The art of confessing

In the Rajiv Gandhi assassination case, 17 out of the 26 accused confessed. The eventual acquittal of 19 of the accused indicates that the confessing persons were found to be innocent! Even in any ‘‘run-of-the-mill’’ murder, the police produce the accused before the media as self-confessed perpetrators of the crime.

Of course, the striking frequency of confessions to police officers in India far pre-dates a media-savvy world. In 1884, Justice Straight of the Allahabad high court observed: ‘‘It is incredible that the extraordinarily large number of confessions which come before us in the criminal cases disposed of by this court should have been voluntarily and freely made in every instance as represented.’’

Rebutting the view that the perpetrator is glad to purchase immediate ease by confessing, he added: ‘‘I may claim some knowledge and acquaintance with the ways and conduct of persons accused of crime, and I do not believe the ordinary inclination of their minds, which in this respect I take to be pretty much the same with humanity all the world over, is to make any admission of guilt.’’

In fact, confessions to police officers were admissible in England when the Indian Evidence Act prohibiting confessions to police officers from being admissible was enacted in 1872. The basis for the recent Justice Malimath committee recommendation advocating making confessions to police officers admissible as evidence is not clear.

However, a look at the first report of the Indian Law Commissioners based on evidence taken in 1852 and 1853 makes interesting reading: ‘‘A police officer, on receiving intimation of the occurrence of a dacoity, endeavours to secure himself by getting up a case against parties whose circumstances or characters are such as are likely to obtain credit for an accusation of the kind against them. This is not infrequently done by extorting or fabricating false confessions, and, when this step is once taken, there is of course impunity for the real offenders, and a great encouragement to crime.’’

Little seems to have changed, despite Independence and the enshrinement of the right to life and liberty in the Constitution. In a case of theft, torture of the domestic servant is the norm. In every case the primary object towards which the police direct their attention and energies is to secure a confession. In the meantime, while the police have been occupying themselves in getting the confession, many of the traces of the crime, which if at once followed up would have produced valuable proof, disappear. The confession procured is invariably retracted and is positively worthless as proof. This is the single largest factor for the low rate of conviction.

In fact, laws like TADA which made confessions to police officers admissible as evidence led to even shoddier investigations. The police, instead of searching out clues to the evidence from independent sources and collecting extraneous proof, followed the easier way and booked totally ordinary crimes under such a law and obtained confessions.

The police, instead of working ‘‘up’’ to the confession, work ‘‘down’’ from the confession — with the result that beyond the confession there is no evidence of guilt, leading to an abysmal conviction rate of 1.11 per cent under TADA.

In England, confession made to the police even in custody is admissible, provided there was no promise or threat used. In India confessions to police officers are totally barred. However, confession to a magistrate, even from police custody, is admissible as evidence. Given the alarming proportions of custodial torture and deaths in the country, perhaps rather than the Malimath way of making confession to police admissible, it may be better to go down the path of informing the accused of the right to say nothing and to consult counsel even during interrogation.