Misreading Section 54A

**Shubham Thakare

Abstract:

In Mukesh Singh v. State (NCT of Delhi) (2023), the Supreme Court held that Section 54A of the CrPC imposes a legal obligation on the accused to participate in a Test Identification Parade (TIP). However, in this piece, I argue that the judgment misreads both the text of the statute and established precedent, which treat TIPs as voluntary and allow only a limited adverse inference from refusal. It also overlooks the shift in Article 20(3) jurisprudence from a narrow evidentiary rule to a broader autonomy-based safeguard, as articulated in Nandini Satpathy and Selvi, and therefore fails to meaningfully engage with whether compelled participation in a TIP violates the constitutional protection against self-incrimination.

Introduction

The Test Identification Parade (“TIP”) holds a very specific and long-standing position in the Indian criminal justice system. It is an investigative device designed to narrow the gap between an unidentified perpetrator and their eventual identification in court. Its purpose is twofold: first, to test the memory and credibility of a witness who claims to have seen the accused, and second, to give the investigating agency a measure of confidence that they are pursuing the correct individual. The Supreme Court has observed that TIPs are not conducted for the benefit of the court. Rather, they are intended to assist the witness and the police in verifying whether the suspect is indeed the person seen at the scene of the crime.

Despite a rather clear conceptual basis, the TIP in practice is a precarious process. It is prone to error, external influence, and suggestion, due to which courts have built a cautious jurisprudence around it. For instance, A TIP is not regarded as substantive evidence. It is instead used to support/corroborate the testimony given by the witness under oath in court. Moreover, courts have consistently held that the failure to conduct a TIP in most instances is not, by itself, fatal to the prosecution. If the in-court identification is found to be credible and trustworthy, it can be accepted on its own. The need for a TIP thus depends on the facts of each case, including the nature and extent of the witness’s opportunity to observe the accused.

Given its low and fact-specific evidentiary value, an accused person cannot be compelled to participate in a TIP. Instead, the law permits courts to draw an adverse inference from an accused’s refusal to participate without sufficient cause. Even then, the refusal cannot be treated as conclusive to determine the guilt of the accused. It must be assessed in light of other available evidence.

However, this position was disrupted in 2023 by the Supreme Court’s decision in Mukesh Singh v. State (NCT of Delhi). In that case, the Court held that Section 54A of the Criminal Procedure Code, 1973 (“CrPC”) imposes a legal obligation on the accused to participate in a TIP. This is a serious misreading of the provision (which is now Section 54 of the Bhartiya Nyaya Suraksha Sanhita [“BNSS”]). It ignores the structure of existing jurisprudence and erodes the constitutional protections that underpin the investigation process. In the Sections that follow, I examine this issue through both a doctrinal analysis and a rights-based critique.

Misinterpreting Section 54A and Judicial Discretion

Before proceeding to critique the judgment, it is necessary to first outline the holding in Mukesh Singh and the factual context in which it arose. The case concerned a robbery and murder at a vegetable market in the early hours of the morning. The conviction of the appellant, Mukesh Singh, rested largely on the evidence of a single injured eyewitness, as the trial court had disbelieved the testimony of another [para 2]. A central point of dispute was that the appellant had refused to participate in a TIP, arguing that he had already been shown to the witnesses at the police station. The prosecution urged the court to draw an adverse inference from this refusal [para 20]. It was within this factual context that the two-judge bench, speaking through Justice J.B. Pardiwala, departed from established precedent to hold that participation in a TIP was a legal obligation [para 36]. It stated: “Thus, we are of the view that after the introduction of Section 54A in the CrPC referred to above, an accused is under an obligation to stand for an identification parade. An accused cannot resist subjecting himself to the TIP on the ground that he cannot be forced or coerced for the same.”

This statement is a clear break from previous jurisprudence. It recharacterizes the TIP as an obligatory legal requirement rather than a voluntary procedure whose refusal may carry evidentiary consequences. The Court drove this point home in the same paragraph [para 36] by holding that an accused “cannot decline or refuse to join the TIP.” The judgment identifies the introduction of Section 54A in the CrPC as the moment when this obligation was supposedly created. This conclusion, however, cannot be sustained on a close reading of the Section and its legislative history.

First, the Court’s entire reasoning rests on a misreading of Section 54A of the CrPC. The text of the provision does not impose a standalone obligation on the accused. It creates a court-mediated process that can be initiated only if the police request it, and only where the court is satisfied that such identification is necessary. The use of the term “may” in the Section confirms that the court retains discretion to determine whether a TIP is justified. The compulsion, if it arises, flows not from the statute but from a specific judicial order issued after application of the judicial mind. In Mukesh Singh, however, the Court brushed past this safeguard and replaced a discretion-based judicial process with nothing short of an inflexible statutory commandment. In the facts of the case itself, there was no indication that the police had approached a court under Section 54A. The TIP was arranged by the police suo moto, and the accused declined to participate without any judicial directive ever being sought.

Second, the legislative history of Section 54A highlights further problems with the Court’s interpretation. The section was introduced by the Code of Criminal Procedure (Amendment) Act, 2005. This act introduced a large number of amendments to the CrPC, and in the process, lawmakers seem to have overlooked this particular section. There was no discussion of Section 54A in the parliamentary debates of the amendment bill, nor was it mentioned in its statement of objects and reasons. Even the Law Commission, when consulted on the amendment, did not make any explicit comment on the provision. Likewise, there is no indication in any of these that the section was intended to make participation in TIPs compulsory.

In the absence of any guidance from legislative history, the text of the section itself must be the starting point of analysis. Its language is straightforward and indicates that the legislature did not intend to impose an absolute obligation. On this reading, Section 54A is best understood as regularising the identification process and bringing it under judicial oversight to check police misuse. Even if one were to assume some ambiguity in the provision, it is a longstanding principle of criminal law that any such doubt must be resolved in favour of the accused. Interpreting Section 54A as creating a legal obligation on the accused would therefore not only contradict the text and structure of the provision but would also run against this fundamental principle.

The Court’s misreading carries serious consequences. By creating a mandatory obligation, the judgment eliminates the judicial check designed to prevent misuse of the TIP process by the police. Moreover, if participation is no longer voluntary but is legally compelled, it may directly implicate the accused’s protection against self-incrimination. The next Section examines this issue in detail.

Violation of Article 20(3) Through Compelled TIP Participation

Mandating the TIP procedure runs the risk of violating the accused’s right against self-incrimination under Article 20(3) of the Constitution. Although the Court in Mukesh Singh does acknowledge and then dismiss this concern, its reasoning is superficial. It rests on an outdated view of Article 20(3) that ignores how later, more liberal interpretations have expanded the scope of the right in modern constitutional jurisprudence.

The court’s reasoning is built almost entirely on the Calcutta High Court’s decision in Peare Lal Show v. The State. In para 27 and para 28 of the judgment, the Court quotes at length from Peare Lal Show, adopting its logic that compelling an accused to attend a TIP does not infringe Article 20(3) because it does not involve a “positive volitional evidentiary act” by the accused. This reasoning reduces the accused to a passive object, akin to physical evidence, rather than treating them as a person whose bodily presence is being used to produce incriminating material. What is more troubling is that Peare Lal Show, a 1960 judgment, relied on the judgment in M.P. Sharma (decided in 1954). The latter did interpret “to be a witness” broadly, but it confined the understanding of “compulsion” under the Article almost entirely to direct physical coercion. In the years since, however, the Court has moved well beyond M.P. Sharma and has steadily expanded Article 20(3) to embrace a more nuanced and liberal understanding of compulsion.

For instance, in Nandini Satpathy, the Supreme Court extended Article 20(3) beyond the courtroom into the inherently coercive setting of the police station. It held that “compulsion” was not limited to physical force but also included psychological pressure and subtle tactics that eroded free will. Justice Krishna Iyer illustrated this with vivid examples, describing such pressures as “psychic torture” and “atmospheric pressure.” The focus of Article 20(3) thus shifted from overt acts to the broader environmental conditions that compromise voluntariness. Mukesh Singh sidesteps this shift entirely. It reproduces the logic of Peare Lal Show and M.P. Sharma without engaging with how the interpretation of Article 20(3) has evolved. The Court bases its decision on the idea that TIP participation is non-volitional, with the accused’s role being passive and therefore outside the scope of Article 20(3). However, in light of Nandini Satpathy, this understanding is untenable. During a TIP, the accused is placed in a coercive setting, held in police custody, is often without a legal counsel, and asked to stand in a lineup that may directly result in identification. Far from passive presence, this reflects compliance shaped by fear, pressure, and institutional control.

The Supreme Court’s reasoning in the more recent Selvi v State of Karnataka only reinforces this view. In this case, the Court held that the involuntary administration of techniques like narco-analysis and polygraph tests violated Article 20(3). The Court held that the involuntary use of techniques like narco-analysis and polygraph tests violated Article 20(3). Although these methods did not involve oral or written statements in the conventional sense, they were nonetheless testimonial because they compelled subjects to disclose personal knowledge. The key insight in Selvi was that Article 20(3) guards not only against forced speech but against any compelled mental disclosure. What matters is not the form of the evidence but whether a person is forced to reveal knowledge against their will. Seen in this light, a mandatory TIP, though outwardly a physical act, functions similarly. It obliges the accused to submit their body, posture, or appearance as material for identification, despite objection. This may not be speech, but it still extracts incriminating evidence by compelling the accused to serve as a source of personal knowledge. On Selvi’s logic, that might just be enough to implicate Article 20(3).

Even on its own reasoning, the judgment is unconvincing. It concedes that a Test Identification Parade holds only corroborative value; that it is not substantive evidence and that it cannot independently ground a conviction [para 49]. Given this limited evidentiary weight, the decision to potentially override a constitutional protection under Article 20(3) is difficult to justify. A possible counterargument to my position might be that analogous procedures such as fingerprinting and handwriting samples are permitted under Article 20(3). However, these are not conducted in the same testimonial setting as a TIP, which is designed to extract identification evidence by placing the accused with the witness in a very controlled setting. More importantly, these other procedures are backed by statutory authority. The procedure for collecting fingerprinting and handwriting samples is provided for under Section 349 of the BNSS and is governed by the Criminal Procedure (Identification) Act, 2022. TIPs, by contrast, lack statutory sanction and are governed only by state-level executive guidelines. As shown in the previous Section, the claim that Section 54A of the CrPC creates a legal obligation sufficient to justify compulsion is also weak. The Supreme Court itself in Rajesh v. State of Haryana has explicitly reaffirmed that neither the CrPC nor the Indian Evidence Act makes participation in a TIP mandatory [para 36.2]. In the absence of statutory backing, there is little justification for treating TIPs as exceptions to the protection against self-incrimination. Mukesh Singh, however, commits exactly this fault.

Conclusion

The Supreme Court’s decision in Mukesh Singh v. State (NCT of Delhi) introduces a troubling shift in how Test Identification Parades are understood in Indian criminal procedure. By treating Section 54A of the CrPC as creating a legal obligation to participate, the Court misreads a discretionary provision and departs from long-standing jurisprudence that treats TIPs as voluntary, with refusal attracting only a limited adverse inference. More critically, the judgment fails to consider whether compelled participation infringes the right against self-incrimination under Article 20(3), as redefined by the Court’s own decisions in Nandini Satpathy and Selvi.

Even if TIPs serve to bolster police confidence or corroborate in-court identification, this limited investigative function cannot justify overriding a fundamental right. If the judiciary is to compel an accused’s presence, it must first properly engage with the constitutional costs such compulsion entails.

**Shubham Thakare is a third-year B.A., LL.B. (Hons.) candidate at the National Law School of India University, Bengaluru. He has a keen interest in constitutional law and is currently based in Mumbai.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.