guarantee against self-incrimination is not offended by a search and seizure

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO 494 OF 2012

JUSTICE K S PUTTASWAMY (RETD.), 

AND ANR. ..Petitioners 

VERSUS

UNION OF INDIA AND ORS.

Dr D Y CHANDRACHUD, J

B Decision in M P Sharma

8 An investigation was ordered by the Union government under the Companies 

Act into the affairs of a company which was in liquidation on the ground that it had 

made an organized attempt to embezzle its funds and to conceal the true state of its 

affairs from the share-holders and on the allegation that the company had indulged in 

fraudulent transactions and falsified its records. Offences were registered and search 

warrants were issued during the course of which, records were seized. The challenge 

was that the searches violated the fundamental rights of the petitioners under Article 

19(1)(f) and Article 20(3) of the Constitution. The former challenge was rejected. The 

question which this Court addressed was whether there was a contravention of Article 

20(3). Article 20(3) mandates that no person accused of an offence shall be compelled 

to be a witness against himself. Reliance was placed on a judgment of the US Supreme Court ( Boyd v. United States, 116 US 616 (1886) ) holding that obtaining incriminating evidence by an illegal search and seizure violates the Fourth and Fifth Amendments of the American Constitution. While tracing the history of Indian legislation, this Court observed that provisions for search were contained in successive enactments of the Criminal Procedure Code. Justice Jagannadhadas, speaking for the Bench, held that a search or seizure does not infringe the constitutional right guaranteed by Article 20(3) of the Constitution:

“…there is no basis in the Indian law for the assumption that a search 

or seizure of a thing or document is in itself to be treated as compelled 

production of the same. Indeed a little consideration will show that the 

two are essentially different matters for the purpose relevant to the 

present discussion. A notice to produce is addressed to the party 

concerned and his production in compliance therewith constitutes a 

testimonial act by him within the meaning of Article 20(3) as above 

explained. But a search warrant is addressed to an officer of the 

Government, generally a police officer. Neither the search nor the 

seizure are acts of the occupier of the searched premises. They are 

acts of another to which he is obliged to submit and are, therefore, not 

his testimonial acts in any sense.”10

9 Having held that the guarantee against self-incrimination is not offended by a 

search and seizure, the Court observed that :

“A power of search and seizure is in any system of jurisprudence 

an overriding power of the State for the protection of social security 

and that power is necessarily regulated by law. When the 

Constitution makers have thought fit not to subject such 

regulation to constitutional limitations by recognition of a 

fundamental right to privacy, analogous to the Fourth 

Amendment, we have no justification to import it, into a totally 

different fundamental right, by some process of strained 

construction. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.”11

 (emphasis supplied)

10 These observations – to be more precise in one sentence - indicating that the 

Constitution makers did not subject the regulation by law of the power of search and 

seizure to a fundamental right of privacy, similar to the Fourth amendment of the US 

Constitution, have been pressed in aid to question the existence of a protected right 

to privacy under our Constitution.