Manish Sisodia Delhi excise policy case: how the right against self-incrimination works

Sisodia being taken away from the court. (Express photo by Praveen Khanna)

What is an individual’s right against self-incrimination?

The right against self-incrimination has its origins in Roman law, and evolved as a distinct right in the English jurisprudence. The Fifth Amendment in the United States Constitution says “No person shall be…compelled in any criminal case to be a witness against himself…without due process of law…”, a right that is colloquially referred to as “taking/ pleading the Fifth”.

Article 20(3) in Part III (Fundamental Rights) of the Indian Constitution says, “No person accused of any offence shall be compelled to be a witness against himself.”

The right to be presumed innocent until proven guilty, and the right to remain silent in an interrogation essentially flow from this constitutionally guaranteed right against self-incrimination. This right also ensures that police cannot coerce anyone to confess to a crime, and obtain a conviction based on that confession.

How does the right against self-incrimination apply in criminal cases?

Since the onus of proving the case against the accused beyond reasonable doubt is on the state, a person cannot be compelled to testify against himself or share information that might go against him in a trial.

In the landmark 1961 verdict in The State of Bombay versus Kathi Kalu Oghad, an eleven-judge Bench of the Supreme Court ruled that obtaining photographs, fingerprints, signatures, and thumb impressions would not violate the right against self-incrimination of an accused. The court distinguished “to be a witness” from “furnishing evidence”.

In 2019, the Supreme Court in its ruling in Ritesh Sinha versus State of Uttar Pradesh broadened the parameters of handwriting samples to include voice samples, adding that this would not violate the right against self-incrimination.

Earlier in 2010, in Selvi v State of Karnataka, the Supreme Court held that a narcoanalysis test without the consent of the accused would amount to violation of the right against self-incrimination.

However, obtaining a DNA sample from the accused is permitted. If an accused refuses to give a sample, the court can draw adverse inferences against him under Section 114 of the Evidence Act.

What happened in Manish Sisodia’s case?

The CBI told the special court that it would need custody of the accused since he was evasive during the interrogation.

Senior advocate Dayan Krishnan, who appeared for Sisodia, said that cannot be a ground for seeking remand: “Their case is I (Sisodia) did not answer in the way they wanted me to answer. I will show why that is not a ground for remand.” He argued that if the court granted remand for self-incrimination, “then that would be a travesty”.

What was the reasoning of the court?

In his order granting remand, judge Nagpal sought to differentiate between “giving legitimate answers” and protecting the right against self-incrimination. The judge did not elaborate on what would be counted as “legitimate” answers.

“It is true that he cannot be expected to make self-incriminating statements, but the interests of justice and of a fair investigation require that he should come up with some legitimate answers to the questions which are being put to him by the IO,” the order stated.

“Some of his subordinates are found to have disclosed certain facts which can be taken as incriminating against him and some documentary evidence against him has also already surfaced and a proper and fair investigation requires that some genuine and legitimate answers to the questions being put to him about the same are to be found and hence, in considered opinion of this court, this can only be done during custodial interrogation of the accused…,” the court said.

On what grounds did the SC reject Sisodia’s plea on Tuesday?

The SC refused to intervene in Sisodia’s arrest “at this stage”. He had moved the SC under Article 32, which gives citizens the right to approach the top court when their fundamental rights are violated.

A Bench headed by Chief Justice of India D Y Chandrachud asked Sisodia to “avail alternate remedies” under Section 482 CrPC, under which no provision in the CrPC can “limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”.

Senior advocate Abhishek Manu Singhvi argued that the SC had in other cases, including those of journalists Arnab Goswami and Vinod Dua, entertained petitions directly under Article 32. However, the CJI said that those cases involved free speech issues, while Sisodia’s is under the Prevention of Corruption Act.