The Right Against Self-Incrimination and State of Bombay V. Kathi Kalu Oghad: A Critique

Abstract

This paper follows the important stages of the evolution of case law on the right against self-incrimination as enshrined in Article 20(3) of the Indian constitution. Weaknesses of case law are highlighted as initially established in M.P. Sharma v. Satish Chandra in terms of its interpretation of self-incriminating evidence. The primary weakness brought out is the liberal interpretation of the constitutional provision which muzzled the process of investigation as envisaged in the Indian Evidence Act. This is followed by a discussion of the landmark case, Kathi Kalu Oghad v. State of Bombay which removed major anomalies in the existing case law and restored the balance between the investigation process and the right against self-incrimination. Further, case law is reviewed for whether the law on self-incrimination as it stands today is explicitly equipped to address issues arising out of technology driven social change such as the role of social media as a source of personal testimony.