This is the first part of a two-part post by Benjamin Vanlalvena, a final year law student at NALSAR University of Law. In this post, he critiques a recent judgement by the Supreme Court which allowed Magistrates to direct an accused to give voice samples during investigation, without his consent. Part II can be found here.
Nearly threescore ago, in Kathi Kalu Oghad, the eleven judge-bench of the Supreme Court of India decided on the question of the extent of constitutional protections against self-incrimination (vide Article 20(3)). The Supreme Court therein deviated from the notion of self-incrimination being one inclusive of “every positive volitional act which furnishes evidence” laid down in M.P. Sharma, and recognised a distinction between “to be a witness” and “to furnish evidence”. The present judgment arose on a difference in opinion in the division bench of the Supreme Court in Ritesh Sinha, regarding the permissibility of ordering an accused to provide their voice sample. In this part, I will talk about voice sampling and its interactions with privacy, and look at how different jurisdictions have looked at voice spectography – whether the same would be violative of the individual’s right to privacy and their right against self-incrimination. Finally, I will make a short point on technological developments and their interaction with criminal law. In the next part I will be dealing with the Court’s failure to simply rely upon Selvi to expand the definition, and instead how it created the doctrine of “imminent necessity” (a principle generally present in criminal law for private defence!) to justify the Court’s intervention into the halls of the Legislature in light of “contemporaneous realities/existing realities on the ground”.
The Investigating Authority seized the mobile phone from Dhoom Singh, allegedly in association with the accused-appellant Ritesh Sinha, and wanted to verify whether the recorded conversation was between both the individuals and thus needed the voice sample of the appellant to verify the same. Accordingly, summons was issued, and the present appellant was ordered to give his voice sample. This was subsequently challenged before the Delhi High Court who negatived his challenge. Aggrieved by the same, an appeal was filed before the Supreme Court, as a result of split verdict, the same was referred to a larger bench. The opinions by Justice Desai and Justice Aslam in the division bench have been sufficiently explored earlier by Gautam Bhatia and Abhinav Sekhri. Therein, both Justices were of one mind on voice sampling not being violative of the right against self-incrimination, with differences on the permissibility of voice sampling, considering an absence of an explicit provision permitting the same.
Voice Sampling and Privacy
In this reference judgment, Chief Justice Ranjan Gogoi traces the history of rights against self-incrimination by referencing (then) Chief Justice B.P. Sinha’s observations that documents which by themselves do not incriminate but are “only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable” and would not be violative of Article 20(3).
Recognising the limitation under section 53 and section 53A of the Code of Criminal Procedure, 1973, reference is made to the 87th Law Commission Report which suggested that an amendment to the Identification of Prisoners Act, 1920 to specifically empower a Judicial Magistrate to compel an accused person to give a voice print. No such action has been taken in that regard.
In Selvi, ‘personal liberty’ in the context of self-incrimination, was understood as being one whereby involuntariness is avoided, summing up this right to three points: (1) preventing custodial violence, and other third-degree methods to protect the dignity and bodily integrity of the person being examined, to serve as “a check on police behaviour during the course of investigation”. (2) To put the onus of proof on the prosecution, and (3) to ensure reliability of evidence, that involuntary statements could result in misleading “the judge and the prosecutor… resulting in a miscarriage of justice …[with] false statements …likely to cause delays and obstructions in the investigation efforts”. The third point is consistent with the majority view in Kathi Kalu Oghad, which found “specimen handwriting or signature or finger impressions by themselves…[to not be testimony since they are] wholly innocuous because they are unchangeable…[that they] are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable.” While there was a hesitation to read everything under the sun as “such other tests” in Selvi, it was recognised that that through an invocation of ejusdem generis, the same could be extended to other physical examinations, but not other examinations which involve testimonial acts. In this regard, we may consider Gautam Bhatia’s analysis of Selvi which digs deep into this issue. As an aside, beyond the question of the content of either the “said” or the “statement” itself, it would be of assistance to also look at the nature of police systems, whereby even in a post-Miranda setting in the US, the reality and nature of voluntariness is suspect.
The position of viewing exemplars by themselves to not be statements is consistent with various courts. That is, handwriting, signature, etc., existing within, or from the individual, the individual is not considered to have been made to give that which cannot otherwise be seen since the evidence is not altered irrespective of compulsion to give the same.
In Levack, the Supreme Court of Appeal in South Africa held that sound (and consequently voice exemplars), firstly, could be considered as a ‘distinguishing feature’ under Section 37(1)(c) of the Criminal Procedure Act of 1977. Secondly, that voice exemplars being ‘autoptic evidence’, derived from the accused’s own bodily features could be distinguished as not being testimonial or communicative in nature.
This echoes the view taken by the Supreme Court of the United States (SCOTUS) in the case of Dionisio, recognizing that voice samples (exemplars), for the purposes of identification, as not being violative of the individual’s rights against self-incrimination enshrined under the Fourth and Fifth Amendments. Since they are were mere physical characteristics, being attained as mere identifiers and not for their testimonial or communicative content (See also Gilbert and Wade). Further, relying on Katz, where it held that Fourth Amendment protections would not be offered “for what ‘a person knowingly exposes to the public…’”. Therefore, “[n]o person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.”.
In Jalloh vs. Germany, the Strasbourg Court observed that the right against self-incrimination guaranteed under Article 6(1) would not extend to material obtained through the use of compulsory powers from the accused person which have an “existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissue for the purpose of DNA testing”. (emphasis mine).
The Pacing Problem
The failure of legal systems to consider technological changes which may assist in collection of evidence or other crime control uses is termed as a ‘pacing problem’, and is comprised of two dimensions – Firstly, the basis of existing legal frameworks on a static rather than dynamic view of society and technology. Secondly, the slowing down of legal institutions with respect to their capacity to adjust to changing technologies.
The Legislature’s failure to provide for handwriting samples for two decades even after the Supreme Court and Law Commission’s mention of the same has been noted by Abhinav Sekhri. Admittedly, the benefits of voice sampling for identification are evident, and have even been used before. However, this judgment fails to clarify under which section such power has been conferred. If the same were to exist under the Identification of Prisoners Act, there may be some semblance of relief through section 7, which mandates destruction or handing over of such measurements and photographs to individuals in certain cases.
The DNA Bill, as introduced in the Lok Sabha allows for removal of DNA collected on certain conditions (vide Section 31(2)-(3), however, even then, it is one that occurs only on police report, order of the court or a written request (method varying on the basis of the incident), contrary to other jurisdictions or even section 7 of the Identification of Prisoners Act, the status quo is thus of retainment, and not automatic removal.
In trying to keep up with technological advancements, the Court has thus failed to recognise the importance of procedure in criminal matters and instead produced procedural uncertainty; it is even more curious to note that Selvi which would have been sufficient justification was not invoked even once in this case.