This article is authored by Yash S. Sinha, an advocate at Delhi. This article contemplates the evidentiary value of voice sampling with respect to mental privacy and the bar on self-incrimination.

Abstract

The Indian judiciary struggled with the admissibility of compelled voice sampling for long, but with an evident inclination towards permitting it. Eventually, the said bias came to be consolidated in 2019. Prosecution under various criminal laws have since relied heavily on this mode of evidence, notably in the 2020-21 period. Other common law jurisdictions, with minor exceptions, have observed a similar trajectory. All these cases share the same, albeit unarticulated, premise: the act of submitting one’s voice-sample for evidentiary appreciation cannot possibly be ‘testimonial’. In parallel and quite contrarily, India witnessed expanding standards on the self-incriminatory bar and mental privacy. A synthesised ratio of the latter set of cases appears to staunchly oppose compelled voice-sampling. Furthermore, science suggests that voice-samples are heavily communicative of personal information. Hence, they must become self-incriminatory upon compulsory extraction. Significantly, Indian decisions on self-incrimination and privacy are aligned with this overwhelming scientific opposition. They also seem to have imported standards from the better common law judgments on voice-sampling. Lastly and resultantly, that set of ratios better captures the import of Article 20(3). In essence, the judicial position emanating from those posed a bar on the events of 2019-21. Testing the admissibility of mandated voice-sampling in light of the bar erected by these two domains of law is, therefore, an exercise in frivolity.