Right Against Self-Incrimination

Introduction

• Self-incrimination is a legal principle under which a person cannot be compelled to provide information or testify against themselves in a criminal case. In various jurisdictions, including the US and India, the right against self-incrimination is enshrined as a constitutional or legal protection. The doctrine is based upon the following legal maxim:
  • Nemo teneteur prodre accussare seipsum – It states that a man cannot be compelled to state any self-incriminating statement.

Self-Incrimination as a Fundamental Right

• The makers of the Constitution have borrowed several features from other constitutions of the world and the model for Fundamental Rights in India is adopted from the Constitution of the US.
• In USA, the Fifth Amendment to the Constitution guarantees the right against self-incrimination whereas in India, the right against self-incrimination is recognized and protected under Article 20(3) of the Constitution of India, 1950 (COI).
• Article 20 - Protection in respect of conviction for offences - (3) No person accused of any offence shall be compelled to be a witness against himself.

Supreme Court Cases

• Nandini Satpathy v. P.L. Dani (1978), the importance of the right against self-incrimination was affirmed in this case. The Court held that the right extends to both accused persons and witnesses, emphasizing that no one can be forced to incriminate themselves under any circumstances.
• Selvi v. State of Karnataka (2010) the SC in this case considered the constitutionality of various neuroscientific investigative techniques including narcoanalysis, BEAP (Brain Electrical Activation Profile) or brain mapping, and polygraph tests. The court opined that a narcoanalysis test without the consent of the accused would amount to violation of the right against self-incrimination.
  • However, collection of DNA samples from the accused is permitted and if the accused refuses to give the sample, the court can draw adverse inferences against him under Section 114 of the Indian Evidence Act, 1872.
• Ritesh Sinha v. State of Uttar Pradesh (2019), SC has broadened the parameters of handwriting samples to include voice samples, adding that this would not violate the right against self-incrimination. It was also declared that a Magistrate has the power to direct a person to compulsorily give voice samples during the course of investigation.
• Chanda Deepak Kocchar v. Central Bureau of Investigation (2023), the court however, observed that where the accused has not co-operated and not given true and correct disclosure it becomes no ground to arrest him.

Arrest and Self-Incrimination

Arrest of a person is a legal process by which a person is taken into custody by law enforcement authorities. It's important to note that while individuals have the right to remain silent and avoid self-incrimination, this does not mean that they cannot be arrested or prosecuted. The person cannot be compelled to provide information that would directly incriminate them.

• In a landmark case, D.K. Basu v. State of West Bengal (1997) the SC laid down guidelines to be followed by the police during the arrest or detention of individuals majorly being:
  • Identification of Police Personnel: Police personnel carrying out an arrest or interrogation must wear clear and visible identification.
  • Memo of Arrest: A memo of arrest must be prepared at the time of arrest, including the time and date of arrest and the identity of the arresting officer. This memo should be attested by at least one witness, preferably a family member or local person of the area.
  • Right to Inform: The arrested person has the right to inform a friend, relative, or someone known to them about the arrest and the place of detention.
  • Right to Legal Aid: The arrested person has the right to be informed about their right to legal representation. The police should also inform the person of their right to be represented by a lawyer during interrogation.
  • Intimation to Next of Kin: The police should inform the next of kin of the arrested person about their arrest and place of detention.
• In the landmark judgement of Arnesh Kumar v. State of Bihar (2014), the SC held that every arrest must satisfy the essentials of Section 41 and 41A of the Code of Criminal Procedure, 1973 (CrPC). It was also held that the police officers must table the reason behind making that arrest.
• In Satendra Kumar Antil v. CBI (2022), SC held that power to arrest does not mean compulsion to arrest, the bench in this matter held a strict attitude towards non-compliance with Section 41A of CrPC.
  • The accused’s adherence to notice under Section 41A will be considered as his cooperation in the procedure and any non-compliance would entitle the accused to a grant of bail.

Section 41 and 41A of CrPC

• A police officer can arrest without warrant in a cognizable offence under Section 41 of CrPC.
• As per Section 41A, the police officer must issue a notice directing an accused to be present before him in cases where arrest is not required. Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

Conclusion

The principle of self-incrimination is a testament to the protection of individual rights and dignity within legal systems. It stands as a barrier against abuse, coercion, and unjust prosecutions.