15. Ibid., 10.
16. Ibid., 13.
17. Ibid., 16.
18. Ibid.
19. For an alternative approach, based on law’s need to balance factual accuracy and moral and expressive authority, see Ian Dennis, ‘Instrumental Protection, Human Right, or Functional Necessity? Reassessing the Privilege against Self-Incrimination’ (1995) 54(2) Cambridge Law Journal 342, 352.
20. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961); but see also Hudson v. Michigan, 547 U.S. 586 (2006).
21. R v. S.A.B. (2003) 2 S.C.R. 678; Chandra and Satish, ‘Criminal Law and the Constitution’, supra, 795. See also the proposals of the Criminal Law Revision Committee and the Royal Commission on Criminal Procedure, discussed in Dennis, ‘Instrumental Protection, Human Right, or Functional Necessity?’, supra, 347, fn. 22: ‘… a combination of reliability, disciplinary and protective principles’. There are, of course, other values as well, that may not always be reducible to these two: for example, the criminal law’s expressive function.
22. See, e.g., Amar and Lerner, who argue, though with qualifications, that ‘reliability’ is the central value underlying the guarantee against self-incrimination. Akhil Amar and Renee Lerner, ‘Fifth Amendment First Principles: The Self-Incrimination Clause’ (1995) 93 Michigan Law Review 857.
23. See, e.g., Ferreira v. Levin (1996) 1 BCLR 1, where the Constitutional Court of South Africa articulated a due process justification for a right against self-incrimination.
24. R v. S.A.B. (2003) 2 SCR 678, 703.
25. M.P. Sharma v. Satish Chandra, 1954 SCR 1077, ¶10.
26. Ibid., ¶17. As the Canadian Supreme Court put it, ‘the principle of self-incrimination imposes limits on the extent to which an accused person can be used as a source of information about himself’. R v. B, supra, 693. See also R v. Jones (1994) 2 S.C.R. 229.
27. Twenty-five years later, the Court narrowed this down still further in V.S. Kuttan Pillai v. Ramakrishnan (1980) 1 SCC 264.
28. But see, e.g., Redmayne, drawing a distinction between processes that do or do not ‘involve co-opting the suspect’. Mike Redmayne, ‘Rethinking the Privilege against Self-Incrimination’ (2007) 27(2) Oxford Journal of Legal Studies 209, 215. See also Fisher v. United States 425 U.S. 391 (1976).
29. Ibid.
30. Ibid., ¶4.
31. Ibid., ¶8.
32. This reasoning of M.P. Sharma was overruled in 2017 in K.S. Puttaswamy v. Union of India, supra.
33. There is, intuitively, an internal contradiction here: while there may be reliability concerns with compelled oral self-incriminating testimony, the same fears are unlikely to apply to documents, because at the time they were written (with the self-incriminatory content), there was no compulsion. See, e.g., Dennis, ‘Instrumental Protection, Human Right, or Functional Necessity?’, supra. For a contrary view, see Amar and Lerner, ‘Fifth Amendment First Principles’, supra, pointing out that, as a matter of fact, documents written in the form of confessionals often contain exaggeration and hyperbole and that, therefore, even a theory of self-incrimination founded on reliability may exclude self-incriminating documentary evidence.
34. See Abhinav Sekhri, ‘From “Bully Boys” to “Willing Servants”?’ Police, the Third Degree, and Indian Courts, 1861–1961’, SSRN (2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3174042.
35. State of Bombay v. Kathi Kalu Oghad (1962) 3 SCR 10.
36. S. 73, Evidence Act.
37. S. 27, ibid.
38. State of Bombay v. Kathi Kalu Oghad, supra, ¶11.
39. Id., ¶¶11–12.
40. Id., ¶31 (concurring opinion of Justice Das Gupta).
41. Incidentally, Kathi Kalu’s logic provides a stronger justification for including documentary evidence within the scope of the right against self-incrimination. Documents once written (and then seized) cannot be changed.
42. For a contemporary critique, see K.R. Dixit, ‘Protecting Against Self-incrimination’, (1962) 4(1) Journal of the Indian Law Institute 144.
43. Ibid., ¶10.
44. Ibid., ¶32 (concurring opinion of Justice Das Gupta).
45. Ibid., ¶10.
46. Ibid.
47. State of Gujarat v. Shyamlal Mohanlal Choksi (1965) 2 SCR 457, ¶16 (dissenting opinion of Justice Shah).
48. In fact, Justice Shah expressly noted: ‘but the hypothesis that our Legislature has accepted wholly or even partially the rule of protection against self-incrimination is based on no solid foundation’. Ibid., ¶5. The irony of calling the colonial legislature ‘our Legislature’ was apparently lost on him.
49. For an account of how the courts have privileged the crime control model across domains of criminal law, see Chandra and Satish, ‘Criminal Law and the Constitution’, supra, 798–812.
50. Schmerber v. California, 384 U.S. 757 (1966), noting that:
… There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain ‘physical evidence’, for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.
In his dissenting opinion, Justice Black criticized the normative foundations of the distinction itself, wondering what was it about a blood sample that lacked a ‘communicative nature’. Black went on to note, persuasively, ‘It is a strange hierarchy of values that allows the State to extract a human being’s blood to convict him of a crime because of the blood’s content, but proscribes compelled production of his lifeless papers.’ Schmerber v. California, supra, p. 775 (dissenting opinion of Justice Black). Nonetheless, the testimonial/physical evidence dichotomy was a staple part of US self-incrimination jurisprudence in the mid-twentieth century. See Amar and Lerner, ‘Fifth Amendment First Principles’, supra. It was also a feature of Canadian self-incrimination jurisprudence.
51. Horvath v. The Queen (1979) 2 S.C.R. 376, 377.
52. Ibid., 401.
53. Ibid., 425.
54. The Canadian Supreme Court borrowed this phrase from the US Supreme Court judgement in Townsend v. Sain, 372 US 293 (1963).
55. Ibid., 426. See also, Saunders v. The United Kingdom (1996) ECHR 65: ‘… in defiance of the will of the accused’.
56. The trademarked version of the anaesthetic sodium thiopental.
57. Selvi v. State of Karnataka (2010) 7 SCC 263, ¶8.
58. Ibid., ¶14.
59. Ibid., ¶72.
60. For a critique of this framing, see the observations of Judge Friendly, quoted in Amar and Lerner, ‘Fifth Amendment First Principles’, supra, 887: ‘[u]se of a suspect’s answers “merely to find other evidence establishing his connection with the crime … differs only by a shade from the permitted use for that purpose of his body or his blood”’.
61. S. 53, CrPC.
62. See, e.g., Ferreira v. Levin (1996) 1 BCLR 1: ‘The more that self-incrimination takes the form of oral communication, the more compelling will the protection be; the more objective or real the existence of the incriminating material, on the other hand, the more attenuated.’ (Concurring opinion of Justice Sachs, ¶259).
63. Ibid., ¶181.
64. Ibid., ¶184.
65. See, e.g., the observations of the Canadian Supreme Court in R v. S.A.B., supra, p. 694, noting how in previous judgements, ‘no distinction was drawn between products of the mind and products of the body with respect to the principle against self-incrimination’.
66. Ibid., ¶185.
67. A point noted by Justice Black in his dissenting opinion in Schmerber. See infra. See, however, Saunders v. UK, supra, ¶69: ‘[the right against self-incrimination] does not extend to the use in criminal proceedings of material which may be obtained from the accused th
rough the use of compulsory powers but which has an existence independent of the will of the suspect’.
68. Ibid., ¶¶224–26.
69. Horvath v. The Queen, supra, ¶433. In discussing the constitutionality of a DNA bank, the Court later framed the issue as ‘the rights of individuals to control the release of personal information about themselves’. R v. S.A.B., supra, p. 701.
70. Justice K.S. Puttaswamy (Retd.) v. Union of India, supra.
71. The Court’s framing in Selvi, and the distinction between physical and mental privacy, has been debated across jurisdictions, in judgements of constitutional courts, and in academic writing. It has been both defended and criticized. See, e.g., Mike Redmayne, ‘Rethinking the Privilege against Self-Incrimination’ (2007) 27(2) Oxford Journal of Legal Studies 209. Gerstein puts the point thus: ‘[G]overnmental authority is being used for the express purpose of shaping the conscience of the individual. Nothing could be more repugnant to the principle with which we are concerned.’ Robert S. Gerstein, ‘Privacy and Self-Incrimination’ (1970) 80(2) Ethics 87, 98–99. Galligan links the ‘zone of privacy’ to autonomy and identity. D.J. Galligan, ‘The Right to Silence Reconsidered’ (1988) 41(1) Current Legal Problems 69. In Saunders v. United Kingdom (1996) ECHR 65, a majority of the European Court of Human Rights drew a distinction between evidence dependent on the ‘will’ of the subject, and evidence independent of it—a distinction that was criticized as incoherent by Judge Martens in his dissenting judgement, who pointed out:
Why should a suspect be free from coercion to make incriminating statements but not free from coercion to cooperate to furnish incriminating data? The Court’s newly adopted rationale does not justify the distinction since in both cases the will of the suspect is not respected in that he is forced to bring about his own conviction … [and] what about a PIN code or a password into a cryptographic system which are hidden in the suspect’s memory? (Saunders v. UK, supra,¶12 dissenting opinion of Judge Martens).
Ian Dennis also points out that on the ‘will of the subject’ theory, there is no reason documents should fall within the privilege against self-incrimination, because, after coming into existence, their contents continue to exist independent of the will of the subject. Dennis, ‘Instrumental Protection, Human Right, or Functional Necessity?’, supra.
72. See also Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424.
73. R v. S (R.J.) (1995)] 1 S.C.R. 451, 605 (concurring opinion of Justice L’Heureux-Dubé).
74. Cf. Ahmed Mahomed Jackariah v. Ahmed Mahomed (1888) ILR 15 Cal 109.
75. Shyamlal Mohanlal, supra, ¶11 (dissenting opinion of Justice Shah).
76. Fifth Amendment, Constitution of the United States of America.
77. R.H. Helmholz, ‘Origins of the Privilege against Self-Incrimination: The Role of European Ius Commune’ (1990) 65 New York University Law Review 962.
78. John H. Langbein, ‘The Historical Origins of the Privilege Against Self-Incrimination at Common Law’ (1994) 92 Michigan Law Review 1047; Eben Moglen, ‘Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege against Self-Incrimination’ (1994) 92(5) Michigan Law Review 1086; Ferreira v. Levin, supra.
79. R v. S. (R.J.) (1995) 1 S.C.R. 451, ¶107.
80. In his draft notes on Fundamental Rights, B.N. Rau noted that it was borrowed from the Fifth Amendment to the US Constitution. B.N. Rau’s ‘Notes on the Draft Report’, Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 147, 149.
81. For example, in K.M. Munshi’s Draft Bill of Rights, the guarantee against self-incrimination is found under the heading Special Rights, and apart from the section dealing with the core freedoms. Shiva Rao, The Framing of India’s Constitution, Vol. II, supra, 69, 79. In the Fundamental Rights Sub-Committee’s first draft bill of rights, it came under the title Miscellaneous Rights. Draft Report of the Sub-Committee, 3 April 1947, ibid., 137, 141. The provisions were shifted by the Drafting Committee from the Miscellaneous Rights sub-section on 3 November 1947, although the reasons are not specified. Ibid., 334.
82. Interestingly, in the Draft Constitution that he compiled out of the work of the different sub-Committees, and placed before the Drafting Committee in October 1947, the Constitutional Adviser B.N. Rau added, before the self-incrimination clause, the following words: save as provided in Section 132 of the Indian Evidence Act, 1872 as in force at the commencement of this Constitution, [shall any person be compelled in any criminal case to be a witness against himself]. Recall that Section 132 of the Evidence Act denies extending the privilege against self-incrimination to witnesses on the stand. In his Notes, B.N. Rau observed that this was ‘new’ and the purpose was to ‘prevent a failure of justice’. However, this addition was dropped by the Drafting Committee, on the grounds that Article 20(3) clearly intended to apply to an accused and, therefore, the addition was unnecessary.
83. For a more detailed foray into colonial jurisprudence, and how the constitutional text marked a break with the past, see Abhinav Sekhri, ‘From “Bully Boys” to “Willing Servants”?’, supra.
84. Dennis, ‘Instrumental Protection, Human Right, or Functional Necessity?’, supra, 344.
85. Ibid.
86. For a proto-version of this argument, see K.S. Sharma, ‘Law and Order and Protection of the Rights of the Accused in United States and India: A General Framework for Comparison’ (1972) 21 Buffalo Law Review 361, 406.
87. Courts across jurisdictions have held this.
88. This standard, of course, is not free from difficulty. A pending case before the Supreme Court involves the questions of whether voice samples fall within the scope of the self-incrimination guarantee. From one perspective, speaking involves a mental act, and, therefore, the physical evidence has its root in mental processes, in the words of Selvi. On the other hand, what is being analysed is not the content of the speech, but its physiological characteristics, which are entirely ‘innocuous’ in themselves, like blood or fingerprints. See Gautam Bhatia, ‘The Gujarat High Court’s Voice Spectrography Judgment, and the Limits of Selvi v. State’, Indian Constitutional Law and Philosophy Blog, 15 February 2017, available at https://indconlawphil.wordpress.com/2017/02/15/the-gujarat-high-courts-voice-spectrography-judgment-and-the-limits-of-selvi-v.-state/.
89. Justice K.S. Puttaswamy v. Union of India, supra.
90. Selvi v. State of Karnataka, supra, ¶¶119, 246.
91. See, e.g., Abhinav Sekhri, ‘From “Bully Boys” to “Willing Servants”?’, supra.
92. M.P. Sharma v. Satish Chandra, supra, ¶10.
93. Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, AIR 1961 SC 29.
94. Abhinav Sekhri, ‘Confessions, Police Officers and Section 25 of the Indian Evidence Act, 1872’ (2014) 7 National University of Juridical Sciences Law Review 1.
95. Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440. See Abhinav Sekhri, ‘Detention, Deepak Mahajan, and Self-Incrimination’, The Proof of Guilt, 3 March 2016, available at https://theproofofguilt.blogspot.in/2016/03/aprevious-version-of-this-post-appeared.html. The Court’s gradual move in this direction was perceived as early as 1972. See K.S. Sharma, ‘Law and Order and Protection of the Rights of the Accused in United States and India’, supra.
96. Abhinav Sekhri, ‘The Right against Self-Incrimination: Re-Defining Minimums, The Proof of Guilt’, 13 March 2016, available at https://theproofofguilt.blogspot.in/2016/03/the-right-against-self-incrimination-re.html.
97. Chandra and Satish, ‘Criminal Law and the Constitution’, supra. For an early version of this argument, see K.K. Nigam, ‘Due Process of Law: A Comparative Study of Procedural Guarantees against Deprivation of Personal Liberty in the United States and India’, (1962) 4(1) Journal of the Indian Law Inst. 99.
Epilogue: ‘Something of Freedom Is Yet to Come’: The Aadhaar Case, Technological Self-Determination and the Future of Transformative Constitutionalism
1. Many of these days were truncated, however, so the Attorney-G
eneral’s assessment may not have been entirely accurate.
2. An informal record of all thirty-eight days of the oral arguments—‘live-tweeted’ from the courtroom—can be accessed here: https://docs.google.com/document/d/1H-zGU3yIt6fKLxfrAKXI2EsievolyaFA3PO3jDv8cQM/edit?usp=drivesdk. This record was prepared by myself, Prasanna S., and the Software Freedom Law Centre (SFLC). All of us represented the petitioners, and the record should, therefore, be filtered for bias.
3. See: https://uidai.gov.in/component/fsf/?view=faq&catid=31.
4. Justice K.S. Puttaswamy v. Union of India, 2018 SCC Online SC 1642.
5. For analysis, see Gautam Bhatia, “The Aadhaar Judgment: A Round-Up”, The Indian Constitutional Law and Philosophy Blog, 5 October 2018, available at https://indconlawphil.wordpress.com/2018/10/05/the-aadhaar-judgment-a-round-up/.
6. Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor 3, 5 (New York: St Martin’s Press 2017). For the first comprehensive account at the turn of the century (that is relevant today), see Simson Garfinkel, Database Nation: The Death of Privacy in the 21st Century (Sebastopol: O’Reilly 2000).
7. Reuben Binns, ‘Fairness in Machine Learning: Lessons from Political Philosophy’ (2018) 81 Journal of Machine Learning 1, 3.
8. See, e.g., Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Cambridge: Harvard University Press 2015). ‘Automation bias’ was visible, in particular, during the Aadhaar arguments, when the State repeatedly claimed that biometric authentication was the most accurate identification technology available.
9. Anand Murali, ‘The Big Eye: The tech is all ready for mass surveillance in India’, FactorDaily, 13 August 2018, available at https://factordaily.com/face-recognition-mass-surveillance-in-india/.
10. As Virginia Eubanks notes, in a slightly different context: ‘The integration of policing and homelessness blurs the boundary between the maintenance of economic security and the investigation of crime, between poverty and criminality, tightening a net of constraint that tracks and traps the unhoused. This net requires data-based infrastructure to surround and systems of moral classification to sift.’ Eubanks, Automating Inequality, supra, 180.
The Transformative Constitution Page 54