Nandini Satpathy v. P.L. Dani

The privilege against self-incrimination is the point at which the witnesses module meets constitutional law, and the two do not say the same thing. The evidence statute tells a witness that he is not excused from answering a relevant question on the ground that the answer will incriminate him, and protects him instead by forbidding the compelled answer to be used against him. Article 20(3) protects a person accused of an offence from being compelled to be a witness against himself.

The question Nandini Satpathy answers is how far up the process that constitutional protection reaches. If it began only at trial, the protection would arrive long after the damage.

The appellant, a former Chief Minister of Orissa, was directed to appear at a Vigilance Police Station to be examined in connection with a case registered against her under the Prevention of Corruption Act 1947 and under sections of the Indian Penal Code 1860 dealing with public servants, criminal conspiracy and abetment. An investigation was started and she was interrogated with a long list of questions given to her in writing. She refused to answer and claimed the protection of Article 20(3).

The Supreme Court ruled that the objective of Article 20(3) is to protect the accused from unnecessary police harassment, and that it therefore extends to the stage of police investigation and is not confined to the trial.

Two extensions follow. The right to silence is not limited to the case in which the person is being examined; it extends to other offences pending against him which the answers might incriminate him in. And the protection may be claimed by a suspect as well as by a person formally arraigned.

Step one — when the protection begins. Article 20(3) operates once a formal accusation relating to the commission of an offence has been levelled against a person, which may result in prosecution. In India a formal accusation is brought by the lodging of a first information report or a formal complaint to a competent authority. It is on the making of such an accusation that the clause opens its protective umbrella.

Step two — the corollary, which is commonly misstated. A person cannot claim the protection if at the time he made the statement he was not an accused but became one afterwards. Departmental inquiries into allegations against a government servant are outside the clause, since there is no accusation of an offence within its meaning.

Step three — purpose fixes reach. Because the purpose is protection from police harassment, the protection must attach where that harassment occurs, which is the interrogation room. Confining it to the courtroom would leave the mischief untouched.

Step four — the width of to be a witness. This is where the case joins M.P. Sharma v. Satish Chandra, in which the Court gave the expression a wide interpretation covering 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.

This is the case for the proposition that the right to silence covers the investigation stage, and it is the case to cite in any question on the privilege of a witness, the examination of an accused, or the limits on police interrogation.

Structure the answer in two columns. On the statutory side, BSA s. 137 (IEA s. 132) compels a witness to answer but bars the answer from being used against him, and BSA ss. 132 to 136 (IEA ss. 126 to 131) deal with professional and other privileges. On the constitutional side, Article 20(3) prevents compulsion of the accused. Nandini Satpathy tells you where the second begins.

It does not entitle a person to refuse to appear when summoned, and it does not cover a witness in a proceeding that is not criminal in character. Nor does it decide what counts as compulsion, which is dealt with in Mohd. Dastagir v. State of Madras, or which scientific techniques are testimonial, which is dealt with in Selvi v. State of Karnataka.

Two statutes have changed since. The police power to examine persons during investigation, formerly in the Code of Criminal Procedure 1973, is now contained in the corresponding provisions of the Bharatiya Nagarik Suraksha Sanhita 2023; and the evidence provision formerly numbered s. 132 is BSA s. 137. Name the current statute alongside the old one.