I do not know what should be the incentive behind doing moots but one thing is conclusively clear that the amount of legal learning one can get is unmatched. Since last year after my first moot court experience I have been feeling the urge of writing a small post on mooting.
So far I have seen two national moot court competitions and therefore I am not a senior counsel to talk about mooting but would like to just mention what and how much work I did for both the moots. My first moot was KLA Constitution Law moot court competition. Problem was based on the constitutional validity of Narco Analysis. Moot concluded prior to the Supreme Court deciding Selvi v State of Karnataka. I was dealing with the issue of Article 20(3) of the Constitution and to my help from Petitioner side there were quite a few erroneous judgments passed by various High Courts of India. After preliminary research only I could figure out logical inconsistency in all those judgments and hence I was left on my own without any Indian authority on the subject.
To start with the Petitioner side I had Krishna Iyer J. in Nandini Satpathy with myself and his erudite illustration of the interface between circumstantial evidence and article 20(3). In para 58 of the aforementioned Judgment Iyer J says “In Hoffman v. United States (341 US 479) the Supreme Court of the United States considered the scope of the privilege against self-incriminations and held that it would extend not only to answers that would in themselves support a conviction but likewise embrace those which would furnish a link in the chain of evidence needed to prosecute the claimant”. All High Courts validating Narco Analysis said that it can be used as an investigating tool. Significance of the observation made by Justice Iyer is in the fact that Narco Analysis cannot be used as an investigating tool. This proposition is further support by Seervai in his book. There were some more issues involved with the issue of Article 20(3) but I would avoid all of them for simplicity. Petitioner side memo was not a challenge because there was hardly any article or authority supporting constitutional validity of Narco Analysis. On the other hand it was draconian task for me to find authorities or more precisely logic to prove validity of Narco Analysis. It already took me considerable number of days in realizing that there is a snap in the Respondent side argument. I will talk about the Respondent memo in a while.
One of the issues inter alia was to prove that Petitioner has reached such a stage in the criminal proceeding that he can claim protection of Article 20(3). From Petitioner side it was easy to prove that though no FIR has been filed against the Petitioner nor he is charge sheeted still he can claim protection of self-incrimination clause. This issue was in fact more one-sided than the issue of Narco Analysis. At this juncture I would like to point out that in any moot if a particular sub-issue is one sided it is always better to not counter that issue from the other side. This is one common mistake I have seen being committed by many teams. From the Respondent side I did not challenge the eligibility (maintainability) of the Petition.
In effect on the Respondent side I was left with one issue which in turn means that I had to find sufficient number of reasoning/substance which can be spoken for at least 15 mins. I made many futile valiant attempts to justify Narco Analysis. I consulted many popular seniors on campus to melt the ice but none could help me. I wandered in the campus for at least five days without any clue. Finally something popular helped me. It was Wigmore on evidence and his critique on self-incrimination. In his voluminous book he refers a US case wherein an accused was informed by investigating officers about lie detector machine and its capacity to extract truth. He was told that if he does not tell the truth, machine will extract it. In fear of this he confessed. Accused challenged his confession as violative of Fifth Amendment. Court rejected his contention stating that his confession was not inspired by fear of the machine but fear of its capacity to extract truth and thus fear psychosis is fear of truth. In my moot problem also Petitioner challenged his future subjection to Narco Analysis and I argued that his unwillingness to undergo Narco Analysis is nothing but his fear of speaking truth. The Supreme Court in Selvi has not discussed the issue of fear psychosis at all and thus I am not sure how much the argument of fear psychosis is correct.
Anyways it was a scintillating argument and I managed to make a mark with this in almost all the rounds in which we were Respondent. Apart from this I also tried to highlight genesis of doctrine of privilege and contended that history of doctrine of self-incrimination suggest that exclusionary rule should not be extended to exclude scientific techniques of investigation. Privilege available to an accused should not be stretched too much. Amidst all from the Respondent side I was still left with one impenetrable issue of the Right to Silence. Under article 20(3) no accused can be compelled to unlock his lips, which means criminal prosecution does not require his active participation. His right to silence is absolute and under Indian laws there is no scope for any exception to it. In order to address this problem I cited less authoritative book on Constitution Law by L M Singhvi. Constitution of India, 2nd ed, L M Singhvi, page 906, also at page no 907 he says that “however, the trait of concept of absolute right of silence understood and conceived a century ago does not appear to be relevant in the changed crime scenario.”
Well I was not satisfied with my argument on Right to Silence but I knew that for the purpose of moot this is sufficient. With a stroke of luck I won the moot and also received Best Student Advocate award.
