India is Ignoring the Jurisprudence of Arrest At Its Peril

Custodial interrogation – through which investigators seek to extract a self-incriminatory statement from an accused person – is illegal and amounts to capricious misuse of state authority.

Arrest, interrogate, oppose bail, and incarcerate – this is current state of criminal jurisprudence in India. Who is interested in clinical investigation and conviction? The Central Bureau of Investigation (CBI), whom the redoubtable former Chief Justice of India R.M. Lodha had once described as a “caged parrot”? Or,  the Enforcement Directorate (ED), whom the former central vigilance commissioner (CVC) N. Vittal had once called the most corrupt department in the country?

Consider a hypothetical situation. The CBI/ED arrests a person, but fails to coerce him to make any self-incriminatory statement. Before the magistrate, the CBI/ED argues that the accused is not cooperating. Custody gets extended. Custody gets further extended on the next date when the CBI/ED argues that “new facts have come to light”. And the bail versus jail match continues.

The pattern is common in most cases of arrest. Is India becoming a police state? Pre-trial custody is no substitute for punishment. What happens if long pre-trial jail ends with an acquittal? Can any accountability be fixed on the prosecution? And what about dispelling the perception that arrest and opposing bail is becoming a large-scale flourishing industry? This is the single most important reason behind the clogging of our criminal courts and jails.

Article 20 (3) of the constitution stipulates that “no person accused of any offence shall be compelled to be a witness against himself”.  In 1973, a constitution bench, made up of five judges of the Supreme Court (SC) in Ramanlal Bhogilal (R.B.) Shah versus D.K. Guha held that an accused had the right to silence if the answers tend to incriminate him. Mark the words “tend to incriminate”, which have wide amplitude. Who decides whether his answer would “tend” to incriminate him? The accused himself. So an accused enjoys full freedom not to answer the CBI/ED’s question, if in his opinion, his answer would incriminate him, or even “tend” to incriminate him.   

In the 1973 case, R.B. Shah, the general manager of a bank, was arrested by the ED. Although the first information report (FIR) did not name him, the SC held that he was a person accused of an offence which was the subject matter of investigation. Shah’s writ petition filed before the SC was allowed. The SC declared him to be a person accused of an offence within the ambit of Article 20 (3). In fact, the then learned additional solicitor general Fali S. Nariman had objected to the benefit of Article 20 (3) being extended to Shah since he was not named as an accused in the FIR. But the SC overruled this objection and held that Shah was an accused by virtue of his arrest and the grounds of arrest having been informed to him.

It may be noted that informing a person of the grounds of arrest is a constitutional requirement (Article 22 (1)). Therefore, in my view, every arrested person, on being informed  about the ground of his or her arrest becomes a person “accused of an offence” under Article 20 (3).

I am perhaps giving a new interpretation which may well generate a debate. But this interpretation is fortified directly by the R.B. Shah judgment and Article 22 (1). The jurisprudential concept is sound: let the ED prove its case by hard evidence rather than expecting an accused to prove the ED’s case by making self-incriminatory statements.

Consequently, custodial interrogation – seeking to extract a self-incriminatory statement from an accused person – is illegal and amounts to capricious misuse of state authority. This illegal short-cut seeks to make up for shoddy investigation. Unless the accused is an alleged terrorist, or the case pertains to preventive detention, or there is  danger of evidence tampering, custodial interrogation should be prohibited. And if the accused seeks protection under Article 20 (3) in custody, then there is little the CBI/ED can do. A person who is already in custody has nothing more to lose. The accused can answer questions of general knowledge or about other cases, but not on the subject matter of investigation in which he has been made an accused person. 

Four decades ago Justice V.R. Krishna Iyer, one of the greatest judges of the Supreme Court, had ruled: “Bail is the rule, and jail, the exception”. 

In February 2018, similarly, a Supreme Court bench comprising Justices Madan B. Lokur and Deepak Gupta expressed disappointment that judges appear to have lost sight of two cardinal principles: bail is the rule, and jail the exception; a person is innocent till found guilty. The court expressed anguish: “This does not do any good to our criminal jurisprudence or to our society”.

On December 10, 1948, 48 countries, including India, came together to sign the Universal Declaration of Human Rights. Article 3 stipulates that everyone has a right to life, liberty and security of a person. Article 5 stipulates that no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment. Article 9 stipulates that no one shall be subjected to arbitrary arrest and detention. Article 11(1) stipulates that anyone charged with a penal offence has the right to be presumed innocent until proved guilty. 

These concepts have found eloquent expression in India’s constitution. Even judicial pronouncements in India have emphatically upheld these rights. Yet, the state disregards these rights with impunity and gets away with it. The law declared by the Supreme Court is often not followed by the subordinate judiciary. Even the superior judiciary at times folds its hands and does not take cognisance of law declared by itself.

The situation is tragic and needs to be corrected by the judiciary itself.      

Bishwajit Bhattacharyya is a former additional solicitor general of India and a senior advocate in the Supreme Court.