Report No. 271

C. Judgments Dealing with Self-incrimination of Persons vis-à-vis Article 20(3) of the Constitution

4.7 A judgment rendered by an eleven-Judges Bench of the Supreme Court in State of Bombay v. Kathi Kalu Oghad & Ors.11 dealt with the issue of self- incrimination and held:

Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge.

Example was cited of an accused who may be in possession of a document which is in his writing or which contains his signature or his thumb impression. It was observed that production of such document with a view to comparison of the writing or the signature or the impression of the accused is not the statement of an accused person, which can be said to be of the nature of a personal testimony. I may quote another relevant observation of this Court: When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'.

The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness.

[Emphasis added]

4.8 Thus, the Court concluded that giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness' as the latter would mean imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise.

4.9 In Smt. Selvi & Ors. v. State of Karnataka,12 a three-Judge Bench of the Supreme Court considered whether involuntary administration of certain scientific techniques like narco-analysis, polygraph examination and Brain Electrical Activation Profile (BEAP) tests and the results thereof are of a 'testimonial character' attracting the bar of Article 20(3) of the Constitution. The Court held: ...it was observed that the scope of 'testimonial compulsion' is made clear by two premises. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to 'personal testimony' thereby coming within the prohibition contemplated by Article 20(3).

In most cases, such 'personal testimony' can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or furnish a link in the chain of evidence. It was held that all the three techniques involve testimonial responses. They impede the subject's right to remain silent.

The subject is compelled to convey personal knowledge irrespective of his/her own volition. The results of these tests cannot be likened to physical evidence so as to exclude them from the protective scope of Article 20(3). This Court concluded that compulsory administration of the impugned techniques violates the right against self-incrimination. Article 20(3) aims to prevent the forcible conveyance of personal knowledge that is relevant to the facts in issue. The results obtained from each of the impugned tests bear a testimonial character and they cannot be categorized as material evidence such as bodily substances and other physical objects.

4.10 In Ritesh Sinha v. State of U.P 13 the questions arose as to whether a Voice Spectrographic Test without the consent of a person offends Article 20(3) of the Constitution and in case the said provision is not violated, whether a magistrate, in absence of any statutory provision or inherent power under the provisions of the Criminal Procedure Code 1973 (Cr. P.C.) has competence to direct a person to be subjected to such a test without his consent.

4.11 The Court held that taking such test would not violate the mandate of Article 20(3) of the Constitution as has been held by the Supreme Court in Selvi14. However, there had been different views on the second question.

4.12 The Hon'ble Justice Ranjana Desai observed: In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53A and 54 of the Cr. P.C. It must also be clarified that a `DNA profile' is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law-enforcement agencies.

The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts. It may also be recalled that the as per the majority decision in Kathi Kalu Oghad, (State of Bombay v. Kathi Kalu Oghad & Ors., AIR 1961 SC 1808) the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20(3). Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain.

[Emphasis added].

4.13 However, another judge Hon'ble Justice Aftab Alam observed: There are, indeed, precedents where the court by the interpretative process has evolved old laws to meet cotemporary challenges and has planted into them contents to deal with the demands and the needs of the present that could not be envisaged at the time of the making of the law. But, on the question of compelling the accused to give voice sample, the law must come from the legislature and not through the court process. [Emphasis added]

4.14 However it is to be noted that due to the difference of opinion in the bench, the matter is pending consideration before the larger bench.