SELF INCRIMINATION

The Supreme Court in Sharma's63 case, extended the scope of the privilege to testimonial
compulsion obtained outside the court, there was wide confusion and conflict among various
decisions of the High Court. Beginning with the decision of Orissa High Court in Bhaluka
Behra v. State, 64 wherein Section 5 of the Madhya Bharat Identification of Prisoners Act
empowered the magistrate to allow the measurement or photograph of prisoners to be
taken. This included the taking of thumb
impression also. The direction made by the magistrate to give the thumb impression under
Section 5 of Act was challenged as void and repugnant to Article 20(3)of the Constitution.
The court held that this particular section empowering the magistrate to order for taking
thumb impression is void and repugnant to Article 20(3).
Contrary to this, certain other High Courts had taken the view that taking of fingerprints in the
course of investigation is not violative of Article
20(3) of the Constitution.In the recent judgment of State of U.P. v. Sunil, the Apex Court
said: Any person can be directed to give his footprints for corroboration of evidence, and the
same cannot be considered a violation of protection guaranteed under Article 20(3) of the
Constitution.

the Karnataka High Court2 decided that compelling the accused to disclose the passcode or
biometrics would not violate the rule against self-incrimination because mere disclosure of
password, passcode, or biometric alone is not incriminating and is relevant to searches as
permitted by Section 93 of the Criminal Procedure Code (CrPC)3, which allows the ordering
for a search of a “place” or a specified area.

The Supreme Court had determined the parameters of the protection against self-
incrimination in the landmark case of State of Bombay v. Kathi Kalu Oghad7 where the Court
was required to determine if giving handwriting, signature, or thumb impression samples
violates Article 20(3). The Court ruled against the accused noting that a witness can provide
both testimonial and non-testimonial (physical) evidence, and that an accused person can
only be deemed a witness against oneself in the former case.

It reasoned that,

11. … Self-incrimination must mean conveying information based upon the personal
knowledge … and cannot include merely the mechanical process of producing documents in
court which may throw a light on any of the points in controversy, but which do not contain
any statement of the accused based on his personal knowledge.8

Further at para 11 of Kothi Kalu Oghad case9 the Court observed that:

11. … “To be a witness” means 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 communicated to a court or to a person holding an enquiry or investigation.

However, a contrary view has been taken in State v. Diamond42, wherein the Supreme
Court of Minnesota observed that compelled disclosure of biometrics merely demonstrates
physical characteristics and did not communicate assertions of facts from mind. The test to
determine whether communications or communicative acts are privileged under the self-
incrimination protection is whether they are “testimonial, incriminating, and compelled”.
Applying the test in reverse, the Court found that compelling or forcing an accused to give
finger scan is certainly compelled and incriminating, however it will not be testimonial.43
Thus, it appears that no uniformity exists in cases pertaining to compelled disclosure of
biometrics.

In Re Sheik Muhammad Hussain, 65 the Madras High Court held that taking fingerprints by
the police in the course of investigation, which
was later produced at trial, did not amount to testimonial compulsion under Article 20 (3) and
was admissible in evidence.

The Kerala High Court in State of Kerala v. Sankaran Nair,66 examined in detail all the
previous decisions concerning the privilege against self incrimination and taking of specimen
handwriting got by non voluntary act of the accused. The Court concluded that this does not
amount to self incrimination by compulsion. Even though the Court did not adjudicate on the
taking of fingerprints but opined that they are not impressed by the argument that in taking
fingerprints, the guarantee against self incrimination is never violated.

The Court, by majority, held that the Constitution makers intended to protect an accused
person from self-incrimination in the light of the
English law in the area. They could not have intended to put obstacles in the way of efficient
and effective investigation into crime and bringing
criminals to justice. There were also provisions in law (Section 73 of Indian Evidence Act,
1872, Sections 5 and 6 of Identification of Prisoner's Act, 1920) which permits the taking of
thumb impressions or specimen handwriting under which a prisoner can be compelled to
permit his
photograph or measurements to be taken. Giving of thumb impressions, handwriting or
documents are not personal testimony and they do not
come within the meaning of "to be a witness" under Article 20(3). Moreover finger impression
or handwriting cannot be changed while personal
testimony, i.e., testimony given on the basis of personal knowledge depends on the volition
in the sense that the accused can make any kind
of statement. The Court concluded by observing that thumb impressions or impressions of
footprints, palm or fingers or specimen writings or
showing parts of the body by way of identification were not included in the expression "to be
a witness" under Article 20(3).

The Law Commission of India 68 has also observed that a provision permitting examination
of body parts have the chance of passing through
the courts for scrutiny under Article 20 (3) and such provision which allows the examination
of body would reveal valuable evidence, and so it will not be hit by the privilege of self
incrimination.

PRIVACY
Another issue is Invasion of the Right to Privacy of the arrestee while collecting the
fingerprint/impression. The Supreme Court said unanimously that mere making of a record
of fingerprints by police officers (of a person in custody) on a criminal charge does not
constitute an unwarranted invasion of the Right of privacy. The Right to privacy is not
absolute, in the sense that it will always be superior to the public’s rights.

In the case of McGovern v. Van Riper, the court held that: The Right of privacy of the
individual has certain limitations when considered with the rights of the public. The practice
of dissemination of fingerprint records to other law enforcement agencies before the
conviction was held to be a proper exercise of the police power to facilitate crime detection,
and that “one who has been indicted must submit to such slight invasion.

When a person is indicted, his life ceases to be private and becomes a “matter of public
interest.” Another ground for upholding the Right to disseminate the records is that it is
necessary for the purpose of determining whether the person under indictment is a repeater
or a habitual offender. Such dissemination is not an unwarranted invasion of the Right of
privacy claimed by the indicted persons to be protected by Art. 21 of Constitution.