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Silence of The Lambs - Article 20(3) In Administrative Proceedings

Written by: Alekhya Prakash - Law Student
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The Origin:
It is always a good idea in most circumstances to begin at the beginning. And the beginning of the right against self-incrimination lies in the seventeenth-century trial of John Lilburne, a Puritan agitator who when put on trial refused to take an oath requiring him to answer questions posed to him truthfully and was as a result whipped and pilloried . Subsequently, the punishment was declared illegal and the Star Chamber was abolished. It didn't help Lilburne much of course, but it set a precedent the right against self-incrimination was, in a manner of speaking, born. Since then, this principle of nemo tenetur accusare se ipsum has been handed down in legislative and constitutional history as a forbearer of procedural fairness. In criminal trials. For, the privilege does not extend to administrative proceedings. Initially, the law did not extend this umbrella over civil proceedings either; lately the courts have been experiencing a few qualms in this regard. And that for a research into the contours of administrative law is evidently problematic. A diatribe, it would seem, is in order. However, before that it would perhaps be best to appreciate the scope of the right against self-incrimination.

Scope of the Right against self-incrimination:

Quite simply, the right against self-incrimination is invocable when four conditions are satisfied, namely, the person questioned is an accused , the testimony obtained from such person is compelled , such person is in the position of a witness, and such testimony obtained from the accused in his position as a witness is against himself. Hence, within the Indian law, the immunity is only specific, that is, available only to persons suspected of criminal offences.
All these ingredients are allegedly missing when it comes to enquiries by administrative tribunals. The testimony is not compelled , and even if the testimony be held to be against the person s interest, yet the ambit of the right cannot be held to be extended to the witness, for the person is not an accused in the true sense of the term. This has been held in a plethora of cases, be it Raja Narayanlal , Joseph Augusthi , R.C. Mehta or Popular Bank . Given this interpretation, interesting parallels are possible between the law relating to Article 20(3) as it has shaped up in criminal proceedings and administrative proceedings.

Article 20(3) in Criminal Proceedings:

The privilege in criminal law is based on and determined by section 161(2) of the Code of Criminal Procedure, section 27 of Indian Evidence Act and Article 20 (3) of the Constitution of India . The most pertinent case in this regard is undoubtedly Nandini Satpathy v. P.L.Dani , wherein Krishna Iyer, J. widened the scope of the protection considerably. The issues before the court were various: the ones significant for the instant paper were whether a potential candidate for accusation can avail of the privilege, does the privilege extend to other pending or potential accusations outside the specific investigation which has led to the questioning, at what instance in the entire proceeding does the privilege become available, the scope of compulsion, and whether the privilege extends to derivative evidence. It was subsequently held that, the right extends to witness and accused alike, that the expression 'accused of any offence, must mean formally accused in praesenti not in futuro, that it applies at every stage at which furnishing of information and collection of materials takes place, that the privilege extends not only to the deployment of the information obtained as evidence in a criminal prosecution, but to the extraction of the information itself , that the true test for testing valid invocation of the right is reasonable apprehension of the accused/witness as to the use of the information against him/herself, and finally, that compelled testimony includes evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like, but not legal penalty for violation.

Despite this slight caveat, it is evident that the protection against self-incrimination is undoubtedly quite extensive in criminal law, extending as it does to almost all people, at almost all stages of a criminal trial. It is this wide armor that must be kept in mind at all times while discussing the right as available in administrative proceedings.

Self Incrimination in administrative proceedings pre-1978:

It has been already mentioned earlier in this paper that the right against self-incrimination is denied in administrative proceedings. What is however intriguing is that until 1978, the position was more or less similar in criminal and civil laws. After 1978, i.e., post-Nandini Satpathy, the divide between the two realms has increasingly widened. The evolution of the law in this regard can be traced to begin from the enunciation of the essentials of the right against self-incrimination in M. P. Sharma . This case held that in order to extend the protection of Article 20(3), the person must be accused of an offence, and that he must have been compelled to be a witness against himself.

This was carried over in Devsi Dosa , which held that to extend the right against self-incrimination to civil proceedings would be equivalent to providing a premium on dishonesty. It is intriguing that the learned court does not comment on the fact that the logical conclusion of such an assumption would obviously be that the existence of the right at all is equivalent to providing a premium on crime. Hence, if there is no right against self-incrimination in civil proceedings, by the same analogy there shouldn' be any such right in criminal proceedings either. This of course is to treat the right as a mere privilege. Subsequently, it was held in Shankerlal that the right is available only with respect to criminal prosecution. However, a moderate change was effected in the prior position in that a person would be an accused even if being tried by a Customs officials if it can be fairly and properly said that he is likely to be proceeded against in a criminal court, and this in turn would depend on the facts of the case. This, in practical application, is not much of a difference from the previous stand of the courts since the fact of the person being accused or not would quite naturally depend on the deposition of the officer-in-charge as to the fact whether it had been decided that a criminal prosecution was to be launched.

Thus, it is almost an exercise in futility, though marking a slight change in the principle in question. The same dictums were or less repeated in Basanta Kumar . Subsequently, it was held in Allen Berry that if a tribunal is set up for fact finding alone, it is under no obligation of any kind of following a judicial procedure or applying the rules of fair play, since it does not perform any judicial function. However, the decision itself acknowledges that such rules of fair play must apply in judicial, quasi-judicial and those administrative proceedings which affect the rights of the citizens. It is impossible to imagine any fact-finding exercise being undertaken which does not affect the rights of a person. In fact, if it indeed did not affect the rights, there would be no litigation in the first place if no one is affected, then consequently no one has the requisite locus standi. Hence, the decision, in a manner of speaking, is hoist on its own petard. These decisions are followed by a catena of cases, namely, Bansilal , Popular Bank , Augusti , and R. C. Mehta , which are but echoes of each other.

All of them withdraw the few concessions made by previous judicial pronouncements and hold quite unequivocally that Article 20(3) is not applicable in administrative proceedings because, even if the evidence be compelled, yet the person is not within the aegis of the word accused , and hence even if prosecution be launched subsequent to such enquiry, such prosecution would not alter the non-judicial nature of the fact-finding enquiry. Interestingly, in all these cases it was the argument of the petitioners that given the nature of the power of the investigating officers and the consequences attached to an adverse finding, the proceedings were if not judicial, then at least quasi-judicial in nature. It was thus, taken for granted even by the applicants that the right against self-incrimination is not available in administrative proceedings, especially if such finding does not result in criminal prosecution. This leaves quite a large area open to question and further adjudication, namely, disciplinary proceedings. What if there is an enquiry launched at the workplace against an employee for an offence that has no criminal implications? It may be argued that such minor acts are not really offences within the meaning of Article 20(3) and hence, the person is not really an accused. However, it is submitted, that a civil penalty is nonetheless penalty; even if its effect is not one of social deterrence, yet the implications for the individual are grave enough.

This claim of course is the nub of the matter. The rationale of the courts is similar: Article 20(3) is available in case of criminal prosecution. In case of administrative enquiries, one doesn' really know whether the person will be found guilty or not. Even if the person is found guilty, though administrative action might be taken against the person, it is quite doubtful whether the person will be prosecuted before a criminal court. If the person is so prosecuted, and then asked incriminating questions, then evidently he may avail of the right under Article 20(3), though if there were any incriminating questions the person (now called the accused) was compelled to answer then those may also be adduced as evidence in the subsequent criminal trial, for Article 20(3) did not extend to those proceedings and vitiate the evidence. Such touching faith in the goodness of the administrative tribunals really!

Right to silence in administrative proceedings post-1978:

Post-1978, despite the ruling in Nandini, the courts have elected to follow the precedent as set by R. C. Mehta et al. Thus, the same ratio is pronounced yet again in Poolandi : the protection does not extend to some hypothetical person who may in the future be discovered to have been guilty of some offence. The differentiation made in M. P. Sharma between to be a witness and appear as a witness, which was quite lost sight of by the courts in the main until Nandini was promptly dismissed off again, for the court preferred to differentiate between proceedings between administrative proceedings and proceedings under the Code of Criminal Procedure. This is evidently problematic. Even if an administrative proceeding does not have a direct criminal implication for the accused (or rather, the person being investigated), the fact is that there are some implications entailed, specifically with relation to the reputation of the person as a professional. This in itself should be enough to invoke the right to fair trial as enshrined in Article 20. To say on the one hand that an administrative proceeding is a mere fact-finding mechanism and therefore by implication has no significant impact on the person involved, while on the other hand arguing that to include such a right would hamper the functioning of the administrative body, and would hence have a significant impact on public interest is tantamount to unquestioning assumption of a paradoxical premise and arguing thence onwards.

Conclusion:
The paper thus far has more or less limited itself to a description of the status of the right against self-incrimination in administrative proceedings. And has hopefully shed adequate light on the evolution of the right in this area. But to effectively appreciate the ramifications of such an approach as has been adopted by the Indian judiciary, the researcher proposes three matrices, namely, obstacle v. fairness, right v. privilege, and power v. accountability. Needless to say, the three are inextricably linked.

# Obstacle v. Fairness: This matrix is perhaps the most obvious of all, though nonetheless useful. On the one hand is the evident stake in public interest in the fact of all fact-finding being efficiently, speedily and accurately concluded, on the other hand is the interest of the person accused or being investigated in having a fair trial/investigation conducted:

# The inherent quandary of the penal law in this area springs from the implanted dilemma of exacting solicitude for possible innocents forced to convict themselves out of their own lips by police tantrums and the social obligation of the limbs of the law and agencies of justice to garner truth from every quarter, to discover guilt, wherever hidden, and to fulfil (sic) the final tryst of the justice system with society.

# One may of course argue that since the process is a mere fact-finding, there is no substantial right of the accused involved. This, in the main, has been the line taken by the courts. Just to be contrary, one may argue on the other hand that law and order, security of State, public interest etcetera are merely powerful semantic tools, which define and justify themselves. This has been the line taken by Chomsky. In the end, of course, what one may conclusively state is that there is an evident conflict of interest. This conflict to a large extent is determined by the way one looks at Article 20(3): a right or a privilege.

# Right v. Privilege: To put it bluntly, privileges can be suspended, rights can t. The former are negotiable, the latter aren'. The court thus far (with the notable exception of Iyer, J. in Nandini Satpathy) seem to have assumed that Article 20(3) is a privilege, and hence extends, based on the beneficence of the court to criminal proceedings. However, it is submitted that being a fundamental guarantee enshrined in the Constitution, the right against self-incrimination in fact is just that: a right. For best results, therefore, one must merge the ratios of Nandini Satpathy and Joseph Augusti and hold that evidence legally compelled is also compelled for the purposes of Article 20(3) (for a right cannot be overridden in the absolute by a statute, though a privilege can), and that Article 20(3) extends to the stage of formal accusation and in case of an administrative enquiry, the person for all practical purposes is accused. Given the fact that the consequences of administrative proceedings are on the same plane as the criminal, since they more often than not lead to the latter, there seems to be no reason to hold that the same protection should not extend in both areas. And even if this not be the case , one must still give due consideration to the matter whether the right should encompass such situations as well. This then brings one face to face with the issue of power v. accountability within administrative proceedings.

# Power v. Accountability: The USP of administrative fact-finding is its inquisitorial nature. It makes functioning of the administrative organ that much the more rapid. On the other hand, it is more direct an interface between the government and the individual. The system thus to begin with is heavily tilted in favor of the State. Let's all this power equation one. On the other hand, more often not, such fact-finding machinery kicks in to apprehend people not readily apprehensible otherwise. The people with power. Power equation two.

If one then does not exert rights as control over the power of the State, it is tantamount to letting the executive do that through administrative proceeding, which it can t through criminal prosecution. On the other hand, too much of the protection, and fact-finding in itself is rendered purposeless. One check that the researcher thought to be inherent within Article 20(3) was the fact that it extends only to self-incriminatory questions and in an investigation, not every question would be so. But in case of any dispute regarding whether the particular question asked was self-incriminatory or not, one must then resort to courts. This however would amount to sacrificing the swiftness of the administrative body (which is one of the chief reasons for preferring them over courts).
Thus, it is seen that to balance the various stakes and the conflicting interests within the various matrices posited is indeed a Herculean task, and is not as open-shut as the courts seem to think it. This paper does not have solutions to offer. However, it is evident that there are interests in the rights of the accused within an administrative enquiry, and even before one balances them against public interest, one must at the very least acknowledge the existence of such interests.

The author can be reached at: alekhya@legalserviceindia.com / Print This Article

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