The 'Deluded Instrument of His Own Conviction:' On the Admissibility of Custodial Statements and Confessions under the Indian Evidence Act, 1872
| Author | Khagesh Gautam |
| Position | Jindal Law School |
| Pages | 3-53 |
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2020 e Institute for Migrant Rights Press
thE “dEludEd instrumEnt of his
own ConviCtion”*
on The admIssIbIlITy of CusTodIal sTaTemenTs and
ConfessIons under The IndIan evIdenCe aCT, 1872
Khagesh Gautam
Jindal Law School
Email: kgautam@jgu.edu.in
Under section 27 of the Indian Evidence Act of 1872, an inuential British en-
actment that ‘still forms the basis of a number of Evidence Ordinances in the
Commonwealth’ and is still applicable in the Republic of India, such parts of an
accused’s custodial statement (including a full custodial confession) can be used
as proof against the accused. e Law Commission of India unfortunately has
found section 27 to be one of the leading causes of custodial torture and police
misconduct. e Supreme Court of India agreed. e Court, and before that the
British courts have rendered several decisions interpreting section 27. However,
this rich body of case-law has not yet been subjected to any critical academic
inquiry. is paper, intending to ll this gap, examined for the rst time with sec-
tion 27 jurisprudence as it has evolved in India (including important decisions
from British India era), and the following was discovered: (i) a survey of key
section 27 case-law discloses that the jurisprudence developed by the Supreme
Court of India in this area is disjointed and lacks coherence; and (ii) the Court’s
jurisprudence discloses four distinct schools that are contradictory to each other.
is survey demonstrates the urgent need on the Court’s part to remedy this lack
of coherence and inconsistencies in order to reform Indian evidence law insofar
as the admissibility of custodial statements and confessions is concerned.
Keywords: Legal Transplantation, Litigation, Criminal Procedural Law, Legal
Interpretation.
* 2 W H, T P C, 604 (6th ed., 1787)
e author would like to thank Prof. Joseph L. Homann, Harry Pratter Professor of Law, Maurer School
of Law, for his detailed comments from which this article greatly benetted.
VIII Indonesian Journal of International & Comparative Law 3-53 (January 2021)
4
Gautam
INTRODUCTION
A sound and eective criminal justice system has been known from
time immemorial1 as a necessary precondition of a civilised state.2
Learned sages of antiquity have, since the composition of the ancient
Indian epic e Mahabharata highlighted the importance administer-
ing punishment under the law in order to maintain a righteous soci-
et y.3 e Mahabharata, in the chapter on “e Dharma of the King”
gives two important pieces of advice: (i) the rst task of a country is the
consecration of a king; and (ii) the highest duty of a king is to adminis-
ter justice.4 Kings have now been replaced with democratically elected
Presidents and Prime Ministers, but the underlying wisdom remains.
Prof. Herbert Packer once memorably remarked that, “ . . . the shape
of the criminal process has an important bearing on the questions
about the wise substantive use of the criminal sanction.”5 So far as the
design and structure of the criminal justice system in contemporary
times are concerned, two models have been inuential, viz., the Crime
Control Model, and the Due Process Model.6 Both, the Crime Control
1. K, T A 377-79 (L. N. Rangarajan, ed.) (Penguin India,
1987) (noting that, “An essential duty of government is maintaining order;
Kautilya denes this broadly to include both maintenance of social order as
well as order in the sense of preventing and punishing criminal activity.”).
2. See e.g., Bill Ong Hing, Providing a Second Chance, 39 C. L. R. 1893,
1896-97 (2007) (observing that, “Fear of violence is normal and a civilized
society should take the necessary precautions to implement a criminal justice
system that protects its citizens and maintains social order.”); Charles R.
Shreer, Jr., Judicial Approaches to the Ambiguous Request for Counsel since
Miranda v. Arizona, 62 N D L. R. 460, 462 (1987) (quoting with
approval Powell, J. of the U.S. Supreme Court: “A more traditional, and, in my
view, a sounder balance is evolving between the rights of the accused person
and the rights of a civilized society to have a criminal justice system that is
eective as well as fair.”).
3. T M 609 (John D. Smith, tr.) (Penguin India, 2009).
4. Id. at 608, 609.
5. Herbert Packer, Two Models of the Criminal Process, 113 U. P. L. R. 1, 1
(1964).
6. Id.; Bruce Berner, Miranda Project Introduction, 40 V. U. L. R. 599, 599
(2006) (noting that, “For me, the single most important work in understanding
5
e “Deluded Instrument of his own Conviction”
Gautam
Model and the Due Process Model, are based on competing priorities
and therefore the respective design and structure of the criminal justice
system under these models looks and works completely dierently
from each other. Whereas the Crime Control Model focuses on crime
reduction, the Due Process Model focuses on protection of individual
rights against the state.7
Surprisingly, or rather counter-intuitively, both models pay a lot
of attention to ensuring that investigative mechanisms of the criminal
justice system are ultimately able to uncover the truth.8 In the Crime
Control Model, however, it appears that the facts as uncovered by an
investigative agency are usually presumed to be true,9 whereas in the
Due Process Model the investigative agency bears the further burden of
establishing the veracity of the facts before a court of law.10 In addition
to this, the Due Process Model also imposes certain procedural and
evidentiary barriers that the prosecution is expected to successfully
overcome before a jury of the accused’s peers, can nd the accused
guilty.11
e phrase “criminal justice system,” as used above in the context
of the Due Process Model, compendiously refers to an investigative
the big-picture issues in the American criminal justice system was Herbert
Packer’s article on the Two Models of the Criminal Process—the Crime
Control Model and the Due Process Model.”); H P, T L
C S 150 (1968). For a critique of Packer, supra note 5, see
Kent Roach, Four Models of the Criminal Process, 89 J. C. L. C
671, 671 (1999).
7. Bruce Berner, supra note 6, at 599 (observing that, “[E]verything about the
Crime Control Model was designed to bring crime down and punish violators
at whatever cost, including convicting some unfortunate innocents. Conversely,
the Due Process Model was obsessed with absolute and continuing fairness
so that no innocent was ever wrongly convicted.”); Farkhanda Zia Mansoor,
Reassessing Packer in the light of International Human Rights Norms, 4 C.
P. I. L.J. 288, 288 (2005) (observing that, “According to Packer’s crime
control model, repressing of criminal conduct is viewed as the most important
function of the criminal process.”).
8. Packer, supra note 5.
9. H P, T L C S 160-61 (1968).
10. Packer, supra note 5, at 13-17.
11. Id.
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