"Custodial Compelled Confessions”
VERSUS
“Custodial Confessions Made Voluntarily”
An Opinion:

​Kulbhushan Jadhav deserves acquittal by the International Court of Justice (ICJ)

By: Balbir Singh Sooch

Counter-Terrorism Laws: The Supreme Court on Confessions by Solil Paul*

Whether The Cultural Climate Is Conducive To Differentiate Between the "Custodial Compelled Confessions” AND the “Custodial Confessions Made Voluntarily” In India and Pakistan? ANSWER IS BIG ‘NO’

The TADA Procedure Allowed Confessions Made To A Police Officer Admissible???

“Finally, the Court concluded: All that the Court has to see is whether the power is used for any extraneous purpose, i.e. to say, not for achieving the object for which the power is granted and whether the Act (TADA) has been made on grounds which are not germane or relevant to the policy and purpose of this Act and whether it is discriminatory so as to offend Article 14. In our considered opinion, the classifications have a rational nexus with the object sought to be achieved by the TADA Acts… and consequently there is no violation of Article 14 of the Constitution”.

REBUTTALL (To deny the truth of something, especially by presenting arguments that disprove it) AGAINST CONFESSIONS ALLOWED UNDER THE ‘TADA’:

1. The Constitution itself does not speak on the issue of custodial confessions. Article 20(3) of the Constitution of India declares that, "No person accused of any offence shall be compelled to be a witness against himself."

2. “Justice Sahai cautioned, similarly: Giving power to police officer to record confession may be in line with what is being done in England and America. But that requires a change in the outlook by the police. Before doing so the police force by education and training has to be made aware of their duties and responsibilities…. The defect lies not in the personnel but in the culture…. The cultural climate was not conducive for such drastic change.

3. Even when there was no Article 21, Article 20(3) and Article 14 of the Constitution any confession to police officer was inadmissible.

4. It has been the established procedure for more than a century and an essential part of criminal jurisprudence… A law which entitles a police officer to record confession and makes it admissible is thus violative of both Articles 20 (3) and 21 of the Constitution”.

5. The argument put forward by Justice Sahai is interesting. No one would contest the fact that the Evidence Act (1872), which bars custodial confession, was in effect much before the Constitution (1950).

6. But, that by itself cannot be sufficient reason for it being just, fair and reasonable. Moreover, after the enactment of the Constitution all existing laws have to be judged on the touchstone of the Constitution and not vice-versa.

7. The Constitution itself does not speak on the issue of custodial confessions. Article 20(3) of the Constitution of India declares that, "No person accused of any offence shall be compelled to be a witness against himself." In our context, this would mean that the constitutional embargo is only against "compelled" confessions. It has nothing against custodial confessions if made voluntarily.

8. Even under such extraordinary circumstances (It must also be clear that such presumption against the validity of custodial confessions stands rebutted only in extreme and grave times; only when existing laws fail to effectively tackle or successfully address pressing dangers to society and the nation), this is not to argue that custodial confessions be treated on par with non-custodial confessions, but rather, to acknowledge the ‘suspect’ nature of the former, and ensure that stringent safeguards be made an intrinsic part of the scheme of such laws, and that such safeguards be scrupulously observed so as to prevent the possibility of the extortion of any false confession.

9. The contention based on Article 21 was linked to the fact that the TADA procedure allowed confessions made to a police officer admissible in total contradistinction to the existing criminal procedure under the Evidence Act and the Code, and thus pleaded that this was unfair and unjust as against the "procedure established by law’ clause of Article 21 of the Constitution.

10. The counsels against TADA were severely critical of the mode and method of obtaining a confession from an accused by the police. This was something about which the Court did not need much convincing. On several earlier occasions, the Court had awarded exemplary compensation to the victims of police highhandedness. It remarked:

11. Whatever may be said for and against the submission with regard to the admissibility of a confession made before a police officer, we cannot avoid but saying that we – with the years of experience both at the Bar and on the Bench – have frequently dealt with cases of atrocity and brutality practiced by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic methods of treating the suspects in their anxiety to collect evidence by hook or crook and wrenching a decision in their favour. We remorsefully like to state that on few occasions even custodial deaths caused during interrogation are brought to our notice. We are very much distressed and deeply concerned about the oppressive behaviour and the most degrading and despicable practice adopted by some of the police officers even though no general and sweeping condemnation can be made.

12. In a bench of five, though, two judges dissented and struck down Section 15. Justice Ramaswamy reasoned in his dissenting observations: It is… obnoxious to confer power on police officer to record confession under Section 15 (1). If he is entrusted with the solemn power to record a confession, the appearance of objectivity in the discharge of the statutory duty would be seemingly suspect and inspire no public confidence. If the exercise of the power is allowed to be done once, may be conferred with judicial powers in a lesser crisis and be normalized in grave crisis, such an erosion is anathema to rule of law, spirit of judicial review and a clear negation of Article 50 of the Constitution and the constitutional creases. It is, therefore, unfair, unjust and unconscionable, offending Articles 14 and 21 of the Constitution.

13. Justice Sahai cautioned, similarly: Giving power to police officer to record confession may be in line with what is being done in England and America. But that requires a change in the outlook by the police. Before doing so the police force by education and training has to be made aware of their duties and responsibilities…. The defect lies not in the personnel but in the culture…. The cultural climate was not conducive for such drastic change. Even when there was no Article 21, Article 20(3) and Article 14 of the Constitution any confession to police officer was inadmissible. It has been the established procedure for more than a century and an essential part of criminal jurisprudence… A law which entitles a police officer to record confession and makes it admissible is thus violative of both Articles 20 (3) and 21 of the Constitution.

14. (These circumstances and the need for such safeguards have been clearly recognised and the Supreme Court in the POTA Case, noted: Parliament has explored the possibility of employing the existing laws to tackle terrorism and arrived at the conclusion that the laws are not capable. It is also clear to Parliament that terrorism is not a usual law and order problem)**.

15. Nevertheless, the Court emphasised, in the same breath, the need to balance the security concerns of the nation with well-established values of the civilized world, and warned: The protection and promotion of human rights under the rule of law is essential in the prevention of terrorism… If human rights are violated in the process of combating terrorism, it will be self-defeating. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights… The lack of hope for justice provides breeding grounds for terrorism… In all cases, the fight against terrorism must be respectful to the human rights.

**To face terrorism we need new approaches, techniques, weapons, expertise and, necessarily, new and stringent laws: … and consequently there is no violation of Article 14 of the Constitution”.

16. It was often argued that a confessional statement being recorded by a police officer is a weak type of evidence and must always be corroborated before basing a conviction. In a series of cases, the Supreme Court has held that once the confessional statement is found to be voluntary and truthful, it becomes substantive evidence and does not require any corroboration, and the maker of a confession can be convicted on such uncorroborated confession.

17. To face terrorism we need new approaches, techniques, weapons, expertise and, necessarily, new and stringent laws. It is a fact that the highest court of the country has accepted the necessity of custodial confessions, along with the accompanying procedural safeguards, in combating the menace of terrorism. It has upheld the constitutional validity of such confessions repeatedly. It is well known that highly motivated, committed and well organised criminal groups commit crimes of this nature, and witnesses are not only reluctant but altogether unwilling to depose at the risk of their own lives.

18. Unfortunately, the present Government appears to be oblivious of the essentials of the debate. With the repeal of POTA and the enactment of the diluted Unlawful Activities (Prevention) Amendment Act, it has lost out on the advantage so painfully achieved over the past years. No country with a record of as prolonged and lethal terrorist attacks as India can really afford to be without any special and effective anti-terrorist legislation.

An Extract: Courtesy by: Counter-terrorism Laws: The Supreme Court on Confessions by Solil Paul*

*Solil Paul is Senior Fellow, Institute for Conflict Management, New Delhi. The author would like to thank Mr. Subramanium Prasad, Advocate, Supreme Court, and The Chambers of Law for their invaluable inputs and library assistance.

Edited and Commentary by: Balbir Singh Sooch:

IN VIEW OF THE ABOVE DISCUSSION AND ARGUMENTS:

A. “In case, we are of the view as author of this ‘article’ expressed above as “To face terrorism we need new approaches, techniques, weapons, expertise and, necessarily, new and stringent laws: …… and consequently there is no violation of Article 14 of the Constitution as stated above in Paragraphs 14, 16 to 18;

” Then “Pakistan has to and very likely to base and rely upon its case at the International Court of Justice (ICJ) against India on the confession statement of Indian national Kulbhushan Jadhav.”

B. Otherwise, So Far ‘The Cultural Climate Is Not Conducive To Differentiate Between the "Custodial Compelled Confessions” AND the “Custodial Confessions Made Voluntarily” In India and Pakistan? ANSWER TO IT SEEMS TO BE BIG ‘YES’.

C. Then the incarcerated, in- prison, caged (to place somebody in a place or situation of confinement) Kulbhushan Jadhav’s confession (Obtained by Oppression) is not admissible as the “crux” of the case of Pakistan and Kulbhushan Jadhav deserves acquittal by the International Court of Justice (ICJ) and the personal views of the author of article, ‘Counter-terrorism Laws: The Supreme Court on Confessions’ must be ignored and rejected”: Balbir Singh Sooch-Sikh Vichar Manch concluded.

Kulbhushan Jadhav deserves acquittal by the International Court of Justice (ICJ)