NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

LLM (2022-2023 BATCH)

SUBJECT: RESEARCH METHODOLOGY

RESEARCH PROJECT
ON
CRITICAL ANALYSIS OF CRIMINAL PROCEDURE (Identification)
ACT, 2022 FROM THE Perspective OF RIGHT AGAINST SELF
INCRIMINATION

SUBMITTED TO SUBMITTED BY

mr. abhinav gupta Achint Dubey

(Assistant professor of law) 2022llm02
LLM CANDIDATE

Table of Contents
CHAPTER 1:INTRODUCTION.....................................................................................................3
 LITERATURE REVIEW............................................................................................................4

STATEMENT OF PROBLEM....................................................................................................5

HYPOTHESIS.............................................................................................................................5

RESEARCH QUESTIONS..........................................................................................................5

RESEARCH OBJECTIVES........................................................................................................5

RESEARCH METHODOLOGY.................................................................................................6

SCOPE AND LIMITATION.......................................................................................................6

CHAPTER-2: THE NEWLY PASSED ACT AND CONTROVERSY RELATED TO IT...........7

CHAPTER-3 : JUDICIAL INTERPRETATION OF RIGHT AGAINST SELF

INCRIMINATION AND ITS VARIOUS DIMENSIONS.............................................................9

CHAPTER-4 : CONCLUSION AND SUGGESTIONS...............................................................11

BIBLIOGRAPHY..........................................................................................................................12

DECLARATION

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I hereby declare that the research project named "Critical Analysis of Criminal Procedure
(Identification) Act, 2022 from the Perspective of Right Against Self-Incrimination" is the result
of genuine work performed by me in fulfilment of the LLM course's requirements.

In addition, I declare that none of the material in this work has been previously written or
published. In addition, no information utilised in the study has served as the foundation for the
awarding of a certificate, degree, fellowship, scholarship, title, or recognition by any institute or
institution, unless proper acknowledgment is given in the Research project.

Date -28.09.22 Achint

Dubey

Place- Bhopal 2022LLM02

LLM Candidate

National Law Institute University, Bhopal

CERTIFICATE

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This is to certify that the research project titled "Critical Analysis of Criminal Procedure
(Identification) Act, 2022 from the Perspective of the Right Against Self-Incrimination"
submitted by Achint Dubey (2022LLM02) to the National Law Institute University, Bhopal as
part of his project work is the result of genuine research conducted under my supervision and
direction. According to my knowledge, none of the content in this project has been previously
written or published. In addition, no information utilised in the study has served as the
foundation for the awarding of a certificate, degree, fellowship, scholarship, title, or recognition
by any institute or institution, unless proper acknowledgment is given in the Research project.

Date- 28.09.22

Place-Bhopal

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 ACKNOWLEDGEMENT

Mr. Abhinav Gupta, assistant professor of law at National Law Institute University Bhopal, has
my deepest appreciation. I owe him a debt of gratitude for giving me the opportunity of a
lifetime to work on the project entitled "Critical Analysis of Criminal Procedure
(Identification) Act, 2022 from the Perspective of the Right Against Self-Incrimination" under
his able direction. It would have been utterly impossible and impractical to begin such a project
without his great assistance and direction.

I would also want to thank my friends for their helpful comments and collaboration. I am also
grateful to the NLIU, Bhopal library personnel for ensuring the availability of necessary
resources. I will eternally be obliged to everyone who assisted me during my research, since their
invaluable contributions were crucial to the completion of the project.

I am very grateful to my family for inspiring me and providing me with every sort of
encouragement necessary to keep my spirits up. Finally, I would like to express my gratitude to
the writers of all the materials I reviewed during my thorough investigation, which proved to be
extremely fruitful.

With Utmost Gratitude

Date- 28.09.22 Achint Dubey

Place- Bhopal 2022LLM02

LLM Candidate

National Law Institute University, Bhopal

LIST OF ABBREVIATION

V|Page
 ABBREVIATION TERM

SCC Supreme Court Cases

AIR All India Reporter

V Versus

Etc. Etcetera

INDEX OF AUTHORITIES
 LIST OF STATUTES

S. No. NAME OF THE STATUTE

1. THE CONSTITUTION OF INDIA, 1950

2. INDIAN PENAL CODE, 1860 (45 OF 1860)

3. THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022 (11 OF 2022)

INDEX OF AUTHORITIES

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  LIST OF CASES

S. No. NAME OF THE CASE PAGE

NO.

1. Govind Singh v State of MP AIR 1975 SC 1378 8

2. Kharak Singh v State of UP AIR 1963 SC 1295 8

3. M P Sharma v Satish Chandra AIR 1954 SC 300 6

4. Mohammad Dstgir v State of Madras AIR 1960 SC 756 8

5. Ram Lal Narang Etc. v State of Delhi 1979 2 SCC 322 7

6. Selvi v State of Karnataka AIR 2010 SC 1974 8

7. Sharda v Dharampal 2003 4 SCC 493 7

8. State of Bombay v Kathi Kalu Oghad AIR 1961 SC 1808 7

9. State v M Krishna Mohan AIR 2008 SC 368 7

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 CHAPTER 1: INTRODUCTION

Recently the Government of India has passed the Criminal Procedure (Identification) Act, 2022
which will replace the Identification of Prisoners Act, 1920. The main purpose of passing this act
is to collect, analyze and store the biological data of person who is accused of an offence or
convicted for an offence or person who is under the preventive detention so as to make the
process of investigation expedite and effective. The earlier Identification of Prisoners Act, 1920
stands repealed by the section-10(1) of the newly passed act. The newly passed act widens the
scope of power in terms of collecting biological data of any person arrested by police including
the person who is under preventive detention. The act also criminalizes the refusal to share data
and the person can be penalized for doing so under section 186 of Indian Penal Code, 1860.

The application of act is limited to collection of biological data or measurements in the maters of
criminal proceeding only and matters related thereto for the purpose of identification and
investigation. The newly passed act has raised many concerns with respect to its validity in
relations to constitutional provisions like forceful collection of biometric data of a person is
alleged to be intrusion of Right to Privacy guaranteed under Article-21 of Indian Constitution,
compulsion to submit the biological or biometric data to authorities can amount to violation of
Right against self incrimination which is fundamental tenet of criminal law jurisprudence and
also the fundamental right under Part-III of the Indian Constitution also the distinction between
making it mandatory to collect the biometric data of person who has committed crime against
woman or children or who has committed crime which has punishment not less than seven years
and other crimes has no rational nexus under article -14 of Indian Constitution. In this project
work we will critically examine whether mandatory collection of Biometric data of the person
under this act violates Right Against Self Incrimination under Article 20(3) of Indian
Constitution or not.

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LITERATURE REVIEW

1.) Jasdeep Kaur, Changing Dimensions of Right against Self-Incrimination: An Analytical

Study, REV. DR. Const. (2021)1
In this paper the author discusses the growth of science and technology in criminal investigation
in relation to right against self incrimination guaranteed under Indian Constitution and tries to
find out whether the new scientific and technological advancement in criminal investigation has
violated the accused right against self incrimination or not.

2.) Jaishree Jaiswal, Right of an Accused to Be Protected against Self-Incrimination -Its

Availability and Emerging Judicial Dimensions under Criminal Law, Indian Journal of Law
and Justice (2012)2
In this paper author discusses the history and development of Right Against Self Incrimination in
various jurisdiction as well as in Indian context. The author majorly elaborated on judicial
interpretation of the constitutional provision as well as the scope which has been widen by the
Indian judiciary in safeguarding the rights of accused.

3.) Aqa Raza and Pankaj Kumar Pandey, Protection against Self-Incrimination as a
Fundamental Right in India: A Critical Appraisal, Indian Bar Review (2015)3
In this paper author tried to analyze the constitutional Right Against Self Incrimination and
Modern technique of DNA profiling and Narco analyses and how judiciary played the role in
creating a fine balance between modern investigation techniques and right of the accused which
is guaranteed by the constitution to serve the purpose of justice.

1
Jasdeep Kaur, ‘Changing Dimensions of Right against Self-Incrimination: An Analytical Study’ (2021) Revista de
Drept Constitutional 32.
2
Jaishree Jaiswal, ‘Right of an Accused to Be Protected against Self-Incrimination -Its Availability and Emerging
Judicial Dimensions under Criminal Law’ (2012) 3 Indian Journal of Law and Justice 72.
3
Aqa Raza and Pankaj Kumar Pandey, ‘Protection against Self-Incrimination as a Fundamenal Right in India: A
Critical Appraisal’ (2015) XLII(IV) Indian Bar Review 133.

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4.) S.N Jain, Physical Examination of the Accused and the privilege against Self-
incrimination: State of Bombay v. Kothi Kalu Oghad, Journal of the Indian Law Institute
(1962)4
The author in this paper did a case analysis of State of Bombay v. Kothi Kalu Oghad and
critically examined whether mandatory obtaining of palm and figure impressions of the accused.
The author also attempted to find out the meaning of ‘compelled’, ‘to be a witness’ and
‘accused’ which played a significant role in examining whether right against self incrimination
has been violated or not.

STATEMENT OF PROBLEM

The Criminal Procedure (Identification) Act, 2022 violates the fundamental right against self
incrimination which is granted to an accused under Article-20(3) of Indian Constitution.

HYPOTHESIS

The newly passed act doesn’t violate right against self incrimination guaranteed under Article-
20(3) of Indian Constitution.

RESEARCH QUESTIONS

1.) What dispute surrounds the Criminal Identification Procedure Act of 2022 in terms of the
right against self-incrimination?
2.) What are the most significant court developments on the right against self-incrimination?
3.) Does the recently passed legislation on criminal identification violate the right to self-
incrimination?

RESEARCH OBJECTIVES

The research project would try to analyze the available literature, with an objective of
understanding the following propositions, namely:
1.) To understand the concept of right against self incrimination guaranteed under Indian
Constitution.

4
S N Jain, ‘Physical Examination of the Accused and the privilege against Self-incrimination: State of Bombay v
Kothi Kalu Oghad’ (1962) 4 Journal of Indian Law Institute 552.

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2.) To analyze the judicial interpretation of right against self incrimination guaranteed under
Indian Constitution.
3.) To understand the whether modern scientific techniques of investigation are in violation of
right against self incrimination or not.
4.) To analyze whether the Criminal Identification Procedure Act, 2022 violates right against self
Incrimination or not.

RESEARCH METHODOLOGY

The methodology used in this project is doctrinal in nature. The project will be descriptive and
analytical as research will revolve whether Criminal Identification (Procedure) Act, 2022
violates right against self incrimination guaranteed under Indian constitution or not.

SCOPE AND LIMITATION

In this project the researcher has mainly focused on analysis of newly introduced ‘The Criminal
Identification(Procedure) Act, 2022’ from the perspective of fundamental right enshrined in the
constitution under article-20(3) which mentions about right against self incrimination. The
research work will revolve around the facets mentioned above and will analyze these issue only.

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 CHAPTER-2: THE NEWLY PASSED ACT AND
CONTROVERSY RELATED TO IT
The newly passed Criminal Identification (Procedure) Act, 2022 5 empowers the executive
authorities to collect the measurements of the person who is accused or convicted for an offence.
The main aim of the newly passed act is to make the process of investigation effective and
expedite. The act mainly focuses on collection of measurements in matters of criminal law only.
The measurements has been defined in clause 2(1)(b) of the act which states that measurements
includes "finger-impressions, palm-print impressions, foot-print impressions, photographs, iris
and retina scan, physical, biological samples and their analysis, behavioural attributes including
signatures, handwriting or any other examination referred to in section 53 or section 53A of the
Code of Criminal Procedure, 1973." To sum up we can say that executive authorities through
this act are empowered to collect biometric data of the person arrested or convicted for an
offence.

Under clause 2(1)(c) of the act it has been mentioned that that police officer who is in-charge of
a police station or not below the rank of head constable or prison officer not below the rank of
head warden is empowered to collect the measurements of the person. 6 As per the clause 4 of the
act the National Crime Records Bureau (NCRB) will keep a record of the data so collected in the
interest of prevention and aiding of investigation in criminal matters. The data so collected will
be kept by NCRB for the time period of seventy five years. 7 As per the clause 5 of the act if the
magistrate is satisfied that for the purpose of criminal investigation it is required for the person to
give measurements he can order to do so and refusal to do so by the person is penal offence
under section-186 of Indian Penal Code, 1860. 8 The clause 6(2) of the act also clearly mentions
that the resistance to magistrate’s order is a penal offence under this act.

The major criticism that this act is facing is in terms of violation of Article-20(3) of the Indian
constitution which mentions about right against self incrimination. The compulsion to submit the
measurements or biometric data under the said act has been criticized as it has been seen by the
5
The Criminal Procedure (Identification) Act, 2022 (11 of 2022).
6
The Criminal Procedure (Identification) Act, 2022 (11 of 2022) s 2 (1) (c).
7
The Criminal Procedure (Identification) Act, 2022 (11 of 2022) s 4.
8
The Criminal Procedure (Identification) Act, 2022 (11 of 2022) s 5.

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critiques as a compulsion to be the witness against himself which is in violation of fundamental
right of self incrimination enshrined in the constitution of India. The right against self
incrimination is recognized as a fundamental right and is based on the principle of "nemo debet
prodere se ipsum” which means no one can be compelled to blame his or herself. This right find
its basis in English common law jurisprudence, back in middle ages in England there was a
practice of inquisitorial system of law where unfair practices were involved in questioning the
accused and compelling him/her to be a witness against themselves due to this demonstrations
and processions were held by the masses against such practices and eventually right against self
incrimination evolved in common law jurisprudence. The right against self incrimination has
also been adopted by United States of America through its fifth constitutional amendment where
they have mentioned that no one can be compelled in any case to be a witness against himself
and thereafter India adopted right against self incrimination as an right of accused under article-
20(3) of the Indian constitution. After the introduction of such right the role of judiciary became
very important because the article is not detailed and left for interpretation by judiciary also
application of such a right varies from case to case basis as it depends on the facts and
circumstances of the each case so the implementation of right has been left at the discretion of
judiciary.

CHAPTER-3: JUDICIAL INTERPRETATION OF RIGHT

AGAINST SELF INCRIMINATION AND ITS VARIOUS
DIMENSIONS
From the very beginning of the introduction of the right against self-incrimination as a
fundamental right in the constitution of India, the interpretation was largely dependent on the
Indian judiciary due to its lack of descriptiveness and also because of its various dimensions, so
it was entirely dependent on the imagination of the Indian judiciary or the discretion of the
judiciary as to how to interpret and make such a right effective in the criminal law of our
country. The first significant case on this right was M P Sharma v Satish Chandra 9 in which the
Hon'ble Supreme Court of India outlined three important aspects of the right against self

9
M P Sharma v Satish Chandra AIR 1954 SC 300.

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incrimination: a.)The right applies to those who have been accused of a crime; b.) It protects
individuals from being compelled to testify against themselves; and c.) Compulsion also includes
giving evidence against themselves. The Honorable Supreme Court further ruled that this right
shall be protected by the Right to Life granted by Article 21 of the Indian Constitution, hence
theoretically this right cannot be revoked even if an emergency exists in India. State of Bombay
v. Kathi Kalu Oghad10 was another significant decision in which the Supreme Court ruled that
self-incrimination refers to providing information based on personal knowledge of the accused,
but does not encompass the mechanical process of delivering papers in court. Also, if the
document contains assertions based on the accused's own knowledge, it will not be considered
evidence but rather a witness against themselves.

In the case of Ram Lal Narang Etc. v. State of Delhi 11 Administration the Supreme Court ruled
that taking blood samples from an accused cannot be construed as obtaining his testimony or
compelling him to testify against himself, and thus cannot be considered a violation of Article
20(3) of the Indian Constitution. In the case of Sharda v. Dharampal 12 the Supreme Court of
India held that if the court thinks that it is important and essential for the investigation to go right
direction that the blood sample of accused is to be taken they can order to do so and in case if the
accused refuse to give such sample then the court can draw the negative inference from the
accused conduct. In the case of State v. M Krishna Mohan 13 the Hon’ble Supreme Court held that
mandatory taking of Palm/Thumb/Finger/Foot impressions photographs and specimen writing
etc. will not amount to be a witness against themselves therefore not be considered in violation
of article-20(3) of constitution of India. Comprehensive use of forensic science has been
suggested by the Malimath Committee from its very inception. 14 The privilege against self-
incrimination may only be used when a person accused of a crime is compelled to provide a
statement or information that is likely to incriminate him in the case. However, if the accused

10
State of Bombay v Kathi Kalu Oghad AIR 1961 SC 1808.
11
Ram Lal Narang Etc. v State of Delhi 1979 2 SCC 322.
12
Sharda v Dharampal 2003 4 SCC 493.
13
State v M Krishna Mohan AIR 2008 SC 368.
14
Jaishree Jaiswal, ‘Right of an Accused to Be Protected against Self-Incrimination -Its Availability and Emerging
Judicial Dimensions under Criminal Law’ (2012) 3 Indian Journal of Law and Justice 72.

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discloses such material willingly or upon request, he waives his privilege under Article 20(3) and
it cannot be claimed. In the case of Mohammad Dstgir v State of Madras 15 The Honorable Court
stated that this protection is only applicable to a person who is accused of a crime and is
subjected to duress for a particular operation. In the cases of Kharak Singh v State of Uttar
Pradesh16 and Govind Singh v State of Madhya Pradesh17, the question of whether DNA testing
violates the right against self-incrimination was raised before the Supreme Court, which noted
that Fundamental Rights under Part III of the Constitution are subject to various restrictions due
to public influences and are not absolute. It so does not infringe Article 20. (3). In Selvi v. State
of Karnataka18, the Supreme Court issued a precedent-setting decision in this respect. The court
was tasked with determining the legitimacy of these scientific procedures. The court stated that
the administration of different inputs into the body of the defendant, while not a physical danger,
amounted to "mental compulsion," the impact of which would be for the defendant to give
statements or evidence against his will or freely.

CHAPTER-4: CONCLUSION AND SUGGESTIONS

After reviewing the pertinent literature, statutes, and case laws, the researcher came to the
conclusion that Self Incrimination, in its essence, entails providing information to the executive
authorities based on personal information of the person providing the information; thus, in order
to be counted as a witness against themselves, the accused must provide testimony based on
personal information stored or saved in their mind. The mere collection of biological samples
from the accused does not constitute the disclosure of personal information or constitute the
accused's evidence against himself. Biological information consists of the accused's biological
characteristics, which might vary from person to person and are just suggestive throughout the
investigative process to make it more efficient.

15
Mohammad Dstgir v State of Madras AIR 1960 SC 756.
16
Kharak Singh v State of UP AIR 1963 SC 1295.
17
Govind Singh v State of MP AIR 1975 SC 1378.
18
Selvi v State of Karnataka AIR 2010 SC 1974.

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According to the Supreme Court's interpretation of the Right Against Self-Incrimination through
various cases, the researcher believes that this right pertains to the extraction of information
stored in the accused's mind that is personal to him. Physical and biological characteristics of the
accused do not fall under the Right Against Self-Incrimination, so it does not violate the
accused's rights. Also, there are a few situations or crimes in which providing biological
information of an accused can provide us with relevant findings, such as determining the
parentage of a newborn or in cases of rape in which the semen sample or blood sample can play
a crucial role in determining the guilt. For this reason, the courts have repeatedly emphasised the
use of forensic science in the investigation process to make it effective and conclusive.

After reviewing numerous case laws in which the Right Against Self-Incrimination was asserted,
it was determined by the court that a person can assert this right if he or she has been accused of
a crime, meaning that biological samples of the accused or convict can be analysed, but he
cannot assert this right if he is under preventive detention. We can thus find that the provisions of
the newly enacted law do not violate the Right Against Self-Incrimination.

BIBLIOGRAPHY
Cases

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  Govind Singh v State of MP AIR 1975 SC 1378
 Kharak Singh v State of UP AIR 1963 SC 1295
 M P Sharma v Satish Chandra AIR 1954 SC 300
 Mohammad Dstgir v State of Madras AIR 1960 SC 756
 Ram Lal Narang Etc. v State of Delhi 1979 2 SCC 322
 Selvi v State of Karnataka AIR 2010 SC 1974
 Sharda v Dharampal 2003 4 SCC 493
 State of Bombay v Kathi Kalu Oghad AIR 1961 SC 1808
 State v M Krishna Mohan AIR 2008 SC 368

Statutes

 The Constitution of India, 1950

 Indian Penal Code, 1860 (45 of 1860)
 The Criminal Procedure (Identification) Act, 2022 (11 of 2022)

Journal Article

 Raza A and Pandey P K, ‘Protection against Self-Incrimination as a Fundamenal Right

in India: A Critical Appraisal’ (2015) XLII(IV) Indian Bar Review
 Jaiswal J, ‘Right of an Accused to Be Protected against Self-Incrimination -Its
Availability and Emerging Judicial Dimensions under Criminal Law’ (2012) 3 Indian
Journal of Law and Justice
 Kaur J, ‘Changing Dimensions of Right against Self-Incrimination: An Analytical Study’
(2021) Revista de Drept Constitutional
 Jain S N, ‘Physical Examination of the Accused and the privilege against Self-
incrimination: State of Bombay v. Kothi Kalu Oghad’ (1962) 4 Journal of Indian Law
Institute

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