The Telegraph
Wednesday , January 2 , 2013
Since 1st March, 1999
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Maharashtra’s leading public prosecutor Ujwal Nikam is busy preparing a watertight case against Zabiuddin Ansari alias Abu Jundal, one of the alleged masterminds of the 26/11 Mumbai terror attacks. Nikam hopes that he will get a conviction in the case as he did against Ajmal Kasab.

“We have enough evidence against him. It’s a matter of convincing the trial court that Jundal was one of the main handlers of the terrorists when the attack was taking place,” Nikam says.

A forensic laboratory in Maharashtra, recently confirmed that the voice of the person directing the terrorists over satellite phone on 26/11 matches with that of Jundal, but Nikam says that he will not base his arguments on the report of the laboratory alone.

“Courts in India haven’t been very consistent when it comes to recorded conversations and on asking alleged criminals to give their voice samples. The recorded conversations and lab reports can at best be presented as one of the pieces of evidence. The court may or may not accept them,” Nikam says.

In many other countries, however, evidence of a voice match may often lead to a conviction. For instance, in the US, Rajat Gupta, former managing director of management consultancy McKinsey & Company was found guilty of passing on sensitive boardroom information to a friend over the phone on the basis of a taped conversation.

Indian courts, on the other hand, have been indecisive in the matter of voice samples. In a recent hearing, a two-judge bench of the Supreme Court was divided on asking an accused to give his voice sample. While Justice Aftab Alam was of the opinion that an accused cannot be forced to give his or her voice sample, Justice Ranjana Prakash Desai felt that the courts could resort to “purposive interpretation” of the laws and ask the alleged criminal to give voice samples.

The Supreme Court was hearing an appeal against an Allahabad High Court order which had directed a person charged in a criminal case to give his voice sample.

However, both judges were of the opinion that it’s probably time the government amended the law and made a provision to order an accused to give a voice sample. Article 20(3) of the Constitution states, “No person accused of any offence shall be compelled to be a witness against himself.” And presenting a voice sample, defence lawyers often argue, would amount to a violation of this provision of the Constitution.

Pakistan has a similar law on voice samples. In fact, Pakistani interior minister Rehman Malik, while addressing a meeting hosted by the Supreme Court of India’s Bar Association recently, said that in his country voice samples cannot be taken unless the accused himself gives permission for it.

But the courts in India have, on occasion, asked the police to collect voice samples from alleged criminals interpreting various provisions of such laws as the Prisoners Act and Criminal Procedure Code (CrPC). However, it is at the appellate stage that these cases have faced problems.

Some legal experts feel that taking voice samples is a violation of the law. Says Supreme Court lawyer Siddhartha Dave, “There is no provision whatsoever under any Indian law that says the police should approach a court asking it to direct an accused person to give his voice sample or that a magistrate should consider such a request.”

But some magistrates have used Section 53 of the CrPC, which is on the “examination of the accused by a medical practitioner at the request of police officer” to rule on voice samples. According to sub section (1) of Section 53, a police officer can approach a medical professional “to make all such examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.”

“Examination” under this section includes the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques, including DNA profiling. The law was amended in 2005 to include DNA and other tests, but the government left voice, brain mapping and other modern investigative techniques outside its purview.

“In the absence of a clear and exhaustive definition, purposive interpretation is the only way before the courts. Intercepted phone calls of criminals could play an important role in getting them convicted if they are proved beyond doubt,” says Pinky Anand, Supreme Court lawyer.

Back in 1980, the Law Commission of India in its 87th report asked the government to change the laws related to the collection of voice samples. The Commission said that by speaking and giving the voice sample, the accused would be giving “identification data” and would not be subjected to any “testimonial compulsion”.

The Commission also noted that the constitutional privilege against self-incrimination did not arise in such cases as the person would be merely giving a sample and not talking about the crime itself.

But experts say that it is not as simple as that. “More often than not, the police ask the accused to repeat the same stuff that they have purportedly recorded. That is almost self-incrimination,” says V.K. Ohri, a Delhi-based criminal lawyer.

Ohri adds that merely making a law on voice sample alone will not do. “Most of the conversations that the law enforcement agencies record are illegal. Many of them haven’t been done after taking the permission of the higher authorities. Also, the government has to make it very clear that evidence related to voice can be used only in cases of national importance and others. Otherwise the police will start presenting phone conversations in all types of cases,” he says.

Of course, there are other problems concerning voice samples. For instance, lab reports on phone conversations are not 100 per cent accurate. Dave cites the case of the CD containing alleged phone conversations among senior lawyer Shanti Bhushan, Mulayam Singh and Amar Singh. While one laboratory found the CD’s content to be accurate, another lab found that it was doctored.

“The police can fabricate the evidence to put pressure on the accused. So all aspects of the issue should be considered before making any changes to the law,” says Dave. He also stresses that voice recordings should not be used as prime pieces of evidence in a trial.

“Rajat Gupta was convicted on the basis of one phone conversation. That’s it. The prosecutors had nothing beyond that. That, in my opinion, is not justice. We don’t want that to happen in India,” Dave says.

However, many other legal experts believe that the law should make use of the technology available to convict criminals. “The law has to keep pace with advancements in technology,” says Nikam. “Criminals shouldn’t go scot-free because of a lacuna in the law.”

The best way forward would, of course, be to strike a balance so that voice samples would serve the purpose of criminal jurisprudence without compromising an individual’s rights. The Law Commission had also suggested that in the matter of voice samples, the government must strike a “proper balance between social needs and individual privacy,” and had warned that an all embracing and pervasive provision might “unintentionally have the effect of authorising many practices which may not be desirable”.

It remains to be seen if the government, already under fire for not ensuring quicker convictions, takes any steps to legally sanction obtaining voice samples from alleged criminals.