major role in the light of the controversies regarding the authenticity of Facebook
profiles.95 One of the arguments behind the privilege against self-incrimination centers upon
the supposed cruelty of subjecting the accused to the ‗trilemma of perjury, self-accusation or
contempt‘.96 A subpoena to give access to Facebook content places the accused in such a
‗cruel trilemma‘ as the accused is placed in a position of disclosing the access to the content
on his Facebook page, denying that he has a Facebook page, or refusing to answer.97

If Oghad case were to address the interaction between information available on social media
accounts and what constitutes ‗testimony‘, content such as that available on Facebook would
be dislodged from the protection of Article 20(3) in the assessment of the narrow judgment
given by the majority judgment. Under the majority judgment, it can be easily argued that

90
Supra note 83 at 11.
91
Ibid.
92
Ibid.
93
Ibid.
94
Allen, Ronald J. & Mace, M. Kristin- The Self-Incrimination Clause explained and its future predicted, 94(1)
Journal of Criminal Law And Criminology 94(1), 2004, pp. 267-68.
95
Supra note 83 at 4.
96
Amar, Akhil Reed., and Lettow, Renee B.,- Fifth Amendment First Principles: the Self-Incrimination Clause,
Michigan Law Review 93(5), 1995 p. 311.
97
Supra note 83 at 13.

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social media accounts of an accused do not enjoy protection under Article 20(3). It is based
on the majority view that ‗The giving of personal testimony must depend upon his volition.‘98
Facebook content will be read as neither oral nor written testimony as it cannot be placed
under the volitional deposition of the accused to speak or write. It was also held that, ‗The
accused can make any statement … an accused may have documentary evidence in his
possession which may throw some light on the controversy … if it is a document which is not
his statement conveying his personal knowledge relating to the charge against him … which
may throw light on any of the points in controversy, he may be called upon by the court to
produce that document…‘99 Any document that meets the aforementioned criterion can be
asked to be produced before the Court. Facebook content shall fall under the production of
such a document that does not impart personal knowledge in respect of relevant facts.

The majority faction in Oghad case also held that ‗In order that a testimony by an accused
person may be said to have been self-incriminatory, the compulsion of which comes within
the prohibition of the constitutional provision, it must be of such a character that by itself, it
should have the tendency of incriminating the accused, if not of actually doing so.‘ 100 The
web presence of accused can be ruled out of the scope of Article 20(3) as by itself, such
information does have the tendency to incriminate the accused.

However, as seen according to the minority judgment, complete protection would be

accorded to the web presence of an accused. The minority understood ‗to be a witness‘ as ‗to
furnish evidence‘, when it stated that ‗There can be no doubt that the ordinary user of English
words, the word ―witness‖ is always associated with the evidence, so that to say that to be a
witness is to furnish evidence is really to keep to the natural meaning of the words‘. 101 The
minority delved into the purpose of evidence to establish that ‗to be evidence, the oral
statement or a statement contained in a document, shall have the tendency to prove a fact-
whether it is a fact in issue or a relevant fact.‘102 By understanding the expression ‗to be a
witness‘ in its natural sense, the minority helped establish how documents, though not
transmitting the accused‘s personal knowledge could, in fact, have a tendency to make
probable the existence of a fact in issue or a relevant fact, thereby furnishing evidence against
himself.

Section 11 of the Indian Evidence Act embodies the facts which otherwise irrelevant become

98
Supra note 17 at 11.
99
Id.at 10.
100
Id. at 12.
101
Id. at 25.
102
Id. at 28.

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relevant. It states:

―Facts not otherwise relevant are relevant:

1. if they are inconsistent with any fact in issue or relevant fact;
2. if, by themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or relevant fact highly
probable or improbable.‖

As stated earlier, X‘s Facebook page may reveal that he was present at the murder site at the
time of murder. The fact that he was at the murder site, at the time of murder, makes it highly
probable he could have, in fact, committed the crime. Thus, this irrelevant fact becomes a
relevant one as it has by itself made the existence of a fact in issue highly probable.
Therefore, by allowing the trial agency access to one‘s Facebook page, the accused is in fact
furnishing evidence against himself.

The minority is closer to the spirit and intent of Article 20(3) as it comprehensively explains
that the dangers that abound in the absence of the privilege against self- incrimination exist
‗whether the evidence which the accused in compelled to furnish is in the form of oral or
written statements about his own knowledge or in the shape of documents or things which
though not transmitting his knowledge of the accused person directly helps the court to come
to a conclusion against him.‘103 The minority states that the production of such documents or
things does amount to ‗being a witness‘ as the giving of the same amounts to furnishing
evidence and hence, the person producing of the same is being a witness. The advent of social
media and web presence is thrown into sharp relief by the depth of the minority judgment due
to the intricate and intimate personal information available which acts as rich source of
testimony and can incriminate a person falsely. Thus, giving access to one ‗social media
accounts does amount to ‗being a witness‘.

Facebook content, under the minority judgement, will make Article 20(3) spring into action
as Facebook content is of the nature of a document that may not provide personal knowledge
with respect to the facts in question but help make probable a fact in issue or a relevant fact,
thereby furnishing evidence against the accused and making him a ‗witness‘. A subpoena to
access the Facebook page of the accused necessarily means compulsion.104 As all three
ingredients of Article 20(3) co-exist, protection of Article 20(3) can be claimed. In Facebook
content closes gaps between other kinds of evidence. Information on social media accounts

103
Id.at 30.
104
Supra note 83 at 11.

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‗furnish a new link in the chain of evidence‘105 and help the investigators discover fresh facts
or materials that could be relevant to the on-going investigation.106

The minority undoubtedly protects the substantive information available on social media
accounts. The majority judgment has circumscribed the scope of Article 20(3) whereas the
minority has taken a deeper view behind the jurisprudence underlying Article 20(3). The
principles upheld by the minority decision which go into great detail are sound. It is a far-
reaching judgment as it caters for new developments like social media and techno-
sociological developments and perhaps even more developments in the future. The majority
seems to have taken a minimalistic stance where the accused has been accorded adequate
protection, yet the emphasis has been laid on ensuring that the investigation process in not
unduly hampered. The minority, on the contrary, zealously protects the spirit of Article 20(3)
by analyzing the doctrine in much more profundity. It is well-recognized fact social media
sites are a storehouse of personal information and inclinations. One‘s entire personality is
etched across the pages of social networking sites. In their efforts to vet applicants, some
companies and government agencies are going beyond merely glancing at a person's social
networking profiles and instead asking to log in as the user to have a look around.107 This
speaks volumes about the notion prevalent amongst employers that one‘s social media
accounts are a storehouse of sensitive and personal information which can be used to assess
candidature.

Facebook is a tantalizing prize for prosecutors. It gives an insight, even if it is only in the
form of the highly stylized, self-dramatizing Facebook persona, into the psyche of the
defendant.74 The substantive content available on social networking sites is a rich source of
testimony that easily fits the purpose of Article 20(3) as meant by the makers of the
constitution, which was not envisioned by the majority in Oghad. The minority, however
recognized this principle in its true sense and hence, is better suited to deal with the changing
nature of self-incriminatory evidence with changes in technology.

VIII
Conclusion
In view of the constitutional provisions against self incrimination the Courts have required
the prosecution to prove guilt beyond reasonable doubt and there has been no encroachment

105
Selvi v. State of Karnataka, (2010) 7 SCC 263.
106
Ibid.
107
Valdes, Manuel.,- Job seekers getting asked for Facebook passwords, Associated Press (Mar 20, 2012),
available at http://finance.yahoo.com/news/job-seekers-getting-asked-facebook-080920368.html, (Last visited
on April 25, 2015).

Page | 23
whether at the stage of interrogation or trial, into the right to silence vested in the suspect or
accused. It is well established that the Right to Silence has been granted to the accused by
virtue of the pronouncement in the case of Nandini Sathpathy v. P. L. Dani,108 no one can
forcibly extract statements from the accused, who has the right to keep silent during the
course of interrogation (investigation). By the administration of these tests, forcible intrusion
into one's mind is being restored to, thereby nullifying the validity and legitimacy of the
Right to Silence.

Law is a living process, which changes according to the changes in society, science, and
ethics and so on. The Legal System should imbibe developments and advances that take place
in science as long as they do not violate fundamental legal principles and are for the good of
the society. The criminal justice system should be based on just and equitable principles.

The Right against Self-Incrimination guaranteed in the Constitution of India, though clear in
its wording, owing to equally compelling factors such as the State‘s interest in preservation of
law and order, has failed to generate a set of concrete workable principles that a court can use
to decide and defend the outcomes of particular cases. The maxim Nemo Tenetur Seipsum
accusare meaning „no man is bound to accuse himself‟ had its origin in a protest against the
inquisitorial and manifestly unjust methods of interrogation of accused persons. A proper
analysis of the this protection, and its implications on the system of criminal justice vis-à-vis
providing exceptions to this Right and its implications on individual liberties will demand a
very objective understanding of the ethical, scientific and legal aspects of protection against
Self-Incrimination.

Article 20(3) of our constitution is not attracted at all, and no question of waiver can possibly
arise, whether the ingredients of the clause are not satisfied e.g., where the accused is not
compelled on the evidence is not used against him. Hence, where the accused volunteers to
give evidence of his own choice gives evidence in lieu of an advantage, such an offer of
pardon, there is no compulsion and no violation of the clause at all. The privilege which can
be waived is afforded by the fact that unless the accused can take the stand and waive his
right the whole object of his going into the box to prove his innocence would be defeated.

The protection under article 20 (3) is available only in criminal proceedings or proceedings of
criminal nature before a court of law or other tribunal before which a person may be accused
of an offence in section 3(38) of the General clauses act, that is, an act punishable under the

108
AIR 1978 SC 1025.

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penal code or a special or local law. The protection of article 20(3) would not apply to parties
and witnesses in civil proceedings other than criminal.

It should be the duty of the state to ensure that the rights of its citizens are protected and
every individual gets an opportunity to a fair trial and objective application of laws which
provide an opportunity for creating a society which balances the clash of interests at different
levels. The individual State balance can be reached only by empowering the State in its
endeavour of public order and control of crime and at the same time placing clear and distinct
limits upon such power. A system of accountability and dispense of information giving force
the public‘s „Right to Know‟ are indispensible features of such limits. At the same time,
standards of quality, secrecy and security need to be maintained.

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