No Self-Incrimination

In one line

A person accused of an offence may not be compelled to convey information based on his own personal knowledge, and that protection begins at police interrogation rather than at the trial, but it does not extend to a fingerprint, a handwriting sample or the seizure of a document.

The provision

Article 20(3). No person accused of any offence shall be compelled to be a witness against himself.

Three elements have to be satisfied, and every case in this chapter turns on one of them.

• The person must be accused of an offence.
• There must be compulsion.
• What is compelled must amount to being a witness against himself.

The first construction

M. P. Sharma v. Satish Chandra, AIR 1954 SC 300, decided by eight Judges, was the first authoritative construction. The petitioners challenged searches and seizures of documents under the search warrant provisions of the procedure code.

The Court held that a compelled production of incriminating documents by a person against whom a first information report has been made is testimonial compulsion within article 20(3), but that a search and seizure of a document is not a compelled production and so does not offend the Article, being only a temporary interference with the right to hold the property.

The judgment also contains a passage on privacy, and it is the one thing in it that is no longer law. A Bench of nine Judges in K. S. Puttaswamy v. Union of India, AIR 2017 SC 4161, held that the decision stands overruled so far as it held that the right to privacy is not protected by the Constitution, and declared that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and as a part of the freedoms guaranteed by Part III. What follows is therefore set out as the reasoning that was displaced, and not as the present law. A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security, necessarily regulated by law; and where the Constitution makers thought fit not to subject that regulation to constitutional limitations by recognising a fundamental right to privacy analogous to the American Fourth Amendment, there is no justification for importing into it a totally different fundamental right by some process of strained construction.

The settled content: the five propositions

State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, decided by eleven Judges, reconsidered M. P. Sharma and stated the position in five propositions which are still the law.

The question arose because the evidence law empowers a court to take an accused person's specimen writing, signature and finger impressions for comparison, the Identification of Prisoners Act allows a Magistrate to take his photograph and measurements, and the discovery provision allows a statement made in police custody which leads to a discovery to be proved. The accused said all of these compelled them to be witnesses against themselves.