Forget the uniform, focus on power

An integral and foundational feature of the law in India is that no one accused of an offence can be compelled to be a witness against oneself — it is enshrined in the Constitution, in a portion that is held to be a basic foundational feature that cannot be altered. Yet, repeated attempts to push the envelope have been made over the decades. In a clear, emphatic and reasoned ruling, the Supreme Court in a majority judgment, has struck down the ability to use as evidence, confessions extracted by officers under the narcotics law.

Typically, the assault on the constitutional principle against self-incrimination is found in the laws that deal with subjects provocative enough for society to find the disruption acceptable. Laws combating drug abuse and terrorism are easy vehicles to carry provisions that tread thin on the constitutional protection against self-incrimination.  

The constitutional principle against self-incrimination is a vital and crucial element for society. If the law were to enable and permit self-incrimination, the executive would have an easy task claiming to have solved crime and tracked down offenders. The real offenders could be at large but a poor soul tortured effectively enough would confess to a crime and the file would be closed. Crime would continue unabated, the real criminals would merrily commit more crime, but every case of crime would stand solved by the existence of a confession. The human mind’s capacity to even develop a false memory to make a confession is a matter of proven scientific studies.

The law of evidence in India explicitly renders irrelevant, confessions apparently caused by inducement, threat or promise. Likewise, a confession made to a police officer cannot be evidence for conviction for an offence. A confession made when in the custody of a police officer would also not be admissible unless made in the immediate presence of a magistrate. The principle is to disable a confession before an executive and balance it with the check of a judicial presence.

The term “police officer” is not defined in the evidence law — intelligently so, since it would lead to gaming of facts to ensure the definition doesn’t fit. Yet, this is precisely what transpired in the history of the Republic in gaming this principle. Multiple legislation confer powers on officials appointed under those laws giving them power to conduct search and seizures, power to arrest, and the like. Yet, without them wearing the label of “police officer”, confessions made to them have been treated as admissible evidence, and characterised as not falling foul of the evidence law.

Special legislation may suspend and substitute the general law governing criminal procedure. Within the same law, the criminal procedure law may be suspended in some respects and made applicable in other respects. So was the case with the law on narcotics, with an intention to make the law more stringent and provide for severe penalties, including the death penalty for some offences. To argue that a confession extracted under such law can be admissible evidence to convict the accused, was a proposition with far-reaching consequences.

Pointing to earlier judgments requiring the term “police officer” to be read in a “wide and popular sense”, the Supreme Court has distilled the law clearly — where limited powers of investigation are given to some officers primarily for purposes other than the detection and prevention of crime, such persons cannot be said to be police officers.  However, a police officer is not necessarily an officer attached to a police station. And whatever be the name given to the officials in question, the test would be to see if the investigative powers vested in them put them in a position to extract confessions and achieve their objective with an involuntary statement. This being the test, the law is clearly and explicitly declared by the Supreme Court about the capacity to extort a “confession” being the real test to determine if the constitutional protection and the protection under the evidence law would become unavailable.

The ruling has implications for the evolution of the law governing business. Multiple legislation regulating the conduct of business have provisions similar to the narcotics law. A confession to an investigative officer who can extract such a statement by his powers, if made admissible for a conviction on the ground that the officer is not a “police officer”, would have far-reaching consequences. In fact, under the erstwhile dreaded Foreign Exchange Regulation Act, that was repealed in 2000, income-tax officials would be in attendance during the custodial interrogation by the Enforcement Directorate to record confessions. Under the United Progressive Alliance-II, the Sebi Act was unsuccessfully sought to be amended with power to raid without a warrant from a magistrate. The ruling is sobering and a resounding reminder of a basic feature of our Constitution. 

The writer  is an advocate and independent counsel