Right To Privacy and Right Against Self Incrimination: The Pre-Puttaswamy Era

By Ritika Sharma, University Institute of Legal Studies, Panjab University, and Vaishnavi Sharma, NLU Mumbai


The meagre of provisions that can ensure the privacy rights of people often spark debates and the Courts look for precedents to solve the conflict between following criminal procedure and respecting privacy rights. The administration of three scientific tests and DNA testing is also facing a similar conundrum. These have been declared to be against the spirit of Article 20(3) in several judgements. The blog attempts to analyse such issues around the implication of Article 20(3) and Article 21.


In India, although, the interplay of Right to Privacy and Right against Self Incrimination have been discussed through several judicial pronouncements, yet the correct status of the Right against Self-Incrimination remains still debatable. In the recent decision of Mr. Virendra Khanna v. State of Karnataka,[1] the Hon’ble Supreme Court of India once again went through a traverse across the leading questions pertaining to testimonial compulsion and the Right to Privacy which often seems to be a game of tug of war between the “right of an individual” and “procedure established by law”. The issue about whether conducting Polygraph tests would infringe the Fundamental Right enshrined under Article 21 and Article 20(3) was answered in the affirmative by taking into consideration the decision propounded in Selvi & Ors. v. State of Karnataka.[2] Administration of a polygraph test was held to be violative of the Right to Privacy and the Right against Self Incrimination as this process involves an examination of physiological responses of the subject when some questions are being asked and this impedes the subject’s right to remain silent. The Right to Privacy passed the crucial Fundamental Rights test in the year 2017 in the decision of Justice K.S. (Retd.) Puttaswamy v. Union of India.[3] The euphony of the judgment was evident from the celebration by the people of India as the inchoate Right to Privacy won its explicit place on the couch of Article 21. However, this arduous journey from the judgement of M.P. Sharma v. Satish Chandra,[4] where the Court could not justify the inclusion of the Right to Privacy in Article 21 to the Puttaswamy[5] judgement wherein the right has finally been warmly embraced, consists of multifarious checkpoints for the development of the Right against Self Incrimination ensured by Article 20(3) of the Indian Constitution.

The Emerging debate around Privacy and Self- Incrimination

The nexus between the Right against Self Incrimination and Right to Privacy first came into the limelight in the case of MP Sharma v. Satish Chandra,[6] in which the Court relied upon the American Fourth Amendment. The court denied including it within the scope of a Fundamental Right by naming it a “strained construction”. Further, it was held that “a power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law”. In the case of The State of Bombay v. Kathi Kalu Oghad,[7] the Court explained the term “to be a witness” which was vaguely discussed in MP Sharma.[8] It was laid down that the term “to be a witness” under Article 20(3) does not include providing “thumb impression or impression of palm, foot or fingers or specimen writing or exposing a part of the body by an accused person for identification” as the accused in these circumstances is not “compelled” to be a witness against themselves. Also, in the case of V.S Kuttan Pillai v. Ramakrishnan,[9] searching of the accused or asking him to show any mark on his body was not considered against the spirit of Article 20(3). Similarly, the directions to any person to give their voice sample is not an intrusion or a violation of the Right against Self-Incrimination as laid down in the case of Ritesh Sinha v. State of Uttar Pradesh.[10] The Court in this case recounted the 87th Report of the Law Commission, 1980, regarding the identification of the Prisoners Act, 1920, to elucidate on the concept of voiceprint which resembles fingerprint because of their peculiarity and distinctiveness thereby unhindered from the touch of privilege under Article 20(3).  As the Commission also added that there was no statutory provision that expressly requires an accused to provide their voice sample, the Court concluded by showing the desire of an explicit provision with regard to voice samples under the Criminal Procedure Code to be included by the legislators.

Another essential element of the Right against Self-Incrimination is that it applies in giving evidence against themself. This grants the accused the Right to remain silent. The extent of remaining silent or this “silence zone” has also been a debatable question. It is settled that this right comes into play when there is “mischief”. The detailed discussion on the controversial issue of the right to remain silent was discussed in the case of Nandini Satpathy v. PL Dani.[11]The Court observed that two things are essential to justify the claim of self-incrimination which are the context and the environment. There should be a real apprehension of some “injurious disclosure” which should be not too remote or illusionary. This apprehension in answering the question is pivotal and varies from case to case. However, in case of any dubious situations, the claim regarding “injurious disclosure” should be liberally construed. It is also pertinent to note that an accused can be compelled to submit to investigation by allowing his photographs taken, voice recorded, his blood sample tested, his hair or other bodily material used for DNA testing, etc. which marks an exception in this field.[12] In all other cases, there is a choice between staying silent and speaking irrespective of the results of the testimony which could either be exculpatory or inculpatory. Furthermore, the Court highlighted that the prohibitive sweep of Article 20(3) goes back to the stage of police interrogation and not commencing in Court only. The phrase “compelled testimony” includes not only the evidence procured by mere physical threats but also by “physical torture, atmospheric pressure, environmental pressure, tiring interrogative proximity, overbearing and intimidatory methods, etc.”

The Scientific Tests vis-à-vis Testimonial compulsion

The increasing scientific involvement in conducting investigation added scientific tests to the list of enemies of the Right against Self-Incrimination. These tests namely, Narco Analysis, Polygraph test and Brain mapping test, on one hand, were seen as the methods to churn out the truth from the accused, while on the other, these posed huge obstacles in fulfilling the purpose of Article 20(3). The case of MP Sharma[13] generally laid down the rule that eliminating testimonial compulsion is not to be restricted to just “oral evidence” as if already predicting the introduction of the scientific tests in the investigating process. However, in Dinesh Dalmia v. State of Maharashtra,[14] it was observed that conducting these tests for the purpose of investigation “will not amount to breaking the accused’s silence by force”. It is interesting to note that in this case,[15] these scientific ways of investigation were viewed as a replacement for adopting third-degree methods to cull out information as the recourse to the latter was amounting to human rights violations.

However, in the case of Smt. Selvi & Ors. v. State of Karnataka & Anr.,[16] the validity and reliability of these tests were in question which resulted in a voluminous pronouncement by the Hon’ble Supreme Court. The Court delicately distinguished the tests from medical tests and the examination of hair samples, semen, etc. and put them in the box of making oral or written statements by asserting that the consequences of the two are the same. The compulsion for undergoing these tests stains the condition of “positive volitional act” which is a sound reason behind challenging Article 20(3). This trespass in the mental space of the accused is considered to be ultra vires the process of investigation. Thus, it was held that narco-analysis tests cannot be forcefully conducted on the accused. Moreover, the decision in Kathi Kalu[17] excluding every information that reflects “personal knowledge” tagging it to be incriminatory gives a green signal of granting protection to the accused against these tests.

Another issue that arises with the three tests is that of reliability as these tests have the probability of giving untrue results. Polygraph test gives results based on a change in a person’s heartbeat or blood pressure while answering certain questions intrinsic to the matter. Therefore, the test results do not take into account the elements such as stress or fear which are very common in these circumstances. Similarly, in a Brain Mapping test, brain impressions are noted. The argument in the favour of these tests is that no oral or written statements are made which takes out the possibility of declaring them as invalid under Article 20(3) of the Constitution. There have also been several voices raised against the authenticity of results of Narco Analysis Tests as a person under the influence of narcotics, for example, may not be able to utter the truth every time. There is not a 100% accuracy rate of Narco Analysis Tests which time and again questions the inclusion of this method as a part of our investigation process.

It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others.[18] In addition to this, the protective umbrella of Article 20(3) cannot be applied in the cases of “informed consent”.

DNA Testing and its effect on the right against self-incrimination:

Another area that demands attention is the constitutionality of the DNA Testing method which has also been used and argued against in innumerable judicial pronouncements. DNA technology is used to prove paternity as well as it is an effective way of identifying the presence of any person at a crime scene, especially in rape cases in which there is a lack of witnesses.  In Sharda v. Dharampal,[19] the medical examination in the divorce matter was being questioned by the wife as her husband wanted to prove that she was suffering from “unsoundness of mind, mental disorder or insanity”. Several arguments were made to stress upon the free will and volition of the person who has to undergo such tests, however, the Court stated that “If for arriving at the satisfaction of the court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise”. The Court further elaborated on drawing an adverse inference in the cases where a person denies submitting themself to such tests. However, this obiter dicta of the Court was criticised in the case of Rohit Shekhar v. Narayan Dutt Tiwari,[20] where the Court remarked that the Courts visioning their own orders to be “un-implementable and un-enforceable” can make the Courts and its orders a matter of “laughing stock”.

In the case of Thogorani alias K. Damyanti v. State of Orissa & Ors.,[21] the petitioner requested DNA testing of a person to prove the paternity of her two children in order to establish the charge under Section 316 of the Indian Penal Code. However, the provisions namely, Section 315 CrPC, Article 20(3) and Article 21 seemed to be protecting the Respondent against DNA testing. The Court stated the significance of balancing public interest and privilege under Article 20(3) and succinctly listed the considerations, which are essential to tackle this case of war between the two. Consequently, it was held that conducting a DNA test, in this case, will not amount to the “accused becoming a witness against himself”.

New beginnings:

The Court in the case of Bhavesh Jayanti Lakhani v State of Maharashtra,[22] stated that “the theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of “personal liberty” under Article 21”. Hence, our understanding of the “right to privacy” should account for its intersection with Article 20(3).

Furthermore, the “rule against involuntary confessions” as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. Moreover, the Court very distinctly made emphasis on “personal autonomy” and the conjunctive reading of Article 20(3) and Article 21 of the Constitution. This, undoubtedly, made the Right against Self-Incrimination an intrinsic fragment of the Right to Privacy but whether the Right to Privacy comes within the shadow of Article 21 was still being questioned and contested in numerous cases till the advent of the Puttaswamy[23] judgment which rescued and wiped off this obscurity.


The judicial function is not to legislate but in certain situations, the Courts may be required to express their opinion and call the legislature to action on the principle of imminent necessity. Article 20(3) defines the Right Against Self-Incrimination in simple words but it has not been successful in devising feasible principles for its correct implementation. Thus, the Pre-Puttsawamy era demanded a proper analysis of the Right to Privacy and its role in protecting Right against Self-Incrimination.

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.

[1] 2021 SCC OnLine Kar 5032.

[2] (2010) 7 SCC 263.

[3] (2017) 10 SCC 1.

[4] AIR 1954 SC 300.

[5] (2017) 10 SCC 1.

[6] AIR 1954 SC 300.

[7] AIR 1961 SC 1808.

[8] AIR 1954 SC 300.

[9]  V.S. Kuttan Pillai v. Ramakrishnan & Anr., (1980) 1 SCC 264.

[10] (2013) 2 SCC 357.

[11] (1978) 2 SCC 424.

[12]  M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 1064- 1065. (LexisNexis 2007).

[13] AIR 1954 SC 300.

[14] Dinesh Dalmia v. State of Maharashtra, Cri LJ (2006) 2401.

[15] Id.

[16] (2010) 7 SCC 263.

[17] AIR 1961 SC 1808.

[18] Smt. Selvi v. State of Karnataka; AIR 2010 SC 1974.

[19] AIR 2003 SCW 1950.

[20] (2012) 12 SCC 554.

[21] 2004 CriLJ 4003.

[22] Justice K.S. Puttaswamy (Retd.) v. Union of India 7 Ors., (2009) 9 SCC 551.

[23] (2017) 10 SCC 1.

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