M.P. Sharma v. Satish Chandra

Before you can ask whether a forensic technique violates the privilege against self-incrimination, you must know what the words to be a witness mean. If they mean only speaking in the witness box, the privilege is nearly empty; if they mean supplying anything that helps the prosecution, almost every investigative step is unconstitutional.

M.P. Sharma is where the Supreme Court fixes the meaning, and it is the foundation on which Selvi later builds the testimonial-versus-material distinction. It is the case to cite for the width of the protection and, in the same breath, for its limit.

The Court was called on to construe the expression to be a witness in Article 20(3), in the context of compelled production of material.

The Court gave the expression a wide interpretation, inclusive of oral, documentary and testimonial evidence, and held that the protection covers not only testimonial compulsion in the court room but also compelled testimony previously obtained from the person.

At the same time the Court distinguished to be a witness from furnishing evidence. The former means imparting knowledge in respect of relevant facts, by an oral statement or a statement in writing, made or given in court or otherwise. The latter includes the production of documents, or the giving of materials which might be relevant at a trial to determine the guilt or innocence of the accused.

Step one — the protection is about knowledge. To be a witness is to impart what one knows. That is why it covers a written statement as much as an oral one, and why it covers a compelled statement obtained before the trial as much as one compelled at it.

Step two — furnishing evidence is a wider and different act. Producing a document, or handing over material, supplies the prosecution with something; it does not necessarily convey what the person knows.

Step three — the consequence, which is the examinable proposition. Self-incrimination in the context of Article 20(3) means conveying information based upon the personal knowledge of the person giving it. Where an accused is compelled to produce a document in his possession which is not based on his personal knowledge, there is no violation of Article 20(3).

Step four — the acts that fall outside. Giving thumb impressions, specimen writings, or exposing the body for the purpose of identification are not covered by the expression to be a witness.

Use M.P. Sharma first in any Article 20(3) question, because it supplies the definition on which everything else operates, and then use the later cases for particular techniques.

The chain to learn is: M.P. Sharma defines to be a witness; Nandini Satpathy v. P.L. Dani extends the protection back to the investigation stage and to suspects; Mohd. Dastagir v. State of Madras shows what compulsion means; V.S. Kuttan Pillai v. Ramakrishnan shows that a search is not testimonial; and Selvi v. State of Karnataka applies the whole framework to scientific techniques, holding narco-analysis testimonial and DNA profiling not.

The case disposes of the argument that the privilege stops at the courtroom door, and equally of the argument that any compelled contribution to the prosecution case is protected.

It does not decide whether a particular search or seizure is lawful under other provisions, and it does not deal with the weight of the material produced.

A statutory link worth making. BSA s. 137 (IEA s. 132) provides that a witness is not excused from answering a relevant question on the ground that the answer will incriminate him, protecting him instead by barring the use of the compelled answer against him. That is a statutory analogue of the same idea, and an answer that sets the two side by side shows the examiner where the constitutional and statutory protections part company.