Report No. 69

Chapter 70

Incriminating Questions

Section 132

I. Introductory

70.1. Section 132 deals with the important subject of self-incriminating questions. While the subject of incriminating documents was dealt with in the latter half of section 130, incriminating questions are governed by section 132, where the questions relate to a matter not relevant to the matters in issu.- there is a separate provision in section 148 intended for incriminating questions intended to impeach the credit of a witness. But questions relevant to the matters in issue are governed by section 132.

A witness, it provides, shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose such witness to a penalty or forfeiture of any kind. This is subject to a proviso whereunder no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except in a prosecution for giving false evidence by such answer.

Both in practice and in theory, it is the proviso which is of importance, since it now takes the place of the positive protection that was available at common law in respect of incriminating questions. The protection is taken away by the main paragraph. The proviso really confers an immunity from subsequent prosecution, and not a present "privilege" to refuse to answer. However, for the sake of convenience, we shall refer to it as a privilege.

70.2. Fundamental value represented by the privilege.-

The privilege against self-incrimination has been said to represent many fundamental values and aspirations. It is "an expression of the moral striving of the community a reflection of our common conscience."1 That is why it is regarded as a fundamental part of the Constitutional fabric of the U.S.A. despite the fact that "the law and the lawyers have never made up their minds just what it is supposed to do or just whom it is intended to protect"2.

In the U.S.A. the constitutional privilege against self-incrimination has two primary interrelated facets: The Government may not use compulsion to elicit self-incriminating statements,3 and the government cannot make use of statements so elicited.

1. Malloy v. Mogan, 378 US 9: 84 S Ct 1494, n. 7, quoting Griswold The Fifth Amendment Today, (1955), p. 73.

2. Kalven Invoking the Fifth Amendment-Some legal and Impractical Consideration, 9 Bull Atomic Sci 181, 182.

3. See e.g., Counselman v. Hitchcock, 142 US 547: 12 S Ct 195.

70.3. Common law.-

It should be noted that the position at common law is different from that under the section, inasmuch as the privilege is to refuse to answer the questions, and the rule at common law is not merely concerned with immunity from prosecution.

70.4. History.-

A similar privilege was formerly recognised in India before the Act of 1855. It would also be of interest to mention that one of the earliest English cases relating to the privilege against self-incrimination had a factual connection with India. In that case1, the defendant refused to "discover" certain information in the proceedings in an English court, on the ground that it might subject him to punishment in the courts of another country (India). The court unanimously held that the privilege against self-incrimination precluded a witness in an English court from being compelled to give testimony which could be used to convict him in the courts of another jurisdiction.

1. East India Company v. Campbell, (1749) 27 English Reports 1010, cited in Murphy v. Waterfront, Commission of New York, (1964) 12 Lawyers Edn. 2d 678, 683.

70.5. The privilege available at common law, was, in India, withdrawn by section 32 of Evidence Act, 2 of 1855, which is re-enacted in present section 132. The law in India thus denies to the witness a protection which was recognised by English law. But protection of a different nature is extended to the witness, who is now indemnified against a future criminal prosecution, except where he has perjured himself. The Legislature in India thought that the existence of the privilege "in some cases tended to bring about a failure of justice, for, the allowance of the excuse, when the matter to which the question related was in the knowledge solely of the witness, deprived the Court of the information which was essential to its arriving at a right decision1."

1. Queen v. Gopal Dass, (1878-1881) ILR 3 Mad 271 (279, 280) (FB) (per Turner, C.J.).

70.6. To put the matter in a different form, the rule in section 132 secures to the cause of justice the benefit of the answer of the witness and, at the same time, secures to the witness the benefit of the common law rule (that no one shall be compelled to criminate himself), by affording protection to the witness when (in future) a criminal proceeding is instituted against him.

II. Immunity

70.7. History of immunity.-

This protection is a qualified one-immunity for the future. It may be stated that immunity as a substitute for the privilege has also a history. Soon after the privilege against compulsory self-incrimination became firmly established in law in England, it was recognised that the privilege did not apply when immunity, or "indemnity" in the English usage had been granted.1 Parliament for example, encated2 an immunity statue in 1710: directed against illegal gambling, 9 Anne., C. 14, sections.-4 (1710), which became the model3 for an identical immunity statute enacted in 1774 by the Colonial Legislature of New York, Law of March 9, 1774, C. 1651, 5 Colonial Laws of New York 621, 623 (1894).

These statutes4 provided that the loser could sue the winner, who was compelled to answer the losser's charges. After the winner responded and returned his ill-gotten gains, he was 'acquitted indemnified (immunized) and discharged from any further or other punishment. Forfeiture or penalty, which he may have incurred by the playing for, and winning such Money."5

1. See L. Levy Origins of the Fifth Amendment, (1968) 328 (495), cited in Kastigar v. U.S., (1972) 32 Lawyer's Edn. 2d 212.

2. Kastigar v. United States, (1972) 32 Lawyer's Edn. 2d 212.

3. Kastigar v. United States, (1972) 32 Lawyer's Edn. 2d 212.

4. Kastigar'v. United States, (1972) 32 Laywers' Edn. 2d 212.

5. 9 Anne, c 14, section 4 (1710): Law of March 9, 1774, C. 1651, 5 Colonial Laws of New York 621 (623) (1894).

70.8. Immunity statutes are quite common in the united States, and have been the subject matter of numerous controversies raising the question how far they satisfy the constitutional privilege against self-incrimination. We need not go into details of this constitutional question, but, in general, where the immunity is total, the privilege is not violated by the legislation that substitutes the immunity for the privilege.

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