Right Against Self-Incrimination In Context Of Ever Expanding Technology

    This article discusses case law on right against self- incrimination. It also assesses the constitutional validity of the manner in which the evidence was obtained especially with respect to latest technological developments. It also examines whether the adjudication in the context of article 20 (3) is done within the framework of practicability or in the framework of constitutional principles. It additionally also answers the question that whether forcibly taking someone’s password or face id would be hit by article 20(3).

    As per article 20 (3), no person who is accused of any offence shall be compelled to act as witness against himself.  The court’s interpretation of this is that when you are forced to give something which is exclusively in your personal knowledge, that is what means compelling to be a witness in your case. In State of Bombay v. Kathi Kalu Oghad[1]  case judiciary was required to delimit the scope of  the article 20 (3) in light of the question that can the accused be forced to give his handwriting or his thumb impression sample and would the same be regarded as self-incriminatory and hit by article 20 (3).

    The court reasoned that a handwriting sample or thumb impression would be taken as non-testimonial evidence and would not violate article 20 (3) as it doesn’t convey any sort of personal knowledge which could be used against himself. Self – incrimination could only happen only when the accused is revealing or divulging something which is in his personal knowledge and virtue of that he could be incriminated. It doesn’t include the mechanical method of bringing any document related to the case. Handwriting, blood sample, voice sample do not fall into this category. They are physical evidence (non-testimonial) where the accused is not divulging anything based on his personal knowledge which is likely to incriminate him, it could only be used as corroborative evidence in the process of investigation. The judiciary took a historic step by narrowing down the scope of article 20 (3) which in a way gave teeth to law enforcement agencies.

    The court observed that the phrase “to be a witness” under article 20 (3) means accused is giving oral or written statements which has capacity to incriminate himself. In that sense all physical attributes, like handwriting sample, hair sample, blood sample are not taken to be  testimonial in nature. The court observed that to qualify a testimonial evidence to be self-incriminatory it should by itself have potential to incriminate the person, and this can’t be the case for fingerprints or handwriting specimen. The same reasoning was used where the accused was  force the accused to give thumb impression, voice samples, breath sample etc.

    In Smt. Selvi v. State of Karnataka[2]  the question before the court was whether narcoanalysis, FMRI Functional magnetic resonance imaging , polygraph test could be considered as constitutionally acceptable methods of collection of evidence or it violates protection against self-incrimination. The court declared these tests to be unconstitutional as they are hit by article 21 of the constitution as they violate the right to privacy of an individual.

    In Smt. Selvi v. State of Karnataka[3] case the court also commented on the derivative usage of such evidence and what basically constitute to be incriminatory. Derivative use means discovery of independent evidence based on information revealed to the police by the accused during investigation or through collection of non-testimonial evidence which establishes a link within all gathered evidence. In that sense all the materials which have potential to incriminate the accused or establish a link within the evidence collected would constitute incriminatory. The court held that this protection should be read as an integral part of personal liberty. Furthermore principle against confessions made against volition of an individual under duress is embodied in section 24 to section 27 of  Indian evidence act 1872. Article 20 (3) read along with article 21[4] and sections of evidence act give us clear answer that such tests can’t be held to be constitutionally valid.[5]

    The principle behind the provision of article 20 (3) of the constitution is to ensure credibility and voluntariness of the statements admitted as evidence.[6] Right to self incrimination prohibits divulgence of personal information pertaining to the controversy and the results obtained by such tests are by extracting thoughts accused mind which from has potential to incriminate the accused.

    But in R. M. Malkani vs State Of Maharashtra[7] the question before the judiciary was whether the individual could be held liable on the basis of incriminating materials in a recorded call conversation that the individual had with the other individual. In the above case the conversation was recorded without the knowledge of the accused and charges were framed on the basis of that recorded conversation which had incriminatory portions. Though the court said this method was wrong and termed it to be “mechanically eve- dropping device”[8] but still held the illegally obtained evidence acceptable. The court held that incriminatory statements recorded over telephonic conversation without the knowledge of the accused would be held admissible as evidence. The court reasoned that it was a mechanical process and there was no element of physical duress or coercion involved, hence the statement not hit by article 20(3).

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    Such cases reveal how courts are more concerned with conviction rather than procedural fairness. The questions which the court should have asked were whether the accused would have made the same statement if he would have known that call was being recorded. Procedures envisaged in section 27 of Indian evidence act, illegally obtained evidence, article 22 (1) has been reduced to exercise to base convictions. Court is not saying that procedural fairness is important or they will accept evidence gathered in a certain way, they are more concerned to get to the bottom of the matter. While this would be an easy way out for cops but would certainly put individual rights in danger.  Therefore the questions of collection of blood sample, semen sample, obtaining password are not as much of a self-incriminating question rather than privacy questions. The procedure enshrined within the constitution is not a driving factor for courts, hence adjudication in the context of article 20 (3) is more within the framework of practicability and not in the framework of constitutional principles.

    Mobile phones in the digital era have now become an extension of an individual’s mind. It is key to a whole lot of intimate information of an individual which could be incriminatory. No doubt usage of biometric evidence has caused tremendous increase in identification of criminals but usage of fingerprint, password, face recognition to access phones would possibly divulge a lot of incriminating material. Compelling an individual to give the password of his mobile device would hit by right against self-incrimination as the very act of providing password is testimonial in nature as the person is divulging information based on his personal knowledge. Password exists in someone’s mind and forcing someone to divulge it would mean divulging personal knowledge and would be hit by protection against self-incrimination.

    Applying the Kathi Kalu[9] standard, face id would be kept on the same pedestal as that of fingerprint as it comes in the category of non-testimonial evidence. There is no revelation of personal information by the accused , it is just a physical characteristic taken. As per the kathi kalu framework forceful decryption through face id wouldn’t be hit by right against self-incrimination.

    Strict application of the standard laid down by Kathi Kalu[10] in the technological era would be absurd, as that would mean the state can have access to an individual’s phone if he uses fingerprint or face id but the access would be denied if he uses a password. This classification is in itself absurd in the contemporary era. The court in Oghad also observed that to qualify a testimonial evidence to be self-incriminatory it should by itself have potential to incriminate the person, and forceful unlocking phone through face id or password would lead to disclosure of possible incriminatory information. When a person is compelled to unlock his cell phone through face id, then this would encroach upon his right to remain silent. We shouldn’t just focus on the means to unlock the phone whether it is through password or by face id, but the end result should be kept in mind. The focal point of focus here is that the end result by itself could turn out to be incriminatory. Encroachment by the state to access the information stored in mobile phones is hit by article 21.  Forceful decryption of mobile phone be it password , or face id would lead to disclosure of a whole lot of incriminatory information which could be used against the accused. Kathi Kalu case is not well equipped to deal with present era technology challenges hence applicability of law should resonate with technological advancements.

    References

    [1] State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808

    [2] Smt. Selvi v. State of Karnataka  Criminal Appeal 1267 of; 2004 2010(7) SCC 263

    [3] Id

    [4] https://www.barandbench.com/columns/self-incrimination-can-police-force-accused-to-reveal-password

    [5] https://indiankanoon.org/doc/10337889/

    [6]http://www.legalserviceindia.com/article/l466-Privilege-Against-Self—-Incrimination.html

    [7] R. M. Malkani vs State Of Maharashtra 1973 AIR 157, 1973 SCR (2) 417

    [8] 1973 AIR 157, 1973 SCR (2) 417

    [9] State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808

    [10] State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808


    BY ANAMTA KHAN | NATIONAL LAW UNIVERSITY , DELHI

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