THE PRIVILEGE AGAISNT SELF-INCRIMINATION: BALANCING

INDIVIDUAL RIGHTS AND THE INTERESTS OF JUSTICE

Law Of Evidence

Submitted by

Divyaraj Jain

SM0121021

3rd Year & 6th Semester

Submitted to

Dr. Amol Deo Chavhan

Associate Professor of Law

National Law University and Judicial Academy, Assam

 TABLE OF CONTENT
TABLE OF CASES........................................................................................................................3

TABLE OF STATUTES................................................................................................................3

INTRODUCTION.........................................................................................................................4

Aim and Objective.......................................................................................................................4

Scope and Limitation...................................................................................................................4

Literature Review........................................................................................................................5

Research Question.......................................................................................................................6

Research Methodology................................................................................................................6

1. RIGHT AGAISNT SELF INCRIMINATION: ARTICLE 20(3).......................................7

2. NARCO-ANALYSIS & SELF-INCRIMINATION...........................................................11

3. INTERPLAY OF RIGHT TO PRIVACY AND RIGHT AGAINST SELF

INCRIMINATION.......................................................................................................................13

4. SECTION 27: BALANCING ACT OR A LOOPHOLE?.................................................15

CONCLUSION............................................................................................................................19

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 TABLE OF CASES
NAME OF CASE CITATION
Narayan Lal Bansi Lal v. Maneck Phiroz AIR 1961 SC 29 : (1961)1 SCR 417.
Mistry
Nandini Satpathey v. P. L. Dani AIR 1978 SC 1025.
Balasaheb v. State of Maharashtra (2011) 1 SCC 364.
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808
State (Delhi Administration) v. Jagjit Singh AIR 1989 SC 598
State of Bombay v. Kathi Kalu Oghad 1961 AIR 1808.
Amrit Singh v. State of Punjab AIR 2007 SC 132
Ritesh Kumar v. State of U. P. AIR 2013 SC 1132
V.S. Kuttan Pillai v. Ramakrishnan & Others AIR 1980 SC 185.
M. P. Sharma v. Satish Chandra (1954) 1 SCR 1077
Selvi v. State of Karnataka AIR 2010 SC 1974
Ritesh Kumar v. State of U. P AIR 2013 SC 1132
U.S. v. SolomonU.S. v. Solomon 753 F.2d.1522 (9th Cir. 1985).
Dinesh Dalmia v. State 2007 AIR SCW 3006
D.K. Basu v. State of West Bengal AIR 1997 SC 610.
Subramanya v. State of Karnataka 2022 SCC OnLine SC 1400

TABLE OF STATUTES
NAME OF STATUTE YEAR
Constitution of India 1950
Indian Evidence Act 1872

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 INTRODUCTION
A declaration or action taken during an investigation in which a subject or witness implicates
oneself, either directly or indirectly, is referred to as self-incrimination, according to Black's Law
Dictionary. According to the Legal Information Institute, Cornell Law, it can also be described
as the act of incriminating oneself in a crime or exposing oneself to criminal prosecution. The
Indian Constitution's Article 20(3) addresses self-incrimination. “No person accused of any
offense shall be compelled to be a witness against himself.” What does it mean to be a witness
against oneself? It implies that the accused will provide the court with proof that establishes his
own guilt for the offense. Indian nationals are shielded from being coerced into testifying against
themselves under this article. The balance between individual rights and the pursuit of justice is
often tested in the context of the privilege against self-incrimination. Law enforcement tactics
sometimes lean towards coercion, leveraging threats, inducements, or deception to extract
statements from the accused, often leading to involuntary admissions that may or may not be
truthful. Paradoxically, wrongdoers can exploit this privilege to withhold crucial information,
potentially securing their freedom despite their culpability. These dynamic challenges the
reliability of statements obtained through interrogation, raising fundamental questions about the
integrity of the justice system. Balancing these competing interests remains a perennial challenge
in ensuring both the protection of individual rights and the pursuit of truth in legal proceedings.

Aim and Objective

The aim of this paper is to enhance the understanding of the concept of ‘Privilege against Self-
Incrimination’ and to weight the different sides of the principle. This is to be done by considering
both sides of the debate between balancing individual rights and the general interest of justice.

Scope and Limitation

The project has limited scope focusing majorly on the constitution and the Indian Evidence Act.
Since the provision is majorly constructed by judicial pronouncements other than Article 20(3)
and the ever changing stance of Judiciary and the abundance of case law has been a limiting
factor.

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Literature Review

 Pankaj Kumar Pandey & Aqa Raza, 'Protection Against Self-Incrimination' as a

Fundamental Right in India: A Critical Appraisal’
Pankaj Kumar Pandey & Aqa Raza delve into India's complex legal landscape concerning the
right against self-incrimination. They trace its historical evolution and meticulously analyze
its application within criminal proceedings under Article 20(3) of the Indian Constitution.
The study scrutinizes the interplay between this right and other legal principles, including
search and seizure powers, and highlights the judiciary's crucial role in adjudication.
Examining both constitutional provisions and procedural aspects outlined in the Code of
Criminal Procedure, Mittali and Mishra navigate the delicate balance between the right to
remain silent and the imperatives of criminal justice. They also address contemporary
challenges posed by scientific advancements and social media, offering insights into the
evolving dynamics of criminal investigations. Overall, their study provides a comprehensive
analysis of the right against self-incrimination, emphasizing the need for nuanced approaches
to safeguard individual liberties while ensuring effective justice administration.

 Aditya Sarmah, ‘Privacy and the right against self-incrimination: Theorising a criminal
process in the context of personal gadgets’
Aditya Sarmah's work scrutinizes the constitutionality of Section 27 of the Indian Evidence
Act, focusing on its potential violation of the right against self-incrimination under Article
20(3) of the Indian Constitution. Sarmah critiques the admission of custodial statements or
confessions under Section 27, arguing that it may lead to police misconduct and custodial
torture. He suggests a need for legislative or judicial review of this provision. The analysis
spans several chapters, discussing the placement of the Indian criminal justice system within
the Due Process Model, examining the legal and constitutional issues surrounding Section
27, and classifying jurisprudential interpretations into four distinct schools of thought.
Sarmah also explores the historical and textual dimensions of the right against self-
incrimination, highlighting its protection against various forms of compulsion. Overall,
Sarmah's work underscores the importance of reconciling Section 27 with constitutional
safeguards and advocates for a re-evaluation of its application to ensure alignment with
fundamental rights.

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Research Question

 What is Right against Self-Incrimination?

 What is the constitutional provision for it?
 What is the relation between right to privacy and right against self-incrimination?
 What is the provision for it under Indian Evidence Act?

Research Methodology

Research Methodology The project is formulated using doctrinal research methodology

composing of a descriptive and detailed analysis of legal rules found in primary sources (cases,
statutes, or regulations). In primary sources legal statutes and judgements are referred to, while
in secondary sources 5 books and articles by various academicians are refereed to. In reference
style, bluebook 20th edition is used.

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 1. RIGHT AGAISNT SELF INCRIMINATION: ARTICLE 20(3)
The provision to self-incrimination is contained under Article 20(3) of the Indian Constitution
which reads as ‘No person accused of any offence shall be compelled to be a witness against
himself.’

The right to silence has various ingredients:

i. A person accused of offence

The right to silence, guaranteed under Article 20(3) of the Indian Constitution, is only available
to those who are formally accused of a crime. This right can be exercised during both
investigations and trials. The Supreme Court case of Raja Narayan Lal Bansi Lal v. Maneck
Phiroz Mistry1clarifies that simply suspecting someone or including them in a complaint doesn't
automatically grant them the right to remain silent. A formal accusation must be made for this
right to apply. In simpler terms, you can't claim the right to silence just because you think you
might be accused of something. There needs to be a clear and official accusation against you
before you can choose to stay silent.
Even if the name of the person is not mentioned in the FIR, he can claim the right. This right was
extended after the case Nandini Satpathey v. P. L. Dani2. It said that “right extends to witnesses in
the same manner as it was given to the accused”. The person who is accused at the present may
not be accused in the future. In Balasaheb v. State of Maharashtra3 the court held that “an
accused in a complaint case who is also a witness in police case of the same incident, that person
cannot claim the immunity of right to silence from testifying in the police case based on Article
20(3). The person has the leverage to refuse to answer only those questions which might
incriminate him.”

ii. The compulsion to be a witness

In the landmark judgement of State of Bombay v. Kathi Kalu Oghad4, the court defined the
meaning of ‘to be witness’ as ‘to furnish evidence’ and said “compulsion includes threatening,

1
AIR 1961 SC 29 : (1961)1 SCR 417.
2
AIR 1978 SC 1025.
3
(2011) 1 SCC 364.
4
AIR 1961 SC 1808.

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beating, etc. It was also said, it must be shown that the accused was compelled to make
statements that would incriminate him.”

Likewise, in the case of State (Delhi Administration) v. Jagjit Singh 5 the court held that “if once
an accused is approved pardon under section 306 of Cr.P.C. then he ceases as an accused and
becomes a witness for the prosecution and the evidence by him as approver cannot be used
against him in other cases as he is protected according to the proviso to Section 132 of Indian
Evidence Act. The proviso of section 132 protects the witness directly or indirectly to incriminate
himself and being prosecuted for not giving answers in criminal proceedings.”

iii. Accused cannot be compelled to give evidence “against himself”

During an inquiry, an accused person may be required to turn over any recorded voicemails,
photos, blood samples, hair samples, or other bodily materials that may be used for DNA testing.
The right is subject to a few exclusions.

In case State of Bombay v. Kathi Kalu Oghad6 it was stated that” compulsion is duress; it must be
physical objective act and not the state of mind of the person who is making the statement,
except in the situation where the mind of the person has been conditioned by some extraneous
process as to render the making of the statement involuntary and, therefore, extorted.”7

In Amrit Singh v. State of Punjab8 the Supreme Court observed that “even though the accused has
the protection under self-incrimination to not give his hair but if court started to consider these
kinds of situations under self-incrimination, then the right might be misused by many accused. In
Ritesh Kumar v. State of U. P. 9 it was held that voice samples asked to person during the
investigation does not violate article 20(3). Court gave us the phrase of ‘privacy is not absolute
and must bow down to compelling public interest’.”

Similarly, In V.S. Kuttan Pillai v. Ramakrishnan & Others10, the court held that “a search warrant
may be issued to procure the documents and they can be recovered from any person who is

5
AIR 1989 SC 598.
6
1961 AIR 1808.
7
Kumar Pandey, P., & Raza, A. (2015). 'Protection Against Self-Incrimination' as a Fundamental Right in India: A
Critical Appraisal. Indian Bar Review, 42(4).
8
AIR 2007 SC 132.
9
AIR 2013 SC 1132.
10
AIR 1980 SC 185.

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found in possession of it and such a search is not violative of the constitutional right guaranteed
under Article 20(3). This Article is also not violated when the accused is asked to show up his
face for identification and can be ordered to disclose any scar or mark on his body for
identification.”

Judicial approach to article 20(3)

The case laws of Article 20(3) went through an interesting journey by taking a landmark
judgment of case State of Bombay v. Kathi Kalu Oghad, the court defined “the meaning of ‘to be
witness’ as ‘to furnish evidence’ and included only oral and written testimony based on personal
knowledge which can provide evidence. Whereas fingerprints, impressions of palm or fingers,
exposing any body part of the accused or signature or handwriting samples were given protection
under Article 20(3)”. It made a significant contribution in evolving the journey of self-
incrimination and refined the meaning of ‘being a witness against himself’ by taking the
precedent case of M. P. Sharma v. Satish Chandra11. The question brought before the court was
“whether search and seizure under Section 94 and 96 of Cr.P.C violated Article 20(3) of the
Indian Constitution”. The court looked upon the meaning of witness as per section 139 of the
Indian Evidence Act and held that “a person furnishing a document is to be taken as a witness”.
The eight-judge bench recognizing a search and seizure process held that “the protection applied
primarily to ‘testimonial compulsion’”. Justice Jagannadhadas held “that ‘to be a witness’ was
equivalent to furnishing evidence which constituted production of documents from accused
possession, oral testimony or documentary evidence from any person who may become accused
from future proceedings are treated as constitutional and legal under article 20(3)”.

The M.P. Sharma case established a distinction between testimonial and physical evidence. It
defined self-incrimination as the communication of information based on personal knowledge,
highlighting that spoken testimony depends on the accused's choice to speak or remain silent.
However, this case was later reinterpreted and narrowed down by the Kathi Kalu Oghad case.
Oghad recognized that the protection of Article 20(3) should not be limited just to spoken
statements. It broadened the scope to encompass written statements as well, preventing a narrow
interpretation that could undermine the right's purpose. The Oghad case also clarified that non-
verbal evidence like handwriting samples, fingerprints, and footprints fall outside the scope of

11
(1954) 1 SCR 1077

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Article 20(3). These were previously considered outside the realm of "personal testimony" under
the Indian Evidence Act. In essence, the Oghad judgment significantly altered the interpretation
set by the M.P. Sharma case, offering a more comprehensive understanding of the right to silence
in the context of non-verbal evidence.12
Several subsequent cases after Oghad helped to solve the conflict among different statutes and
interpretations. In Selvi v. State of Karnataka13 constitutionality of Narco Analysis Test,
Polygraphy Test, and Brain Mapping Test were challenged. The court ruled that “such tests
involved the use of advanced scientific methods are a forcible intrusion in mind of accused and
should be banned as they not only violated Article 20(3) but invaded the privacy and liberty of
individuals under Article 21 of the Indian constitution”. This case re-interpreted the meaning of
self-incrimination according to the situations which lead to social change and technology.

In Ritesh Kumar v. State of U. P. 14 it was held that “voice samples asked person during the
investigation does not violate article 20(3). Court gave us the phrase of ‘privacy is not absolute
and must bow down to compelling public interest.’ The voice sample given by the accused is
merely an identification data for the investigation.”

2. NARCO-ANALYSIS & SELF-INCRIMINATION

To highlight the modern day, we are all well aware of how technology is advancing and how
crime is rising in India. It is now essential to use technology and scientific procedures since
12
Sekhri, A. (2019). The right against self-incrimination in India: the compelling case of Kathi Kalu Oghad. Indian
Law Review.
13
AIR 2010 SC 1974.
14
AIR 2013 SC 1132.

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criminals today take every precaution and leave no trace of their crimes. Whether or not these
tests violate Article 20(3) of the Constitution has been a topic of discussion about the
acceptability of scientific approaches for improving investigation.

‘The admissibility of science in a court demands that three major conditions be met: validity,
reliability, and legality.’ The narco-analysis test analysis must benefit from the same. While
reliability necessitates consistency in test accuracy and success rate, validity requires a procedure
that has been scientifically established and a sufficient level of accuracy.

The leading case which guided precedent with respect to narco-analysis in our country is the
U.S. v. Solomon15, it was held “narco-analysis as unreliable, but they were accepted as a
technique for investigation was upheld. The court used expert witnesses to establish their point
that acceptable safeguarding is possible against the unreliability of narco-analysis”. The
compulsion was answered by the supreme court in the case of Dinesh Dalmia v. State 16where
they said “consent plays no role in the narco-analysis test and even though a person is put in
narco-analysis under compulsion, the disclosures made by him are done voluntarily”. While in
one of the case in stay order by supreme court being carried on K.Venkateshwar Rao involving
Krushi Cooperative Urban Bank, it was said that “consent means ‘informed consent’. A person
who is giving consent much have knowledge of the procedure which is to be carried on him”.
We were left with a murky picture regarding the significance of consent in carrying out such
tests as a result of these two contradictory rulings.

According to the drafting committee on ‘National Criminal Justice System Policy’ 17 it has been
recommended that “the government should take various steps to amend the parts of the Code of
criminal procedure for effective implementation of science and technology in the criminal justice
system. Section 53 of the Cr.P.C was amended to permit medical examination of an accused in
the interests of justice, ‘as maybe reasonably necessary’. Narco-analysis tests must also be
considered as reasonable tests under circumstances such as terrorist attacks and other grave
cases.”

The use of certain scientific techniques to aid criminal investigations has faced legal challenges
due to concerns about violating the right to silence enshrined in Article 20(3) of the Indian
15
753 F.2d.1522 (9th Cir. 1985).
16
2007 AIR SCW 3006
17
Ministry of Home Affairs, Government of India, National Criminal Justice System Policy,

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Constitution. This issue was addressed in the landmark case of Selvi v. State of Karnataka. The
Supreme Court rejected the lower court's approach that relied on factors like the usefulness,
reliability, and validity of techniques like narco-analysis (a truth serum test) for their
admissibility. The Court's reasoning focused on the inherent coercion involved in forcing
someone to undergo such tests, even if there's no physical harm. This compulsion, the Court
argued, could influence the answers given during the tests, rendering them involuntary and
unreliable. Consequently, the Supreme Court deemed the results of these tests inadmissible
because they violate Article 20(3), which protects individuals from self-incrimination.
Furthermore, the Court went on to declare these techniques as "cruel, inhuman and degrading
treatment."

The practice of narco-analysis is riddled with issues concerning its validity, reliability, and
legality. Despite the suggestive name "truth serum," the actual truthfulness of the information
extracted is highly debatable. Some individuals can resist revealing the truth even under its
influence, while others may be easily swayed by leading questions during questioning.
Additionally, the way investigators frame questions can manipulate the subject into providing
incriminating responses. The drugs used in narco-analysis don't guarantee truthful answers.
Statements made in this drug-induced state are involuntary and unconscious, rendering them
inadmissible as evidence in court. In many instances, subjects have been known to provide false
information even under the influence of these drugs, making them ineffective in identifying liars
or evasive individuals. Furthermore, determining the appropriate dosage for each subject proves
to be a significant challenge. The effectiveness of the drug varies depending on the subject's
willpower, mental state, and physical constitution. These factors complicate the process of
acquiring reliable information and cast further doubt on the validity of narco-analysis.

Instead of accusing the accused against himself, the criminal justice system's investigative
agencies and other components should use legitimate means to bring offenders to justice.
Protecting an accused person's rights against being pressured to confess is just as crucial. In the
best-case situation, the perception might provide justification for doing the tests in terms of
investigation, but it is completely illegitimate in terms of the law.

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 3. INTERPLAY OF RIGHT TO PRIVACY AND RIGHT AGAINST SELF
INCRIMINATION

The connection between the right to privacy and the right against self-incrimination (Article
20(3) in India) is a contentious issue. Legal scholars critical of this link point out that the right to
privacy in India is still developing and lacks a definitive meaning. This makes it vulnerable to
being downplayed in favor of other interests. Proponents of a unified view argue that the right to
remain silent during a criminal investigation stems from a personal decision. They believe no one
should be compelled to speak, especially when facing potential criminal charges. This
perspective highlights the interconnectedness of the right against self-incrimination with privacy
and individual autonomy. By emphasizing the privacy aspect, this interpretation could potentially
lead to a broader understanding and stronger protections under Article 20(3).18

The ultimate interest the right to privacy seeks to protect is the “inviolate personality” of the
individual, which has been defined as an “individual’s independence, dignity and
integrity….man’s essence as a unique and self-determining being”.

The right against self-incrimination isn't just about keeping information secret, it's about how
that information is obtained. This right exists because individuals have a right to privacy. A
common critique is that if privacy protects information, then allowing someone else to reveal it
undermines that protection. This argument overlooks the fact that the right against self-
incrimination safeguards a specific type of privacy: mental privacy. It prevents the government
from forcing someone to give up control of their own thoughts and reveal information they don't
want to share. This protects individuals from a difficult situation where they might be forced to
lie, refuse to cooperate (be held in contempt), or incriminate themselves (the "cruel trilemma").
Some argue that forcing someone to reveal information can be helpful for rehabilitation, a goal
of many criminal justice systems. However, the passage suggests this might not be the case. 19

The right against self-incrimination creates a buffer zone between individuals and the
government. This recognizes the government's potential to pressure people and go beyond its
authority. Being forced to reveal incriminating information can damage a person's reputation and

18
Bhatia, G. (2018). Privacy and the Criminal Process: Selvi v State of Karnataka.
19
Sarmah, A. (2017). Privacy and the right against self-incrimination: Theorising a criminal process in the context of
personal gadgets. CALQ (2017) Volume 3 Issue II, 28.

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lead to unfair portrayals. If this distance shrinks, it could create a scary situation where citizens
are constantly monitored and forced to act according to the government's wishes. The right
against self-incrimination protects an individual's ability to make their own choices, a core part
of privacy. A more balanced view acknowledges that people don't necessarily want to be
completely hidden from the government. Instead, they want their personal information handled
fairly. No one wants information they share to be used to take away their freedom or bring them
closer to government control. This passage suggests that the Constitution allows for a connection
between personal freedom (and by extension, privacy) and the right against self-incrimination.

4. SECTION 27: BALANCING ACT OR A LOOPHOLE?

The fundamental right against self-incrimination stands as a cornerstone of fair criminal justice,
safeguarding individuals from being compelled to incriminate themselves. This right finds its
foundation in Article 20(3) of the Indian Constitution, declaring that "No person accused of any

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offence shall be compelled to be a witness against himself." However, the seemingly clear-cut
protections offered by this right encounter a significant hurdle in the form of Section 27 of the
Indian Evidence Act, 1872. This chapter delves into the complexities surrounding Section 27,
analyzing its impact on the privilege against self-incrimination and the precarious balancing act
it necessitates between individual rights and the pursuit of a successful prosecution.

Sections 25 and 26 of the Indian Evidence Act establish the general rule: confessions made to
police officers or in police custody are deemed inadmissible as evidence in court. This legal
safeguard acknowledges the inherent vulnerability of individuals in police custody. The rationale
behind these provisions lies in the recognition that the coercive environment of a police station
can easily lead to confessions extracted through threats, pressure tactics, or even torture. By
rendering such confessions inadmissible, the law aims to ensure the integrity of the criminal
justice system, preventing wrongful convictions based on coerced statements.

Section 27 carves out a significant exception to the protections offered by Sections 25 and 26. It
allows the court to admit information received from an accused person in police custody, even if
it amounts to a confession, provided this information leads to the discovery of a fact. On the
surface, this provision appears to strike a balance between safeguarding individual rights and
facilitating effective investigation. The "discovery of fact" acts as a potential safeguard against
fabricated confessions, lending some credence to the information provided by the accused.

The theoretical justification for Section 27 rests on the "confirmation by subsequent discovery"
doctrine. This doctrine posits that if the information provided by an accused in police custody
leads to the discovery of a fact, such as the location of a murder weapon, it lends some credibility
to the truthfulness of the information itself. The subsequent discovery acts as a form of
independent verification, suggesting that the information was not fabricated but rather based on
some knowledge of the crime. However, translating this theory into practice proves to be a
complex and potentially problematic undertaking.

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Despite the seemingly logical justification of the "confirmation by subsequent discovery"
doctrine, Section 27 raises a multitude of concerns regarding its potential for misuse and the
erosion of the privilege against self-incrimination. Critics level several arguments against the
provision:
 Pressure and Torture: The Allure of "Clean" Confessions: The possibility exists that
police might resort to pressure tactics or even torture to extract information that would
lead to a "discovery." This undermines the very essence of Article 20(3) by rendering the
confession involuntary. The prospect of a seemingly "clean" confession that yields results
might create an incentive for police officers to engage in rights violations, undermining
the integrity of the investigation.
 Focus on Outcome over Process: A Recipe for Abuse: Section 27 places significant
emphasis on the "discovery of fact" as a legitimizing factor for admitting confessions
obtained in police custody. This focus can overshadow the process by which the
information was obtained. Even if a confession is extracted through coercion, it can still
be admitted as evidence if it leads to a discovery. This prioritizes the outcome of the
investigation over the legitimacy of the means employed, potentially allowing coerced
confessions to enter the court record. In essence, Section 27 creates a situation where the
ends justify the means, which can have dire consequences for individual rights.
 The Difficulty of Proving Coercion: An Uphill Battle for the Accused: The burden of
proving that a confession was obtained through coercion often falls on the accused, a
difficult task especially when dealing with mental pressure or threats. The absence of
visible signs of physical abuse can make establishing coercion challenging. This creates a
situation where rights violations go unchecked, as the accused faces an uphill battle in
proving they were compelled to confess.20

India grapples with a disturbingly high number of custodial deaths, highlighting the potential for
abuse under Section 27. The very real possibility of violence and even death in police custody
casts a shadow over the legitimacy of confessions obtained in such settings. Custodial deaths

20
Gautam, K. (2021). The Right Against Self-Incrimination Under Indian Constitution & the Admissibility of
Custodial Statements Under the Indian Evidence Act, 1872.

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serve as a stark reminder of the vulnerabilities faced by individuals in police custody and the
potential for Section 27 abuse.

The Indian judiciary has attempted to mitigate the concerns surrounding Section 27 and walk the
tightrope between effective investigation and individual rights. Landmark cases like D.K. Basu
v. State of West Bengal 21 have laid down a series of safeguards to prevent custodial violence.
These include mandatory judicial oversight of arrests, recording of confessions by magistrate,
and medical examination of detainees. More recently, Subramanya v. State of Karnataka 22
emphasized the presence of witnesses and videography during confession-taking as a means to
ensure transparency and accountability.
However, these judicial pronouncements have limitations. The implementation of these
guidelines remains uneven, and loopholes still exist. For instance, the requirement for recording
confessions often gets bypassed, and the presence of witnesses can be easily manipulated.
Furthermore, relying solely on judicial pronouncements creates a situation where legal
protections rest on the interpretation of individual cases rather than being firmly enshrined in
legislation.

The Law Commission of India has recognized the need for a more comprehensive approach to
address the issues surrounding Section 27. It has recommended a revisit of the section and the
enactment of specific anti-torture legislation. Such legislation would explicitly define torture and
outline clear investigative and prosecutorial procedures for cases involving custodial violence.
Additionally, the Law Commission has called for strengthening safeguards during confession-
taking, including mandatory audio-visual recording and the presence of independent legal
counsel for the accused.23

The ongoing debate surrounding Section 27 reflects the inherent tension between individual
rights and the need for effective investigation and prosecution. While the "confirmation by

21
AIR 1997 SC 610.
22
2022 SCC OnLine SC 1400.
23
Jaiswal, J. (2012). Right of an Accused to Be Protected against Self-Incrimination-Its Availability and Emerging
Judicial Dimensions under Criminal Law. Indian JL & Just.

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subsequent discovery" doctrine offers a theoretical justification for the provision, the potential
for misuse and the erosion of the privilege against self-incrimination remain significant concerns.
Moving forward, a multi-pronged approach is necessary. Strengthening legal safeguards through
legislative reform, coupled with stricter enforcement of existing judicial guidelines, is crucial.
Additionally, fostering a culture of police accountability and promoting human rights education
within law enforcement agencies are essential steps towards ensuring that Section 27 does not
become a tool for rights violations.

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 CONCLUSION

The fact that Selvi acknowledges the connection between the right to privacy, which is enshrined
in Article 21 of the Constitution, and the prohibition on self-incrimination is noteworthy in and
of itself. Nevertheless, at the expense of repetition, the Indian judiciary will need to handle
privacy in a far more dynamic way and make sure it gives up the reductionist approach it is
guilty of using far too frequently in order to achieve a comprehensive growth of this connection.
On the other hand, section 27 of the Indian Evidence Act presents a complex challenge in
balancing the right against self-incrimination with the interests of justice. While the
"confirmation by subsequent discovery" doctrine offers a theoretical justification, concerns
regarding potential misuse and the erosion of safeguards against custodial violence remain
significant. Continued judicial pronouncements, legislative reforms, and a commitment to
upholding human rights within law enforcement are all crucial elements in ensuring that the
tightrope walk between individual rights and effective investigation is navigated with fairness
and integrity. Only through such a multi-faceted approach can the privilege against self-
incrimination be truly safeguarded. The right against self-incrimination is not a mere legal
technicality; it is the embodiment of a fundamental principle - no individual should be forced to
be the architect of their own downfall. Striking a balance between this right and the need for
effective investigation necessitates a continuous dialogue. Only through unwavering
commitment to legislative reform, stricter enforcement, and a cultural shift within law
enforcement can we ensure that the pursuit of truth doesn't come at the cost of individual liberty.
The future of a just criminal justice system in India hinges on our ability to navigate this
precarious dance effectively.

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