Satya Prakash
Can a person be compelled to give his/her voice sample to an investigating agency against his/her free will and consent?
The Supreme Court has answered the question in the affirmative by authorising judicial magistrates to pass such an order.
In doing so, a three-judge Bench headed by CJI Ranjan Gogoi on Friday used its powers under Article 142 of the Constitution that empowers it to pass such order as is necessary for doing complete justice in any case or matter pending before it.
The verdict is bound to attract criticism, particularly because the SC has assumed the role of the Legislature and judicially amended a provision of the Criminal Procedure Code (CrPC).
Second, it sets a bad precedent as it potentially goes against Article 20(3) of the Constitution - a fundamental right against self-incrimination. It says, "No person accused of any offence shall be compelled to be a witness against himself."
Terming it as "interesting and debatable", the top court admitted that the question as to whether a judicial order compelling a person to give a sample of his voice violated Article 20(3) of the Constitution was not argued before it.
Moreover, it has used its plenary powers under Article 142 to judicially amend the CrPC to empower the Executive arm of the state (investigating agencies), potentially restricting fundamental right against self-incrimination.
There were two questions for consideration before the Bench. First, whether Article 20(3) extends to protecting an accused from being compelled to give his voice sample during investigation?
And second, assuming that there is no violation of Article 20(3); can a magistrate authorise the investigating agency to record the voice sample of an accused in the absence of any provision in the CrPC?
The matter was referred to a three-judge Bench due to a difference of opinion in a verdict delivered by a Bench of Justice Ranjana Prakash Desai and Justice Aftab Alam in December 2012. Answering the first question in the negative, the two judges differed on the second one.
Justice Desai said voice sample can be included in the phrase "such other tests" appearing in Explanation (a) to Section 53 of the CrPC and the magistrate would have an implied power under this provision to permit taking of voice sample. But Justice Alam said it could be done only on the basis of a law passed by the Legislature.
However, the CJI-led three-judge Bench said the fundamental right to privacy cannot be taken as an absolute right.
Fundamental rights are essentially rights against the State and there is duty cast on constitutional courts to protect these against any violation by the Legislature and the Executive.
One can understand the use of Article 142 to expand citizens' fundamental rights - as was done in Vishakha guidelines (1997). But using it to favour the Executive when the Legislature has chosen not to authorise the probe agencies do take voice samples against one’s consent is fraught with serious consequences for civil liberties.
The verdict disturbs the constitutional scheme as it effectively takes away citizens' right to constitutional remedy under Article 32 in case of violation of fundamental rights. Had Parliament authorised probe agencies to take voice samples of an accused against their consent, one would have challenged it before a high court or the Supreme Court. But one has been left remediless as it has come from the Supreme Court.
Right against self-incrimination is not unique to India. Similar protection is available to American citizens under the Fifth Amendment of their Constitution. In the famous case of Miranda versus Arizona (1966), the US Supreme Court upheld the right to remain silent.
The verdict needs to be reconsidered by a Constitution Bench as it contradicts the top court's another three-judge verdict in Selvi versus State of Karnataka (2010) in which it ruled that no individual should be forcibly subjected to involuntary narco-analysis, polygraph examination and brain electrical activation profile test.
Bad precedent, goes against Article 20(3)
- SC judicially amends CrPC to empower judicial magistrates to compel an accused to give his/her voice sample to probe agencies against his consent
- The verdict sets a bad precedent as it potentially goes against Article 20(3) of the Constitution that guarantees fundamental right against self-incrimination
- The SC gives the ruling despite admitting that the issue of violation of Article 20(3) was not argued before it
- It effectively takes away citizens’ right to constitutional remedy under Article 32 in case of violation of their fundamental rights as the amendment has come from the SC
- The issue needs to be referred to a Constitution Bench as the verdict contradicts another three-judge Bench ruling in Selvi versus State of Karnataka (2010)
from The Tribune https://ift.tt/2yBWPWX
via Today’s News Headlines
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