Article 20(3): A Search and Seizure Under Warrant Is Not Testimonial Compulsion

For the petitioners. The searches were unreasonable: their buildings were invaded, their documents taken away and their business and reputation affected, so section 96(1), which authorised such searches, violated Article 19(1)(f) (para 2). A search to obtain documents for an investigation is a compulsory procuring of incriminating evidence from the accused himself. Article 20(3), liberally construed, covers evidence of whatever character compelled from a person who is or is likely to become an accused, and a forcible search and seizure stands on the same footing as a compelled production (para 4). They relied chiefly on Boyd v. United States and on Entick v. Carrington (paras 4, 12, 17), and argued that sections 94 and 96 of the Code, under which a warrant normally follows a summons that is not obeyed, make a search a substitute for compelled production (paras 20-21).

For the respondents. The judgment sets out no separate submissions for the respondents. It records that it was not disputed that Article 20(3), on its face, says nothing about searches and seizures (para 4), that no question was raised that the protection does not apply to corporations (para 10), and that there was some debate whether section 94 applies to an accused and involves compulsion (para 21).

Article 19(1)(f): a temporary interference

The challenge under Article 19(1)(f) raised no arguable case. A search by itself does not restrict the right to hold and enjoy property; a seizure does restrict possession, but only temporarily and for the limited purpose of investigation. Statutory regulation of searches is necessary, and a reasonable restriction cannot per se be unconstitutional; damage caused by acts in excess of legal authority is for redress in other proceedings (para 2).

The reach of Article 20(3)

After tracing the privilege through English, American and Indian law (paras 5-9), the Court saw no reason to read the right very widely, nor to confine it to the bare literal words (para 10). Broadly, Article 20(3) is a guarantee against testimonial compulsion, not limited to the oral evidence of an accused in the witness box. To be a witness is to furnish evidence, through the lips or by producing a thing or a document; section 139 of the Evidence Act only regulates cross-examination. Every positive volitional act which furnishes evidence is testimony, and the protection may extend to testimony compelled before the trial. It is available to a person against whom a formal accusation has been levelled (para 11). The petitioners, named as accused in the First Information Report, had it against any compulsory process to produce documents likely to support their prosecution (para 12).

A search is not a compelled production

Boyd v. United States, examined closely, decided the converse question and established only that obtaining incriminating evidence by an illegal search and seizure violates the Fifth Amendment; Lord Camden's dictum in Entick v. Carrington referred only to an illegal search (paras 13-19). Assuming that section 94 applies to an accused and involves compulsion, sections 94 and 96(1) still do not make a search a compelled production: only the first of the three alternatives in section 96(1) depends on a summons, so on the petitioners' theory some searches under the other two would fall outside Article 20(3), an anomaly with no justification in principle (paras 20-21). The history of the search provisions points the same way (paras 22-23). A notice to produce is addressed to the party, and his compliance is a testimonial act; a search warrant is addressed to an officer, and the search and the seizure are acts of another to which the occupier must submit, not his testimonial acts (para 24).

No Fourth Amendment by construction

The Constitution has nothing corresponding to the Fourth Amendment that would let courts apply a test of unreasonableness to searches (para 19). A power of search and seizure is an overriding power of the State for the protection of social security, necessarily regulated by law. As the Constitution makers did not subject that regulation to constitutional limits by recognising a fundamental right to privacy analogous to the Fourth Amendment, the Court would not import one into a totally different fundamental right by strained construction. Searches of this kind need a Magistrate's warrant, a judicial function, and the scope for occasional error does not mean the guarantee is circumvented (para 25).