Date of Award
Doctor of Juridical Science (SJD)
This work argues that the constitutional validity of section 27 of the Indian Evidence Act, 1872 is highly suspect on the ground that it violates the right against self-incrimination protected by article 20(3) of the Indian Constitution. Section 27 codifies the doctrine of confirmation by subsequent recovery, an old British rule of admission according to which self-incriminatory custodial statements and/or confessions obtained by the police or the investigation agency are admissible into evidence on the ground that contents of such statement have been confirmed by recovery of incriminating physical evidence. Chapter I locates the Indian criminal justice system within the tradition of Due Process Model as distinguished with Crime Control Model by Prof. Herbert Packer. Chapter II locates section 27 within the Indian criminal justice system and examines the legal and constitutional issues that arise out of the doctrine of confirmation by subsequent recovery. It finds that there is a direct correlation, bordering on partial causation, between custodial torture and other such police misconduct and section 27 of the Evidence Act. Chapter III studies the jurisprudence of section 27 as evolved by the Privy Council (the highest court of criminal appeal in British India) and later by the Supreme Court of India (the highest court of criminal appeal in Republic of India) and classifies this jurisprudence into four distinct schools of thought, viz., (i) the Classical Position, (ii) the Narrow Textual Position, (iii) the Wider Textual Position, and (iv) the Technical Position. This classification is an original contribution and offered on doctrinal support. It is found that these four schools of thought are incoherent, contradictory, and insufficient, and that there is an urgent need for this entire legal position to be either legislatively, or judicial re-examined. Chapters IV and V study the right against self-incrimination which is protected as a fundamental right under article 20(3) of the Indian Constitution and can be enforced by any ‘person’ (as distinguished from ‘citizen’) by either directly approaching the Supreme Court of India under article 32, or any jurisdictional state High Court under article 226 of the Constitution. Chapter IV offers a ‘historical analysis’ of this right and Chapter V offers a ‘textual analysis.’ Since the right against self-incrimination, as protected by article 20(3) constitutionally prohibits ‘compulsion,’ Chapter V makes an original contribution by offering a classification thereof, viz., (i) Judicial Compulsion, (ii) Extra-Judicial Compulsion, and (iii) Non-Judicial Compulsion. In addition, the textual analysis also delves into the ‘right’ that is protected by article 20(3), the beneficiary of that right, and the corresponding duty that emerges. Based on the historical and textual analysis of article 20(3), and the doctrine developed therefrom, this work argues that unlike the US Constitution Fifth Amendment doctrine that tolerates Extra-Judicial Compulsion (see Miranda v. Arizona, 384 U.S. 436) the Indian Constitution prohibits all three forms of ‘compulsion’ but tolerates Judicial Compulsion (see section 164 of the Code of Criminal Procedure, 1973). Section 27 is therefore unconstitutional because it allows Extra-Judical Compulsion to be practiced in India whereas it is, inter alia, prohibited under article 20(3). Chapter VI offers a summary of analysis and conclusions.
Gautam, Khagesh, "The Right Against Self-Incrimination Under Indian Constitution & the Admissibility of Custodial Statements Under the Indian Evidence Act, 1872" (2021). Maurer Theses and Dissertations. 91.
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