- • The Supreme Court held in Ritesh Sinha v. State of Uttar Pradesh (2019) that ordering an accused to provide a voice sample does not violate Article 20(3) of the Indian Constitution.
- • Because a court's order for an accused to provide a voice sample for comparison does not violate Article 20(3) of the Constitution, hence his or her permission is not necessary.
- • The Kerala High Court recently ruled that an accused's consent is not required to collect their voice sample for comparison because it has already been established that obtaining the accused's voice sample does not violate Article 20 (3) of the Indian Constitution.
Voice sample means the recorded tone of the person which is primarily determined by the person's accent. It is a technology that recognizes the speaker's vocal attributes and is commonly used in criminal investigations to solve complicated cases that are present before the court.In other words, a voice sample is a recording of a person's voice that is solely utilized for criminal investigations and legal or constitutional issues. The Investigating Agency or Police can only collect the accused's voice sample if the Magistrate orders it. However, there are a variety of difficulties that can develop while taking a voice sample from the accused.
In the criminal field, for example, the sample in question is surreptitiously acquired either by state officials or, in some cases, by a private person and is thus likely to raise the issue of a violation of the right to privacy. In addition, collecting voice samples to match them leads to a discussion about the fundamental right against self-incrimination. This article aims to explain what a voice sample is, as well as other aspects of the right to privacy where a voice sample cannot be taken, and the constitutional basis on which the voice sample from an accused person without his consent is allowed to be taken referring a few case laws.
LEGAL PROVISIONS RELATED TO THE RIGHT AGAINST SELF INCRIMINATION
Article 20(3) of the Indian Constitution grants an accused person immunity from self-incrimination. It states, “No person accused of a crime shall be compelled to be a witness against himself." and is based on the legal maxim "Nemo teneteur prodre accussare seipsum," which means "no one is obligated to testify against himself."
Referring to various case laws, it is seen that the Supreme Court had extended the ambit of this protection by understanding the term "witness" to include both oral and documentary evidence, ensuring that no one can be forced to testify against themselves. This prohibition however does not apply in circumstances where the accused's possession of an object or document is searched or seized.
There has been a lot of discussions lately about what falls under the category of "witness against oneself." The Supreme Court declared in the case of M. P. Sharma v. Satish Chandra (1954)stated that "to be a witness" included both spoken testimony in court and presenting anything in writing outside of court that incriminated the accused. Further, the court had said to be a witness meant to provide evidence.Before referring to case laws and interpretation of courts on self-incrimination, it is important to understand the origin of self-incrimination.
The legal basis for the idea of self-incrimination is given forth in American and English jurisprudence, which states that no one shall be compelled to give testimony that may expose him to criminal prosecution. Generally speaking, the issue of self-incrimination protection has been related to the use of torture to elicit information and confessions.In comparison to the United States, we see that the Fifth Amendment of the United States Constitution asserts, "No individual shall be compelled to be a witness against himself in any criminal prosecution." The aforesaid privilege has been given a broad interpretation after being judicially interpreted in numerous circumstances and applies to both witnesses and parties in civil and criminal cases. It covers both oral and written evidence, as well as all disclosures, such as answers, that support a criminal conviction or provide a link in the chain of evidence required for a conviction.
Similarly, the basic right against self-incrimination in India is based on the Fifth Amendment of the United States and has a similar language to that found in Article 20(3) of our Constitution. Article 20 (3), as stated previously says, "No person accused of any wrongdoing shall be compelled to be a witness against himself," has elevated the fundamental rule of criminal jurisprudence against self-incrimination to a constitutional provision.Besides, it's worth noting that Section 132 of the Indian Evidence Act 1872 acts as an extension of Article 20(3) of the Constitution, which protects people from being forced to testify against their will. To elucidate further, while Article 20(3) refers to a person who has been charged with a crime, section 132 of the Evidence Act protects a witness from being prosecuted on the basis of the information given by him in a criminal proceeding which tends to incriminate him and therefore exempts a witness himself who has not been charged with a crime from accountability.
To begin with, in a recent landmark case of Ritesh Sinha v. State of Uttar Pradesh (2019),an FIR was filed against the appellant for its purported involvement in collecting money from various persons by promising jobs in the police department. The trial court granted the investigating agency permission to obtain the accused's voice print to match the voice recording located on the mobile phone seized from him. Later, the defendants in the aforementioned case appealed to the Allahabad High Court, but their case was dismissed. The matter then came before the Supreme Court were the following legal issues that needed to be handled in the case of taking voice samples:
- Is it true that requiring someone to produce a voice sample during an investigation infringes on their right to self-incrimination as granted by Article 20(3) of the Constitution?
- Are there any provisions in India's current procedural regulations that allow a magistrate to order the recording of a voice sample?
- Is there any risk to the concept of informational and bodily privacy if such requests for voice samples are issued?
The Supreme Court cited the case of State of Bombay v. Kathi Katu Oghad (1961), in which it was held that Article 20(3) of the Indian Constitution does not preclude an accused from being forced to testify. Rather, it states that such a person cannot be forced to testify against himself. According to the ruling, Article 20(3) only protects the accused from being forced to provide any information based on intimate knowledge. It does not shield the accused from providing any material or documentary evidence because such evidence is used to compare evidence rather than acting against the accused's interests.The High Courts have confirmed in numerous cases that a voice sample can be taken from an accused person without their agreement. For example, the Madhya Pradesh High Court stated in the case of R.K. Akhande vs. Special Police Establishment (2021) that requiring the accused to produce a voice sample does not imply that he is presenting evidence against himself.
It's also worth noting that, as previously indicated, there have been instances where, in addition to self-incrimination, there has been a question of privacy invasion. A few cases have been provided below to help one better to comprehend this concept.The dynamics of personal autonomy and the right to privacy under Article 21 began to be intertwined with the judgment of Justice K. S. Puttaswamy (Retd.) v. Union of India (2017). In this judgment, the majority stated that privacy allows an individual to safeguard his or her physical and mental autonomy. Therefore, the analysis to the question in hand is that because voice samples are biometrically identical, informational privacy concerns about the acquisition and storage of such samples by the government are sure to arise. Hence, the Puttaswamy decision stated explicitly that the right to govern the acquisition, use, storage, and distribution of personal information is a fundamental aspect of Article 21's right to privacy.No doubt, the testing of voice samples violates the right to privacy under Article 21 of the Constitution of India, 1950. However, there are some grounds on which such a violation could still be allowed.
Further, Punjab and Haryana High Court declared in Kamal Pal and Others vs.The State of Punjab (2021) that the accused who is judicially ordered to furnish a voice sample for inquiry or comparison does not infringe on the right to privacy.As a result, in the case of Ritesh Sinha, the Court went on to say that the right to privacy is not absolute and that it might be violated in the name of a compelling public interest. Hence, any law that infringes on the right to privacy must demonstrate that the violation is proportional to the goal being pursued. The State would have to demonstrate the effectiveness and necessity of voice identification, the availability of procedural safeguards to prevent legal misuse. The Supreme Court decided that voice sample testing is an important piece of evidence in criminal cases and that although at times it is considered as a violation of one's autonomy due to the force to secure one's voice samples, it is in the interest of justice and the public good, and thus, in the absence of law, Article 142 can be properly invoked for the aforementioned purpose.
To reiterate, no one should be forced to testify against themselves, according to Article 20(3) of the Indian Constitution. Therefore, the issue on behalf of the accused in the recent case of Raj Kumar Singh Chouhan vs State of Rajasthan (2021) was that a voice sample collected against the accused's choice would result in self-incrimination under Article 20(3) of the Indian Constitution. The court rejected the accused's plea, citing the cases of Vikramjeet Singh vs. The State of Rajasthan (2018) and Ritesh Sinha v State of Uttar Pradesh & Anr (2019) decided by the Hon'ble Supreme Court.
Similarly, in Mahesh Lal N.Y. vs. State of Kerala (2022), the important part of the issue was that a voice analysis of both the petitioner and the complainant was required to substantiate the bribe demand. On behalf of the petitioner, it was stated that forcing an accused to produce a voice sample is a violation of Article 20(3). The High Court remarked that the question does not stand, citing the Supreme Court's ruling in Ritesh Sinha vs. The State of UP, in which the Supreme Court explicitly declared that an order given to the accused to produce a voice sample is not a violation of Article 20(3).
The petitioners also claimed that when the impugned order was being made, the petitioner was not allowed to be heard, thus violating the principle of Audi alteram partem. The Court stated that hearing the petitioner, in this case, would only be necessary if his approval was required before capturing the voice sample. The subject of hearing the petitioner does not arise because this was certainly not the case, hence the need for consent was irrelevant. As previously stated, the accused's consent is not required to acquire a voice sample for comparison because the same has already been established, and this is not regarded as a breach of Article 20(3) of the Constitution.
To conclude, a voice sample is a way of obtaining a recording of the accused's voice for the objective of comparing it to other recordings of speech or conversation. The legislation certainly didn't make any provisions specifically dealing with a voice sample, but the courts, based on previous case law, did their best to pronounce a verdict that would give justice to the society without neglecting the legislation's intent as seen in the case of Ritesh Sinha vs. State of Uttar Pradesh & Anr (2019). Another significant point is that, as previously explained, the act of a court ordering someone to provide a voice sample can be infringing on a person's right to privacy and personal autonomy at times, but it is a well-justified step in the face of compelling public interest. Therefore, suitable checks and balances are required to ensure that voice samples, which are undoubtedly under the domain of privacy, are handled with caution.