On March 1, 2023, while deciding criminal appeals relating to some Chhattisgarh bureaucrats, the Supreme Court made the following observations:

"We quite appreciate that there could be cases of innocent public servants being entangled in investigations arising out of motivated complaints and the consequent mental agony, emotional pain and social stigma that they would have to encounter in the process, but this small price has to be paid if there is to be a society governed by the rule of law."

The context in which these observations were made was allegations of corruption and illegal amassing of wealth by certain civil servants for which there was sufficient prima facie evidence supporting the allegations. The presence of the above quoted words at the fag end of an otherwise laudable and lucid judgment, however, starts bells ringing about the rights of innocent persons falsely accused of any offence for extraneous considerations. Such cases are not unknown in India, as the present writer had experienced during his long career as a civil servant at considerable cost to himself and his family. Whether that was a small price or unduly large and avoidable is a subjective judgment and the pain of the wearer of the pinching shoe may be considerably different from that of a detached observer evaluating that pain.

In India, the word "investigation" is inseparably linked to allegations of torture.  In this column on November 9, 2020 we had written under the heading "Law of Evidence and Democracy" and the observations of the apex court have prompted us to revisit the issue. We had mentioned that a democratic state has the unenviable task of reconciling the dual obligations of protecting the rights of individuals and of protecting the society against individuals inimical towards social order. We recognised the difficulties of the investigator because a "successful" criminal will do his utmost to hide his tracks and hence the temptation on the part of the investigator to resort to shortcuts.  Faced with a brick wall, he either "persuades" the accused during interrogation to disclose evidence against himself, or fabricates evidence. Readers may neither take our word for this assertion nor trust the apocryphal stories about the existence of interrogation centres and the screams emanating from these dungeons at night. Yet, they may not as easily ignore the assertion of the Law Commission of India in their May, 2002 Report on "Article 20 (3) of the Constitution of India and the right to Silence" of a person accused.

The Commission had listed three facets of the right to silence viz. the burden on the prosecution to prove the guilt of the accused, the presumption that an accused is innocent till he is proved guilty and the right of the accused against self-incrimination. It is the last that gives an accused the right to remain silent during investigation and trial so that the state does not use coercion or fraud of any kind to make him incriminate himself and thus facilitate the discharge of the burden of proof cast on the state. The Law Commission Report says that "One may ask the question as to in how many cases Police Officers in India are strictly following the rules laid down by the Supreme Court in D K Basu's case? In a pending public interest litigation in the Supreme Court, it was reported by the amicus very recently that, according to the information received from various States, it was clear that D K Basu guidelines are not being followed in most of the States. Can anybody assure that in India, the Police invariably would inform a person in detention that he has a right to call a lawyer at the time of his interrogation? Even if we introduce a rule to that effect and even if the Police record in their diary that such an opportunity was given, one cannot say how much credence can be given to such a noting in India." M. Jagannadha Rao, former Judge of the Supreme Court and other members of the Commission had signed the Report.

In our 2020 article, we had mentioned that in China, 99 per cent of criminal cases end in confession. While in India, the arrested person has to be produced before a court within 24 hours of arrest, in China, the period of non-judicial detention can be up to six months. Thus it is that the arrest becomes disappearance, till some months later the person appears before cameras and confesses to his crime. Yet,unbelievable though it may seem, the right to remain silent was brought on the statute book in China in 2000 when it was prescribed that convictions shall not be based on confession but on impersonal and reliable proof. This just goes to show that mere existence of safeguards in the criminal code or even in the constitution will not confer rights on the individual unless the society and the three pillars of the state jealously guard such rights. In India too, there are express provisions in the Constitution granting a right to the accused to remain silent and against self-incrimination. Article 20(3) of the Constitution says, "No person accused of any offence shall be compelled to be a witness against himself." Section 161(2) of the Criminal Procedure Code says that during interrogation a person may not answer "questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture." In the face of these safeguards, the judgment in D K Basu case mentioned by the Law Commission laments, "Experience shows that the worst violations of human rights take place during the course of
investigation, when the police with a view to secure evidence or confession often resorts to third degree methods including torture..."

Yet, one of the grounds for seeking remand remains that the accused is not cooperating with the investigation or is giving evasive answers. 

This brings us back to the "small price" mentioned by the Supreme Court, paid by an innocent person, in terms of "mental agony, emotional pain and social stigma" and not infrequently in terms of physical torture, when he is investigated for a motivated complaint. What the apex court writes creates a norm, legal, social or moral. The moral norm created by these words of the court will marginalise the sufferings of the innocent. The condition of the law of torts in our nation is pathetic and not many sufferers have the resources or the will left in them to seek recompense. It would have helped if the court had added a few words to these observations to the effect that in such cases, the person initiating and conducting investigation into a false and motivated complaint as well as the state shall be liable to adequately compensate the innocent for all the price, small or large, paid by the innocent and his family. It should have added that the right to silence and the right to legal counsel during interrogation must be respected on the pain of the wrath of the Apex Court itself. It will not be too late if the Court still wants to revisit the issue and make amends.