March 28, 2019
April 20, 2019


Judges in majority: BP Sinha (CJI), JR Mudholkar, K Subba Rao, KN Wanchoo, N Rajagopala Ayyangar, PB Gajendragadkar, Raghubar Dayal, Syed Jaffer Imam. (8)
Judges in minority: KC Das Gupta, SK Das, AK Sarkar. (3)
Total Judges: 11
The present case was a culmination of three appeals being heard together, insofar as they involved substantial questions of law as to the interpretation of the Constitution, with particular reference to clause (3) of Article 20. Further, the size of this particular bench was constituted to be 11 so as to be able to expound the position of law as laid down in the case of MP Sharma v. Satish Chandra[1] with more particularity.
First Case
The respondent was charged under Section 301 r/w Section 34 IPC. At the trial stage, besides other evidence, the prosecution adduced in evidence a handwriting sample purported to having been given by the respondent. The police had obtained from the respondent three specimen handwriting samples to be compared with the main exhibit. The question of admissibility of such writing samples was raised in the High Court pursuant to the protection provided under Article 20(3). The plea of the accused that he was forced by the Deputy Superintendent of Police to give those writings had not been accepted either by the Trial Judge or the High Court. They on the other hand excluded the writings from the evidence on the ground that the element of compulsion was implicit in the respondent being in police custody. The State of Bombay had appealed against the same.
Second Case
A shop in Hissar was burgled and in the course of the same, 4 guns were stolen. The respondent told the police that he had buried one of the four guns in a particular location. As a consequence of this information, the police was able to trace the said gun and thus wanted to adduce the same in evidence under Section 27 of the Evidence Act. Further the police also got the hand and finger impressions of the accused to compare with the ones they received from the crime scene. The constitutionality of both Section 27 of the Evidence Act and the taking of fingerprints by the police has been challenged.
Third Case
The case relating to trafficking in contraband opium involved a search of the respondent’s residence. The police found certain railways receipts with endorsements on their backs for certain consignments of opium, which they thought, were in the handwriting of the accused. Hence his hand writing samples were taken under Section 73 of the Evidence Act. The High Court however disregarded such evidence as being in contravention to the protection granted under Article 20(3) of the Constitution. The State of West Bengal has come under the revisional jurisdiction of the Supreme Court.
Issues before the Court:
These are the issues for deliberation:
  • Whether methods of gathering evidence such as taking fingerprint samples, handwriting samples, DNA collection etc are constitutionally valid methods.
  • To solve the above question it is important to analyze the term “witness” in Article 20(3) and find out the ambit of its inclusion.
  • Whether being in police custody ipso facto means that the witness had been compelled or not.
Analysis by the Court and tools of interpretation employed
The judges in the above case were unanimous in the conclusion that was finally drawn. However they differed in their reasoning used to reach the same conclusion. Hence I have provided the analysis of the court both by the majority and the minority.
  1. Majority:
The majority analysed the arguments being raised in three different lines. They classified one extreme to be the arguments, which restrict the applicability of the protection, proffered by Article 20(3) only to statements being made by the witnesses in the courts and excluded the protection from extending to the investigation stage. Hence ‘compelled to be a witness’ meant ‘compelled to give oral testimony’ thus excluding compulsory production of documents.
The other extreme included the protection being proffered at all stages and includes any non-voluntary positive act on the part of the accused. According to this argument, if an accused person makes any statement or any discovery, there is not only a rebuttable presumption that he had been compelled to do so, but that it should be taken as a conclusive proof of that inferential fact.
The intermediate argument which the majority also adopts is that of the Union wherein they analyse the elements of the protection under Article 20(3) and put forth the argument that the compulsion envisaged in Article 20(3) is equivalent to ‘third degree’ methods to extort confessional statements.
The court then analysed what it means to “be a witness”. The court expands the definition to beyond what the English language mandates and includes within it not merely oral evidence but also production of documents, making intelligible getures etc as to “be a witness” is nothing more than to furnish evidence. Thus it cant merely be restricted to court room. All of the above arguments were also made in the case of MP Sharma v. Satish Chandra where the previous bench had given too wide an opening for the protection according to the present bench.
The court opined that: “”To be a witness” may be equivalent to “furnishing evidence” in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification.” This was said in the backdrop of the belief that the constitution drafters could not have intended to put obstacles in the way of efficient and effective investigation into crime and bringing criminals to justice. The constitution drafters were aware that provisions in law like Sections 27 and 73 of the Evidence Act exist and chose not to repeal them. This gives rise to the majority’s belief that a balance needs to be struck between strict literal interpretation of the expressions in Article 20(3) and the law enforcement mechanism. They believed that there was merit to the English law as it stood at that time and hence the constitution drafters did not repeal them.
Thus to give teeth to the law enforcement agencies, they have opined that instances of “mere questioning” of an accused by police resulting in a voluntary statement or production of documents which may ultimately turn out to be incriminatory would not be categorized as compulsion and hence shall not be held to violate the protection of Article 20(3).
Therefore, the rules of interpretation used by the majority tended to be a move away from the literal rule. The majority did not rely upon the mere meaning derived from the literal interpretation of the words “furnishing evidence”. They constructed the same to mean only those pieces of evidence, which were presented in court and everything else/ all other forms of expressions were held to be outside the ambit of any protection, which was to be offered by Article 20(3). In doing so, they have purportedly applied the golden rule of interpretation and gone beyond just the literal meaning of the words in the text of Article 20(3).
  1. Minority:
The minority in this case has agreed with the conclusion of the majority thus affirming the inclusion of the taking of fingerprints etc as legitimate methods of evidence taking. However, they have arrived at this conclusion using a different legal reasoning and they do not agree with the reasoning of the majority, sometimes even being at odds with it.
They analyse the protection given under Article 20(3) more closely and aim to understand the aim behind having been provided with this protection. Article 20(3) aims to avoid a person from having to be a witness against himself so as not to incriminate himself.  Thus the question that the judges in the minority aimed to answer was whether compelling an accused to produce documents etc amounts to “being a witness against himself” in such a manner that it is incriminatory in nature.
They view “to be a witness” with a very broad view and include most of the stages of the trial within it. They state: “while on the one hand we should bear in mind that the Constitution-makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, should not deter us from giving the words their proper meaning”. Thus the minority believes that limiting the scope of the words “to be a witness” would result in allowing compulsion to be used in procuring the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so than any oral statement of a witness might be.
However, they believe that by furnishing evidence in the form of fingerprints etc, though they come within the definition of “to be a witness”, it doesn’t qualify the second element of “incriminating oneself”. Merely by providing such information, which further needs to be verified and investigated, it doesn’t constitute incriminating evidence. Hence they have reached the same conclusion albeit with a different reasoning.
Therefore, the minority has used the literal rule of interpretation in interpreting the meaning of “furnishing of evidence” and therefore has included within its ambit all forms of expression made by the accused may they may be made within the confines of a court room or outside. Everything was to be included within its ambit. They have only gone ahead and restricted the ambit of protection as the same may not be considered self-incriminatory and hence cannot be garnered protection.
Critical Analysis and Conclusion:
I personally do not agree with the majority decision in this case. The majority has based its decision on certain assumptions, which are inherently faulty assumptions to base a decision on. The two assumptions, which seem most troubling is that firstly, a constitutional guarantee like a fundamental right is to be bound by the scope of traditional English common law. Secondly that this fundamental right needs to be interpreted in light of colonial era legislations such as Evidence Act and Identification of Prisoners Act and not the other way round. The Court never analysed the possibility of reading these repressive acts in light of the Constitution and hence according to me represent a purely crime control model without regard to a just social order. Further, the distinction that the court tries to draw between a evidence being furnished in court and taking fingerprints leaves open the possibility of using torture as a mechanism for the law enforcement agencies.
The minority on the other hand, even though reaching the same conclusion use a better reasoning ( in my opinion) as it uses the literal interpretation to interpret “furnishing evidence” and includes all forms of expression within its ambit. It further uses the text of the protection to exclude the use of fingerprints from the ambit of the protection and thus provide a logical basis for doing so.
Moreover, I believe to give teeth to law enforcement agencies (for the good of the collective body), the judges chose to narrowly interpret what “furnishing of evidence” meant and excluded general expressions such as giving of fingerprints etc. from its ambit.The judges also take a historical method to interpret the same. They have used the reasoning that while drafting the constitution, the drafters were aware of the existence of the laws in review and they chose to not repeal the same showing that they never anticipated the applicability of the protection of Article 20(3) to such penal legislations. It was their inference that the drafters would never want to tie the hands of the law enforcement agencies such that they would be left helpless.



[1] AIR 1954 SC 300.


Yash Vardhan Aggarwal is third year law student at the National Law University, Jodhpur. 


In Content Picture Credit: Livelaw


  1. Aditya Singh Kundu says:

    Very well analyzed .

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