When does self- incrimination right kick in: At trial or at investigation?
The position in UK apparently is that it kicks in at the time of trial. So this means police has right to collect all evidence possible- only at the time of trial it will be decided if it is incriminating or not- and hence whether it is self- incriminating. If self-incriminating it will be excluded from evidence.
But position in Indian law is completely different- as seen in Selvi decision. Self- incrimination right extends back to the investigation stage.
"100. ....It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. ...Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is `to be a witness' and not to `appear as a witness': It follows that the protection afforded to an accused in so far as it is related to the phrase `to be a witness' is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution. "
Separating the testimonial and the non-testimonial
Sample this argument. I have some documents which have content that would incriminate me for an offence. Now I'm being asked to produce the document. The act of the production of the document in itself is a testimony because by producing it I'm communicating that I have control over the document/ the document is in my possession. But the contents of the documents also communicate my involvement in a particular offense, my guilt. Now the argument goes that the contents of the document do not really constitute testimony and hence it should not be protected under the right against self incrimination. This is because the contents of the document have not been recorded by my dependence on police investigation.
On the other hand it is argued that these two processes cannot really be divorced from each other as one leads to another. So even if the act of production attracts self-incrimination provisions and the document itself does not- by being linked with the act of production, the document becomes tainted and attracts the self-incrimination provision.
Foregone conclusion
Memory v. something physical
Idea is that accused cannot be asked to produce something which exists in his memory, and does not have a physical presence. Even though password has a real physical link- its knowledge exists only in the memory. It is this knowledge in memory which is to be protected under the self-incrimination privilege.
When it works
Foregone conclusion applies only when the prosecution is aware of the existence and location of a particular thing with the accused. When it is already known that the accused is in possession of a certain thing, then no self- incrimination will happen. But what when police randomly ask the accused to open safes and shelves and all?
....The police may compel the accused to open stuff under law- but they cannot compel the production of something.....(???)
Q. If police have a search warrant for accused's house, is it also a warrant to search their safes, locked areas etc.? Or is a separate search warrant for that needed? note however that under s. 69, IT Act, the need for a warrant is not there.
Things--
1. Analogy of a password with a physical key
If you do not give the physical key, adverse inference may be drawn against you- does 7 years in jail as prescribed under s. 69 of IT Act then be illegal?- because there is a difference between adverse inference and certain punishment.
2. Analogy of password with a testimony
Since password is a knowledge stored in mind/ memory, it cannot be asked for compulsorily. Since contents of laptop etc. can be revealed only via the password which is protected info. n which acts as a link to reach the docs. compulsion cannot be effected to get the evidence.
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