The paper is authored by Shruti Khanna, fourth-year law student at Institute of Law, Nirma University. Her main interests lie in corporate and business laws.
ABSTRACT-
The law of a country has two major roles. Firstly, Punishing the guilty accused, the ones who have breached the law. Secondly, the role of protecting the society, its citizens. Protection again has two aspects; to protect the society from such offenders and criminals while the second one of protecting those who are suspected of doing a wrong but not confirmed of doing so. What part of the law citizens become is a matter of choice. Most of us are civilians and choose to live a peaceful life with utmost liberty for ourselves and that for the ones around us. The paper focuses on the right to self-incrimination and further explains what it means and how it is applicable in the criminal justice system of our country. Self-Incrimination is the privilege given to an individual that guarantees that- “no person accused of any offence shall be compelled to be a witness against himself.”[1] Article 20(3) of the Indian Constitution is specific in nature since it is for the individuals who are accused of doing an offence or any act which is against the law of the country. Now the question that arises is whether the advancement in the medical tests used in order to bring out evidence in investigation contravene the individual rights. The measures of the various medical tests are discussed. Do these techniques amount to being immoral and infringe the natural rights is a big question.
INTRODUCTION TO SELF-INCRIMINATION-
The law of a country has two major roles and aspects that govern the legal system. Firstly, to punish the guilty, the ones who have breached the law. Secondly, to protect the society, its citizens. Protection again has two different components; to protect the society from such offenders and criminals while the second one of protecting those who are suspected of doing a wrong but not confirmed of doing so. What part of the law citizens become is a matter of choice. Most of us are civilians and choose to live a peaceful life for ourselves and that for the ones around us. There are those who make such choices in life that form a part of the evil. Plato attributed to humans “an element of free choice, which makes us all responsible for the good and the evil of our lives and that of others[2]”. Well, this is considered to be a privilege because of its specific nature of providing protection to those who are being interrogated but are yet to get a sentence of being guilty. Right to silence forms the basis of this provision. No accused shall be compelled to be a witness against himself, word ‘compelled’ should be focused on. To be compelled in itself would mean involuntary act thereby being inhuman and derogatory to privacy since it would be hampering the right to life and personal liberty of an individual. [3] A person would have a free choice if he wishes to make statements in the courts, in front of magistrates without any force or prompting. Giving a testimony in itself is volitional. The paradox of volitional-but-compelled testimony explains why the self-incrimination clause continues to puzzle courts.[4] The privilege exists to stimulate the prosecution to do fair searches in order to find evidences against the guilt of the accused by their own investigations rather than relying on the testimony given by the accused, which could also be done through force.
MEDICAL TESTS AND NATURAL RIGHTS-
There are various debates regarding privilege and various interpretations. The DDT, i.e., The Deception Detection Tests such as narco-analysis, polygraph and brain mapping have ethical, scientific and legal implications. These are widely used by the investigating agencies to find the underlying evidence which are only known to the subject. However, none of the information extracted through these medical tests cannot be used as substantive evidence in the court trials. Usage of such techniques helps the prosecution to gather evidence thereby increasing the rate of prosecution of the guilty and the rate of acquittal of the innocent.[5] The landmark judgement has further clarified that these methods though claimed to be more accurate, cannot be administered without the consent. The debate arising out of the legality of using DDT in the interrogation of the accused to collect evidence is because of the view of it being inhuman and degrading. Usage of such methods has both viewpoints, one that these should be applicable now that the crime rates are increasing drastically, while the second notion lies completely opposite of that these methods are violative of constitutional provisions. In one of the judgements, the court held that the narco-analysis test is a step-in aid of investigation as it may lead to evidence and therefore does not count to be in contrast to the constitution. [6] These methods when in relation to involuntary administration is concerned account for clear violation of fundamental rights such as i.) ‘Right against self-incrimination’ as given in Art. 20(3) of the constitution and ii.) Art. 21 ‘Right to life and personal liberty’ since it includes a ‘right against cruel, inhuman or degrading treatment’. [7] The human rights of an individual are violated and concerns regarding the same were raised in the National Human Rights Commission.
Since the human rights of an individual are at question, it depicts the lack of morality. Any act which is inhuman, cruel is immoral. For Hart, Law and Morality are two different yet interrelated concepts. According to Hart, Law, Coercion, and Morality are different but related social phenomena. He always upheld the importance of morality in law. Law is subject to moral scrutiny[8]. If the laws made are not moral, they are not laws. Morality by him was linked to practical reasoning since the difference between the good and the bad is subject to practical reasoning. The unreasonable searches and seizures are in contradiction to morality since one should not enter the private spaces of another. The importance certain criminal procedures and methods are well necessary but they shouldn’t completely disregard the rights given to an individual, to suppose, the right to silence that comforts with respect to an accused individual also deserves equal attention and significance. According to Hart, if there are any rights at all, there must be the right to liberty.
In the narco-analysis test a drug such as a sodium pentothal, scopolamine and sodium amytal are administered to the subject that causes the subject to have the effect of anaesthesia. Due to the same the subject is unable to act in a relaxed or rather natural way because of self-consciousness or mental restraint and therefore is able to communicate information, which wouldn’t have been revealed in a conscious state of mind. The major drawback of this technique is that the subject becomes extremely suggestible to the questioning, therefore the investigators often tend to frame questions in such a manner that they prompt incriminatory responses. The statements made by the subject are not voluntary and hence aren’t admissible in the court of law. When these are administered ‘without consent’ a number of issues are raised, i.) To wake a subject from hypnotic state, physical assaults such as pinching, slapping, shaking the body, hitting are done, ii.) It also becomes a part of mental assault since the drug makes the subject vulnerable and that gives the investigators unrestricted access to the utmost privacy of the subject’s mind.
The polygraph tests administered is basically a lie detector test. When the subject is asked a number of questions which he might be lying about make him enter into a hyper-arousal state which is noted by the person conducting the test. The same is measured by a number of parameters such as heart rate, blood pressure, respiratory rate, skin conductance and electromyography.[9] The flaw in this technique is that the measured changes in the arousal state of the subject need not be necessarily because of the lying or because of hiding any information. They could be triggered because of nervousness, fear, confusion, psychosis, substance induced, depression, substance withdrawal state or other emotions. Hence, the reliability of these tests is highly questionable.
Brain mapping, measures the changes in electrical potentials of the brain by neuronal activity by the means of electrodes being placed on the skin of the subject on the head and the face. During the test, the subject is shown or are made to hear certain pictures and pictures which are relevant to the facts. Those who are guilty suspects would emit P300 wave components which tells about the familiarity of the subject with the information related to the crime[10]. However, this technique also does not serve the whole purpose. It only measures the memory or knowledge of the crime scene of the subject. It is again not necessary that the subject is aware of the crime because of being involved in it, he could be having knowledge about the crime because reading about the same in the media such as in television, movies and newspapers.
DDT has faced a number of criticisms and still the reliability of it remains unclear since to what extent they should be administered is a matter of individual as well as human rights of the subject. These proceedings cause delays, lead to numerous complications. The Supreme Court decision on DDT is consistent with the scientific, human and legal rights and gave the decision that involuntary DDT has no place in the judicial process. [11]
The medical science though advance is in contradiction with the natural law rights that all of us possess. The esteemed thinkers such as Aristotle and John Locke determined the importance of natural rights and establishing the jurisprudence of the laws so made. Over the years, the natural rights doctrine is being replaced by a needs-based or dependency-based human rights. Locke, emphasised “life, liberty, property” as primary rights. [12]Everyone is entitled to live with dignity, respect and sufficiently to fulfil his own needs without hampering the rights of others. All the citizens have the right to be free within a society and should be free from any oppressive restrictions imposed by the authorities. For Locke, it was the purpose of the government was to protect the natural rights of its citizens which people automatically earned simply by being born. The DDT this happens to contravene the natural rights of the subject on whom these tests are administered.
PROVISION OF SELF-INCRIMINATION IN OTHER COUNTRIES-
Many countries deny their people the privilege against self-incrimination since they view it in a different way. They find it necessary to not have such a right so that the defendants are compelled to tell the truth, so the guilty are not set free. While others like India believe the right to self-incrimination and to remain silent should be availed because the privilege represents freedom. In the United States of America, The Bill of Rights prevents self-incrimination. In the Fifth Amendment the same has been stated. This privilege in America is a personal one. In England and Wales, every person has a right not to incriminate themselves, both under domestic law and under the fair trial provisions contained in Art. 6 of the European Convention on Human Rights.[13] Northern Ireland didn’t have the right to silence until 1988. It was then in the Criminal Evidence (Northern Ireland) Order (CENI) in December 1988 that the defendant can choose to remain silent. In civil law countries like Republic of Korea, before the new constitution in 1987, there was a lot of torture, illegal arrests, detentions made as well as confessions in the courts were also made. The Bill of Rights of 1987 now includes the right against self-incrimination. In China, the privilege against self-incrimination is related to strict prohibition to extort confessions by torture, threat, enticement or other illegal means whatsoever. However, the human rights of individuals are still to date violated and police do use torture on suspects to obtain forced confessions.
CONCLUSION-
In this era of advanced technologies and modern medical it has become easier to solve crimes and resolve the underlying mysteries. The forensic scientists with the help of technology are able to process samples and evidence. The analysis of evidence, fingerprints, DNA Identification, analysing drugs or chemicals, body fluids, brain mapping, polygraph tests and narco-analysis provide efficient ways and are considered to bring the better future of the forensic department. The scientifically based information through analysis makes the investigation clearer which plays a vital role in the criminal justice system. Although the major drawback of the advancements is that the accused or the subject to whom these tests are administered faces violation of his rights. The right to self-incrimination is a part of fundamental rights of the nation, and these shall not be violated in any way whatsoever. The techniques used either bring out self-incriminatory statements, mentally or physically abuse the subject, or are not completely reliable because of its applicability and measurements being questionable. What comes above all of this is the natural rights. The rights that are above and beyond and superior to laws made by man and are certain principles of great importance. To abide by the same, no such laws, sciences, moral studies should be in contradiction to natural rights. The natural rights are earned by an individual as soon as he enters the world and exercises the same throughout his life course. Also, as the Blackstone puts it, “It is better to let some guilty individuals be set free than to mistakenly convict an innocent person and let him suffer”. [14] The maxim also emphasises the protection of the innocent and the need to ensure that any person accused of a crime is given the benefit if doubt and is to presumed to be innocent until proven guilty.
Also read - Forensic Science in Criminal Investigation and Trial
Also read - How To Be Rich[1] Indian Constitution/Article 20(3).
[2] PLATO, THE REPUBLIC 250 (F.M. Cornford trans. 1945).
[3] Indian Constitution/Article 21.
[4] George C.II Thomas & Marshall D. Bilder, Aristotle’s Paradox and the Self-Incrimination Puzzle, 82 J. Crim. L. & Criminology 243 (1991-1992)
[5] Smt. Selvi & Ors Vs State of Karnataka Judgment on 5 May 2010.
[6] 2008. Sh. Shailender Sharma v. State. Sh. Shailender Sharma v. State
[7] Smt. Selvi & Ors Vs State of Karnataka. Smt. Selvi & Ors Vs State of Karnataka Judgment on 5 May 2010.
[8] Peter Cane, Morality law and conflicting reasons for actions, The Camb. Law Jour., Vol. 71 No.1, pp. 59-85 (2012)
[9] Suresh Bada Math, Supreme Court on polygraph, narco-analysis & brain mapping, IJMR 2011-July
[10] Directorate of Forensic Science, Ministry of Home Affairs, Government of India; 2005. Laboratory procedure manual. Brain electrical activation profile
[11] Smt. Selvi & Ors Vs State of Karnataka Judgment on 5 May 2010.
[12] Kunze, Fred, A biography of John Locke American History from revolution to reconstruction and beyond
[13] Murray v. UK ECHR 3 at para. 45, (1996)
[14] Blackstone’s Ratio-Principle.
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