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In the case of Selvi v. State of Karnataka, (2010) 7 SCC 263, it was held that;
- The interrelationship between the “right against self incrimination” and the “right to fair trial” has been recognised in most jurisprudence as well as international human rights instruments. For example, the US Constitution incorporates the “privilege against self-incrimination” in the text of its Fifth Amendment. The meaning and scope of this privilege has been judicially moulded by recognising its interrelationship with other constitutional rights such as the protection against “unreasonable search and seizure” and guarantee of “due process of law”. in the International Convent on Civil and Political Rights, 1966, Article 14 (3) (g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. in the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Article 6 91) states that every person charged with an offence has a right to a fair trial and Article 6 (2) provides that “everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law.” the guarantee of “presumption of innocence” bears a direct link to the “right against self-incrimination” since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt.
- In the Indian context, Article 20 (3) should be construed with due regard for the interrelationship between rights, since this approach was recognised in Maneka Gandhi case. Hence, we must examine the “right against self-incrimination” in respect of its relationship with the multiple dimension of “personal liberty” under Article 21, which includes guarantees such as “right to fair trial” and “substantive due process”.
- The right of refusal to answer questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the “right to fair trial”.
- Since the extension of the “right against self incrimination” to suspects and witness has its basis in section 161 (2) CrPC, 1973, it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20 (3) cannot be invoked by witnesses during proceeding that cannot be characterised as criminal proceedings.
- Whether the results obtained through polygraph examination and the BEAP test should be treated as testimonial responses?
Ordinarily evidence is classified into three broad categories, namely, oral testimony, documents and material evidence. The protective scope of Article 20 (3) read with section 161 (2) CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20 (3) is decided by the trial Judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20 (3). Furthermore, even testimony in oral or written from can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that it already in the possession of investigators.
- So far, the judicial understanding of privacy in our country has mostly stressed on the protection of body and physical spaces from intrusive actions by the state. While the scheme of criminal procedure as well as evidence law mandates interferences with the physical privacy through statutory provisions that enables arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person “to impart personal knowledge about a relevant fact.” The theory of interpretation of rights mandates that the tight against self -incrimination should also be read as component of “personal liberty” under Article 21. Hence, our understanding of the “right to privacy” should account for its intersection with Article 20 (3). Furthermore, the “rule against involuntary confessions” as embodied in section 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objective of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Article 20 93) and 21 of the Constitution along with the principles of evidence law leads us to clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual decision to make statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.