Dr.

Ram Manohar Lohiya National

Law University, Lucknow

“Right to silence and self incrimination

under Indian constitution”

Vijay Kumar
09919911185 (vijay.rmlnlu@gmail.com)
Dr. Ram Manohar Lohiya National Law University,
Lucknow
 The right of silence, like all other good things, may be loved unwisely, may be pursued
too keenly, may cost too much
- Adapted from Pearse v Pearse1

INTRODUCTION
Free expression is the fundamental fountain-head of democracy. The right of free expression
does not however confer right to disparage others right of person and reputation as such the
right Of free expression is subject to reasonable restrictions. Bonafide reprimand of any
system or institution including the judiciary cannot be objected on any pretext, be it under the
conferred constitutional power or the statutory Court law. The freedom of speech bestowed
under the constitution and the independence of the judiciary are the two essential and most
important constitutes of democracy in a country. Reconciling these two competing public
interest issues and maintaining a balance, presents a challenge to any given democratic set-
up. Healthy and constructive criticisms are the necessary feature for the development of the
democracy. The Apex court as the guardian of the Constitution must vigilantly protect free
speech even against judicial resentment.

The ‘right to silence’ is a principle of common law and it means that normally courts or
tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors,
that a suspect or an accused is guilty merely because he has refused to respond to questions
put to him by the police or by the Court.

The origins of right to silence may not be exactly clear but the right goes back to the Middle
Ages in England. During the 16th century, the English Courts of Star Chamber and High
Commission developed the practice of compelling suspects to take an oath known as the “ex-
officio oath” and, the accused had to answer questions, without even a formal charge, put by
the judge and the prosecutor. If a person refused to take oath, he could be tortured. These Star
Chambers and Commissions were later abolished. The right to silence is based on the
principle ‘nemo debet prodere ipsum’, the privilege against self-incrimination.

Wigmore regarded the principle of silence as having crept into the common law almost by
accident in the mid-seventeenth century following the collapse of the political courts of Star

1
63 (1846) Eng Rep 950, 957 (on truth)
Chamber and Commissions. Once the right was established, the right of the accused was
extended to witnesses and to allegations of crime and to civil litigation. Wood and Crawford
have argued that the device can be attributed to the widespread hostility aroused by
compulsory testimony upon oath. They maintain that the right emerged in England as a basic
democratic right established by public agitation long before it became the subject of judicial
consideration. The second theory, offered by Maguire and Levy, traces the ‘privilege against
self-incrimination’ to the English common law criminal procedure in the middle ages. Both
Levy and Maguire agree with Wigmore that the right was extended later to witnesses in a
criminal case and to allegations of crime made in civil proceedings2.

Mc Nair has a third view that the above authors have put “the cart before the horse”. The
privilege originated in Roman Common Law, applying first to witnesses and to allegations of
crime in civil proceedings before it was extended to the accused in criminal law. The
Criminal Law Revision Committee (UK) said in 1972 in its 11th Report that the principle did
not emerge until the 19th century3.

ORIGIN OF RIGHT TO SILENCE

The origins of right to silence may not be exactly clear but the right goes back to the middle
ages in England. During the 16th century, the English Courts of Star Chamber and High
Commission developed the practice of compelling suspects to take an oath known as the “ex-
officio oath” and, the accused had to answer questions, without even a formal charge, put by
the judge and the prosecutor. If a person refused to take oath, he could be tortured. These Star
Chambers and Commissions were later abolished. The right to silence is based on the
principle ‘nemo debet prodere ipsum’, the privilege against self-incrimination.

Wigmore regarded the principle of silence as having crept into the common law almost by
accident in the mid-seventeenth century following the collapse of the political courts of Star
Chamber and Commissions. Once the right was established, the right of the accused was
extended to witnesses and to allegations of crime and to civil litigation. Wood and Crawford
have argued that the device can be attributed to the widespread hostility aroused by
compulsory testimony upon oath. They maintain that the right emerged in England as a basic

2
Law commission of India “Article 20 (3) of the constitution of India and the right to silence ”, Report no.108,
may, 2002, New Delhi.
3
The Right to Silence: A Review of the Current Debate) (1990) Vol. 53 Mod L Rev p. 709).
democratic right established by public agitation long before it became the subject of judicial
consideration.

The second theory, offered by Maguire and Levy, traces the ‘privilege against self-
incrimination’ to the English common law criminal procedure in the middle ages. Both Levy
and Maguire agree with Wigmore that the right was extended later to witnesses in a criminal
case and to allegations of crime made in civil proceedings. Mc Nair has a third view that the
above authors have put “the cart before the horse”. The privilege originated in Roman
Common Law, applying first to witnesses and to allegations of crime in civil proceedings
before it was extended to the accused in criminal law. The Criminal Law Revision
Committee (UK) said in 1972 in its 11th Report that the principle did not emerge until the
19th century4.

‘The 16th and 17th centuries show that the privilege against self-incrimination was closely
related to the medieval version, which was involved in the protection against religious
intolerance. In England, prerogative courts such as the Star Chamber and the High
Commission and ecclesiastical courts used the oath ex-officio. In this procedure, any person
on the street could be picked up, asked to take oath and answer questions for finding out if
they were in disagreement on questions of theology with the Crown. The Privy Council on a
motion from the House of Commons asked Coke and Chief Justice Popham when the oath
could properly be administered. They replied, “No Man…. shall be examined upon secret
thoughts of his Heart, or of his secret opinion”5: (see The Long Parliament abolished the Star
Chamber and High Commissions and forbade ecclesiastical courts to use the oath ex-officio6.

The right to silence has various facets. One is that the burden is on the State or rather the
prosecution to prove that the accused is guilty. Another is that an accused is presumed to be
innocent till he is proved to be guilty. A third is the right of the accused against self
incrimination, namely, the right to be silent and that he cannot be compelled to incriminate

4
The Right to Silence: A Review of the Current Debate) (1990) Vol. 53 Mod L Rev p. 709).
5
“An Oath before an Ecclesiastical Judge ex-Officio”, 12 Coke’s Rep 26 (3rd Ed, 1727.

6
see “Origins of the Privilege against Self-incrimination”: by R.H. Helmhotz 65. New York Univ. Law Rev 962
(1990); Michael R.T. Mc Nair, “The Early Development of the Privilege against self-incrimination”: 10 Oxford
J. of Legal Studies, 66 (1990); Eben Moglen, Taking the Fiflt: Reconsidering the origins of the Constitutional
Privilege against Self Incrimination 92, Mich L. Rev. 1086 (1994). (quoted at pp 216-217 by Prof. Akhil Reed
Amar in his ‘The Constitution and Criminal Procedure, First Principles’ 1999, Yale University Press).
himself. There are also exceptions to the rule. An accused can be compelled to submit to
investigation by allowing his photographs taken, voice recorded, his blood sample tested, his
hair or other bodily material used for DNA testing etc.

Some of the aspects relating to right to silence came to be included in the Universal
Declaration of Human Rights, 1948. Art. 11.1 thereof reads:

Everyone charged with a penal offence has the right to be presumed innocent until proved
guilty according to law in a public trial at which he has had all the guarantees necessary for
his defence.”

The International Covenant on Civil and Political Rights, 1966 to which India is a party states
in Art. 9.1 that none shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law; Art. 9.2 states that any one who is
arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him. Art. 11.3 refers to the right to be produced in
a Court promptly and for a trial. Art. 14(3)(g) refers to various “minimum guarantees” and
states that everyone has a right:

“Art. 14(3)(g): Not to be compelled to testify against himself or to confess guilt.”

The European Convention for the Protection of Human Rights and Fundamental Freedoms
states in Art. 6(1) that every person charged has a right to a ‘fair’ trial and Art. 6(2) thereof
states:

“Art. 6(2) Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.”

In India, the right against self incrimination is incorporated in clause (3) of Art. 20 and after
Maneka Gandhi’s7 case:, Art. 21 requires a fair, just and equitable procedure to be followed
in criminal cases.

It is initially necessary to bear in mind the difference between burden of proving an issue
(known as the legal or persuasive burden of proof), a burden which never shifts and the
burden of adducing credible evidence (known as evidential burden), which can go on shifting

7
(1978 (1) SCC 248)
during the trial. Several modern statutes, while maintaining the burden of proving a pleading
or charge, alter the evidential burden.

For example, in a civil case, a plaintiff may have to prove that the defendant, having
borrowed money, is indebted to him but under Sec. 118 of the Negotiable Instruments Act,
the initial evidential burden is shifted to the defendant if he had executed a negotiable
instrument in favour of the plaintiff. This method of shifting evidential burden has been
resorted to in criminal cases too particularly where an accused is found in possession of
certain property which the law declares it illegal to possess, such as drugs or stolen property
etc. It is perfectly open to a legislature to shift the evidential burden

In legislative and constitutional8 history as a forbearer of procedural fairness. There is

significant debate around the history of this area of law. A traditional view was that the right
not to incriminate oneself arose out of the abolition of the Star Chamber in England in the
17th Century9. The High Court has tended to follow this view of the history of the law, noting
that the privilege is now embodied in Article 14(3)(g) of the International Covenant on Civil
and Political Rights10.

Some commentators challenge this view, claiming that any rules resembling the modern day
privilege against self-incrimination, or immunities making up an accused’s right to silence,
both predated Star Chamber11 and were only able to fully develop in its modern form during
the 19th Century. This latter argument because:

“in the seventeenth century, an accused was not allowed legal representation in a criminal
trial, but was obliged to conduct his or her own defence. The right of an accused to call
witnesses to give sworn testimony on his or her behalf was also significantly restricted…

8
http://www.criminalcle.net.au/attachments/Right_To_Silence_paper.pdf (assessed on 24/10/2012)
9
The privilege aginst self-incrimination is part of our legal heritage where it became rooted as a response to the
horrors of the Star Chamber. (See Quinn v. United States (1955 349 US 155 (99 LawEd 964).). In the United
States it is entrenched as part of the Federal Bill of Rights. In Australia it is part of the common law of human
rights. The privilege is so pervasive and applicable in so many areas that, like natural justice, it has generally
been considered unnecessary to express the privilege in statutes which require persons to answer questions.
Murphy J in Hammond v Commonwealth [1982] HCA 42; (1982) 152 CLR 188 (6 August 1982). See also
Sorby and Another v The Commonwealth of Australia and Others (1983) 152 CLR 281 per Brennan J at 317
10
Environment Protection Authority v Caltex Refining Co Pty Ltd; McHugh J at 543 and Mason CJ and Toohey
J at 498-499
11
“This early influence of the ius commune in the English legal history, predating the Court of High
Commission and The Star Chamber, is said to undermine the traditional theory of the privilege” referring to
Langbein JH, “The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth
Centuries” in Hemholz RH et al The Privilege against Self-Incrimination: Its Origins and Development (1997) –
referenced by the 2004 Report (No 59) of the Queensland Law Reform Commission – The Abrogation of the
Privilege Against Self-Incrimination, p 9.
Defence counsel were not generally permitted to examine witnesses until the middle of the
eighteenth century or to address the jury until the beginning of the nineteenth century. It
argues that it was these changes to common law criminal procedure, together with
theadoption of the presumption of innocence and the requirement of proof beyond reasonable
doubt, and the development of rules of criminal evidence, that were the real driving force
behind the emergence of the privilege against self incrimination”12

Although this “history war” would appear to have little relevance for a practitioner in the
lower courts of NSW in the 21st Century, it is probably fair to assume that arguments that the
right to silence is a relatively recent invention will serve to bolster moves to reduce the
current protections then it may be viewed as a less of a fundamental right that is not to be
treated as sacrosanct13

DEFINITION OF RIGHT TO SILENCE

The right to silence said our constitutional court, like the presumption of innocence, is firmly
rooted in both our common law and statute. The common law principle is that no one can be
compelled to give evidence incriminating him, either before or during the trial14.

15
The Criminal Procedure Act prescribes that an accused shall not be called as a witness
except upon his own application. Our Constitution is more explicit16. It provides that
everyone who is arrested has the right to remain silent and to be informed of that Osman and
another v Attorney-General, Tvl 1998 4 SA 1224 (CC) right and of the consequences of not
remaining silent.

It further provides that every

Accused person has the right to a fair trial, which includes the right to be presumed innocent,
to remain silent, and not to testify during the proceedings and not to be compelled to give

12
2004 Report (No 59) of the Queensland Law Reform Commission – The Abrogation of the Privilege Against
Self-Incrimination, p 10-11.
13
“The origins of the right to silence and the privilege against self-incrimination are not entirely clear. They are
also controversial because – to put it crudely – the more ancient the right and the privilege are, the stronger the
case for their retention appears to be.” The Right to Silence: An Examination of the Issues Chapter 2 – The
Origins of the Right to Silence, 1998 Discussion Paper on The Right to Silence for the Victorian Parliament’s
Scrutiny of Acts and Regulations Committee.
14
R v Camane and others 1925 AD 570, 575
15
51 of 1977 sec 196(1)(a)
16
Act 108 of 1996 sec 35(1)3
self-incriminating evidence. Evidence obtained in a right and of the consequences of not
remaining silent17.

It further provides that every accused person has the right to a fair trial, which includes the
right to be presumed innocent, to remain silent, and not to testify during the proceedings and
not to be compelled to give self-incriminating evidence18.

Evidence obtained in a manner that violates these rights must be excluded if the admission
thereof would render the trial unfair or otherwise be detrimental to the administration of
justice19.

ACCORDING TO BLACK'S LAW DICTIONARY (USA)

SELF-INCRIMINATION: Acts or declarations either as testimony at trial or prior to trial by

which one implicates himself in a crime. The Fifth Amendment, U.S. Const. as well as
provisions in many state constitutions and laws, prohibit the government from requiring a
person to be a witness against himself involuntarily or to furnish evidence against himself.

BARRON'S LAW DICTIONARY (USA)

Self-Incrimination, Privilege Against the constitutional right of a person to refuse to answer

questions or otherwise give testimony against himself or herself which will subject him or her
to incrimination. This right under the Fifth Amendment (often called simply pleading the
fifth) is now applicable to the states through the due process clause of the Fourteenth
Amendment, 378 U.S. 1,8, and is applicable in any situation, civil or criminal where the state
attempts to compel incriminating testimony.

THE FIRST AMENDMENT, THE RIGHT NOT TO SPEAK

The First Amendment guarantees that "Congress shall make no law ... abridging the freedom
of speech or of the press . . . ." It has long protected speech, certain expressive acts and
individual thought and belief. The First Amendment, however, does not only protect speech
in its positive aspect. In West Virginia State Board of Education v. Barnette20, and later in

17
This is not a novel provision. It was one of the Judges Rules since 1931 These were administrative directions
for the police and not law. R v Kuzwayo 1949 3 SA 761 (A) 767
18
Sec 35(3)(h) and (j)
19
Sec 35(5)
20
319 U.S. 624 (1943).
Wooley v. Maynard21, the U.S. Supreme Court recognized that the First Amendment also
protects a "concomitant" negative free speech right, the right not to speak: "The right of
freedom of thought and of religion as guaranteed by the Constitution against State action
includes both the right to speak freely and the right to refrain from speaking at all.

....22, The Court's subsequent articulations of this negative right framed it as a "freedom not to
speak publicly, one which serves the same ultimate end as freedom of speech in its
affirmative aspect23" The first articulation of this negative First Amendment right heralded a
line of "right not to speak" cases that present their own set of conflicts in First Amendment
jurisprudence and implicate several of the theoretical bases of freedom of speech. Courts and
commentators have also recognized that the government can play an active role in expanding
free speech rights and in enabling the free speech principle that the Constitution establishes24.
This active role often takes the form of "access legislation," such as state-level free speech
provisions, which are often enacted to expand free speech rights further than the federal First
Amendment provision25. Litigants often invoke the right not to speak in opposition to these
access statutes, which are intended to encourage and facilitate speech. These access statutes,
despite a stated purpose of expanding some individuals' affirmative rights to speak freely,
often incidentally infringe on negative free speech rights in the same speech forum. Thus, an
access statute or a state level
First Amendment provision, meant to open speech forums and encourage debate, can
ultimately cause conflict between affirmative and negative free speech rights, by sustaining
one right at the price of infringing on the other.

21
430 U.S. 705 (1977).
22
Barnette, 319 U.S. at 645 (Murphy, J., concurring).
23
Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 11 (1986) (emphasis in original) (citing Harper
& Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985) (quoting Estate of Hemingway v. Random
House, Inc., 244 N.E.2d 250,255 (N.Y. 1968)).
24
OWEN M. Fiss, THE IRONY OF FREE SPEECH 17 (1996) (noting that "fostering full and open debate-
making certain that the public hears all that it should-[can be] a permissible end for the state");
25
Brennan, State Constitutions, supra note 7, at 491 (observing that "state constitutions ... are a font of
individual liberties, their protections often extending beyond those required by the Supreme Court's
interpretation of federal law").
 ARTICLE 20(3) PROTECTION AGAINST SELF INCRIMINATION AND
RIGHT TO SILENCE

The principle of protection against self-incrimination is a fundamental principle of the British

system of criminal jurisprudence. From there the principle find its place in all civilized legal
system following common law jurisprudence. It has been adopted by the American system by
the Fifth Amendment of the American Constitution, which provides that no person shall be
compelled in any case to be a witness against himself. Thus the protection in American
Constitution is available to all persons and in every proceeding, civil or criminal and the
Courts have given a very wide interpretation to the protection.

Under Indian law the principle have been given Constitutional status by incorporating it
under Article 20(3) of the Constitution. It says that

“ No person accused of any offence shall be compelled to be a witness against himself.”

But the main question arose that who is a accused person ?

WHO IS ACCUSED?

The expression “accused person” connotes a person against whom evidence is sought to be
led in a criminal proceeding. Thus an accused is a person whom an allegation has been made
that he has committed an offences or who is charge with an offence. It does not predicates a
condition of that person at the time of making the statement.

The expression “accused person” in section 24 of the Evidence Act includes a person who
subsequently becomes an accused, and that he need not have been accused of an offence
when he made the confession in question26.

The protection of Article 20 (3) of the constitution becomes available to a person as soon as
he is named as an accused either in a FIR made under section 154, of Cr.P.C or in complaint
institute against him court27

The protection given under Article 20(3) is in the nature of privilege to be exercised by a
person accused of any offence. Accused includes a suspect or a person against whom there

26
State of U. P v. Deoman upadhyaya AIR 1960 SC 1125
27
Narayanlal Bansilal v. Maneek Phiroz Mistry AIR 1961 SC29
are some oral or circumstantial evidence pointing towards guilt. Thus as per Constitutional
mandate, when a person is interrogated and during interrogation he perceives that he is being
suspected for commission of some offence or when he is treated as an accused or suspect by
the interrogating agency, he should have liberty to claim the privilege granted to him under
Article 20(3) of the Constitution.

The right to silence is also mention under Article 14 (g) of the ICCPR. Enjoins a person to
answer truthfully the questions put to him by an investigation officers, this constitutional
provision gives protection against self –incrimination.

The right to silence has been interpreted as essential features of fair trail within the meaning
of Article 6 of the European convention of Human Rights.

ACCUSED OF AN OFFENCE

The privilege under this clause is only available to an accused i.e., a person against whom a
formal accusation relating to the commission of an offence has been leveled which in the
normal course may result in the prosecution. It is however not necessary , to avail the
privilege, that the actual trial or enquiry should have commenced before the court or tribunal.
Thus a person against whom the FIR has been recorded by the police and investigation
ordered by the Magistrate can claim the benefit of the protection.

Even if his name is not mentioned in the FIR as an accused, it will not take him out of the
category.In America the right against self incrimination is not only available to accused but
alsoto thw witness. But Not Under Indian Laws.

But in Nandini satpathey Vs. P.L. dani28It was subsequently held that, the right extends to
witness and accused alike, that the expression 'accused of any offence’[9], must mean
formally accused in “praesenti not in future”, that it applies at every stage at which furnishing
of information and collection of materials takes place, that the privilege extends not only to
the deployment of the information obtained as evidence in a criminal prosecution, but to the
extraction of the information itself.

28
AIR 1978 SC 1025
In Narayan lal v. Maneek S. Mistry29 it must appear that a formal accusation has been made
against the party pleading the guarantee and that it relates to the commission of an offence
which in the normal course result in persecution. To claim the protect of Article-20(3) the
person must be an accused person either before or at time when he is compelled to give
evidence against himself and thus, a person cannot claim protection of Article 20(3).

COMPULSION TO BE A WITNESS-

The application of Narcoanalysis test involves the fundamental question pertaining to judicial
matters and also to Human Rights. The legal position of applying this technique as an
investigative aid raises genuine issues like encroachment of an individual’s rights, liberties
and freedom. In case of State Bombay v. Kathikalu it must be shown hat the accused was
compelled to make statement likely to be incriminative of himself. Compulsion means duress,
which includes threatening, beating or imprisonment of wife, parent or child of person. Thus
where the accused makes a confession without any inducement, threat or promise art 20(3)
does not apply.

In M.P Sharma v. Satish chandra30 the SC interpreted the phrase “to be a witness” very
widely so as to include the giving of finger impression specimen writing or thumbs
impression.

In state of Bombay v. Kathi Kalu31in this case the court held that the accused person cannot
take to have been compelled to be a witness against himself merely because he made a
statement which he was in police custody, without anything more.

In Kalawati v. H.P in this case the court said that for the applicability of the article 20 (3)
there must be compulsion to be witness. Article 20 (3) does not apply to class where there has
been no comp

Compulsion” resulting in his giving evidence “against himself”-

The right to silence has various facets. One is that the burden is on the State or rather the
prosecution to prove that the accused is guilty. Another is that an accused is presumed to be
innocent till he is proved to be guilty. A third is the right of the accused against self

29
AIR 1961 SC 29
30
AIR 1954 SC 300
31
AIR 1961 SC 1808.
incrimination, namely, the right to be silent and that he cannot be compelled to incriminate
himself. There are also exceptions to the rule. An accused can be compelled to submit to
investigation by allowing his photographs taken, voice recorded, his blood sample tested, his
hair or other bodily material used for DNA testing etc32.

In Vidya Verma v. Shiv Narain held that the protection under Article 20 (3) does not extent to
the proceeding other than criminal proceeding. The American constitution provide such
protection in any proceeding (civil or criminal) where the answer might incriminate him in
future criminal proceeding.

In Kalawati v. State of H.P33 -SC held that Article 20 (3) does not apply at all to a case where
the confession is made by an accused without any inducement, threat, or promise. Similarly
retraced confessions, along though they have very little probative value, are not repugnant to
this clause.

In V.S. Kuttan Pillai vs Ramakrishnan and Another34, the court held that, a general search
warrant may be issued to procure the document or thing and it can be recovered from any
person who may be ultimately found in possession of it and it was not known to the Court
that the person from whose possession it was found was in possession of it.

COMPULSION” RESULTING IN HIS GIVING EVIDENCE “AGAINST HIMSELF”-

The right to silence has various facets. One is that the burden is on the State or rather the
prosecution to prove that the accused is guilty. Another is that an accused is presumed to be
innocent till he is proved to be guilty. A third is the right of the accused against self
incrimination, namely, the right to be silent and that he cannot be compelled to incriminate
himself. There are also exceptions to the rule. An accused can be compelled to submit to
investigation by allowing his photographs taken, voice recorded, his blood sample tested, his
hair or other bodily material used for DNA testing etc.

CONCEPT OF INVIOLABLE RIGHTS OF SILENCE IN INDIA

The concept of inviolable right of silence as understood and practiced in our system appears
to have been over eulogized and trumpeted as a virtue and as indispensible essential feature

32
Prof. Kialash rail, the constitutional law of india, p-228-231, 7th edition, central law publication (2008)
33
AIR 1953 SC 131
34
AIR 1980 SC 185
of fair trail. Exclusion of confessional statements and other incriminating information given
by the accused during investigation under the grab of right of silence has made negative
impact on the society. In present legal structure the right to silence for the accused is ensure
as an essential part of due process from the stage of investigation.

The constitutional provisions under Article 20(3) ensure complete protection of accused
against self incrimination. The moment the person’s is considered as accused in the eyes of
law, he has no right to remain silent even during investigation without answering any
incrimination question.

Any statement made by the accused under section 24 of the evidence act to the police officers
is, made inadmissible. The only exceptional situation is found in section 27of the Act. During
the course of investigation on the voluntary statement of the accused any discovery of the
material objects if made, the prosecution is permitted to produce the discovered object in the
trail to be used against the accused to prove the nexus of the material object with the crime to
a very limited extent independently without the aid of rest of the confessional material in the
voluntary statement and the same is excluded as inadmissible35.

Section 13236 provides that when evidence is obtained by compelling a witness such evidence
shall not be used against him in any civil or criminal proceedings.

Section 31337 empowers the court to examine the accused but the accused is privileged not to
answer the question put to him. In Bibhuti Bhushan Das Gupta. V. State of W.B38 held the
object of questioning the accused person by the high court is to give him an opportunity of
explaining the circumstances that appears against him in the evidence.

Section 313(3)39 provides that the accused shall not render him self liable to punishment by
refusing to answer such question, or giving false answer to them. Thus there is no testimonial
compulsion and the accused is at liberty to answer the question put to him. There is no
violation of fundamental right under Article 20(3) of the constitution.

35
L.M. Singhvi, constitution of India, 2nd edition, vol-1, Modern Law Publication (2007) (page no. 898-923)
36
Section 132 of the Evidence Act.
37
Section 312 of the Cr.P.C
38
AIR 1969 SC 381
39
Supra note 30
The right against forced self-incrimination, widely known as the Right to Silence is enshrined
in the Code of Criminal Procedure (CrPC) and the Indian Constitution. In the CrPC, the
legislature has guarded a citizen’s right against self-incrimination. S.161 (2) of the Code of
Criminal Procedure states that “every person is bound to answer truthfully all questions, put
to him by [a police] officer, other than questions the answers to which would have a tendency
to expose that person to a criminal charge, penalty or forfeiture”. But where the accused
makes a confession without any inducement, threat or promise art 20(3) does not apply.

STATUS OF PROVISION IN DIFFERENT COUNTRIES

Right to silence in the English system

In English system was confronted with the rigorous rule of right of silence. In the system the
accused is obliged to answer all the material questions during the course of investigation and
the proceedings are tape recorded and video graphed and the said material is made admissible
in evidence.

U.S.A- The fifth amendment of the U.S. constitution provides that:-

“No person shall be compelled in any Criminal Case, to be a Witness against Himself”

By judicial Interpretation, the above provision has been given a very wide connotation. The
privilege against Self-Incrimination has been held to apply to witnesses as well as parties in
proceedings—criminal and civil. It covers documentary evidence and oral evidence, and
extends to all disclosures including answers which by themselves support a criminal
conviction or furnish a link in the chain of evidence needed for a conviction40.

BRITAIN- It is a fundamental principle of the Common Law that a person accused of any
offence shall not be compelled to discover documents or objects which incriminate himself.
No witness, whether party or stranger is, except in a few cases, compellable to answer any
question or to produce any document the tendency of which is to expose the witness (or the
spouse of the witness), to any criminal charge, penalty or forfeiture.

40
See also http://en.wikipedia.org/wiki/Right_to_silence (assessed on 24/10/2012)
The privilege is based on the policy of encouraging persons to come forward with evidence in
courts of justice, protecting them, as far as possible, from injury, or needless annoyance, in
consequence of doing so.

AUSTRALIA- Australia has no constitutional protection for the right to silence, but it is
broadly recognised by State and Federal Crimes Acts and Codes and is regarded by the courts
as an important common law right. In general, criminal suspects in Australia have the right to
refuse to answer questions posed to them by police before trial and to refuse to give evidence
at trial.

CANADA- The right to silence is protected under section 7 and section 11(c) of the Canadian
Charter of Rights and Freedoms. The accused may not be compelled as a witness against
himself in criminal proceedings, and therefore only voluntary statements made to police are
admissible as evidence.

HONG KONG- The right to silence is protected according to common law

EUROPEAN CONVENTION ON HUMAN RIGHTS - The concept of right to silence is not

specifically mentioned in the European Convention on Human Rights but the European Court
of Human Rights has held that

the right to remain silent under police questioning and the privilege against self-incrimination
are generally recognised international standards which lie at the heart of the notion of a fair
procedure under Article 6.

UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948. ART. 11.1 -“Everyone charged

with a penal offence has the right to be presumed innocent until proved guilty according to
law in a public trial at which he has had all the guarantees necessary for his defence.

CAN A LAW CURTAIL THE FUNDAMENTAL RIGHT?

Article 13(2) of the Constitution of India reads as,

“ The state shall not make any law which takes away or abridges the rights conferred by this
part (Fundamental Rights) and any law made in contravention of this clause shall, to the
extend of the contravention, be void.”
Similarly Article 13(1) declares all pre-Constitutional law, inconsistent with the
Fundamental Rights void to the extent of inconsistency.

Thus, not merely an executive action but even a legislation cannot violate a fundamental
right. Thus either section 108 of the Customs Act or Section 14 of the Central Excise Act
must be construed in a manner not inconsistent with the Article 20(3) of the Constitution.
Any inconsistency will make the law void in the eyes of the law41.

It means that a Customs or a Central Excise officer has a right to summon a person and the
person is bound to state the truth. However, if the truth is self-incriminatory the person
summoned can exercise privilege granted under Article 20(3) of the Constitution. A self-
incriminatory statement is not admissible in any criminal or even a quasi-criminal
proceeding, following the wide definition of offence within the meaning of the Article 20(3)
of the Constitution and the term “to be a witness” as opposed to “to appear as witness.

CAN A PERSON WAIVE THE PRIVILEGE GIVEN UNDER ARTICLE 20(3)?

It is a settled position of law that a Fundamental Right cannot be waived.24 Nevertheless the
right given under Article 20(3) of the Constitution is in the nature of a privilege and person
holding this privilege may refuse to exercise this privilege. The right is against “compulsion
to testify”, and not against “testify” as it is. Thus a person may testify against himself.

However the waiver of privilege must be a real and substantial waiver. If a person does not
know that he has this privilege and if out of ignorance he fails to exercise this privilege, it is
not a real and substantial waiver. In that case the statement is hit by Article 20(3) of the
Constitution whenever it is brought before adjudicating authority or Court. Further when a
person has this privilege, and the officer recording his statement gives the legal threat of
Section 108, which is not applicable when Article 20(3) is applicable; this amounts to
compulsion and the statement is hit by Article 20(3) and not applicable.

The author is of the view that Custom and Central Excise authorities must inform the person
summoned that he has this protection under Article 20(3) of the Constitution, when the
situation so requires. In Nandini, followed in Kartar Singh, the Supreme Court has given
direction to the police that they should bring this right to the notice of the person whose

41
http://www.articlesbase.com/law-articles/protection-against-selfincrimination-1183273.html (assessed on
24/10/2012)
statement they are recording and they should take a written acknowledgement. There is no
reason as to why this direction should not be applicable in case of Customs and Central
Excise.

Right remain silent during interrogation

The question whether the accused should be a apprised of his right not to answer and keep
silent while being interrogation by the police was considered by the SC of the USA in
Miranda v. Arizona42 and the court held that if a person in custody is to be interrogated, he
must first be informed in clear and unequivocal terms that he has a right to remain silent.

In State of Punjab v. Balbir Singh43 SC held that when such am important right is given to an
accused person in custody in general, the right by way of safeguard conferred under section
50 of the NDPS of the Act in the context is all the mire officers intending to search of inform
the person to be searched of his right that is he chooses, he will be searched in the presence
officers of a gazetted officers or magistrate. This Provision of speech and section 50of the
NPDS act is mandatory

Article 20(3) different proceedings

In Criminal Proceedings:

The privilege in criminal law is based on and determined by section 161(2) of the Code of
Criminal Procedure, section 27 of Indian Evidence Act and Article 20 (3) of the Constitution
of India . The most pertinent case in this regard is undoubtedly Nandini Satpathy v. P.L.Dani
, wherein Krishna Iyer, J. widened the scope of the protection considerably. The issues before
the court were various: the ones significant for the instant paper were whether a potential
candidate for accusation can avail of the privilege, does the privilege extend to other pending
or potential accusations outside the specific investigation which has led to the questioning, at
what instance in the entire proceeding does the privilege become available, the scope of
compulsion, and whether the privilege extends to derivative evidence. It was subsequently
held that, the right extends to witness and accused alike, that the expression 'accused of any
offence, must mean formally accused in praesenti not in futuro, that it applies at every stage
at which furnishing of information and collection of materials takes place, that the privilege
42
(1966) 384 US 436
43
AIR 1994 SC 1872
extends not only to the deployment of the information obtained as evidence in a criminal
prosecution, but to the extraction of the information itself , that the true test for testing valid
invocation of the right is reasonable apprehension of the accused/witness as to the use of the
information against him/herself, and finally, that compelled testimony includes evidence
procured not merely by physical threats or violence but by psychic torture, atmospheric
pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory
methods and the like, but not legal penalty for violation.

Despite this slight caveat, it is evident that the protection against self-incrimination is
undoubtedly quite extensive in criminal law, extending as it does to almost all people, at
almost all stages of a criminal trial. It is this wide armor that must be kept in mind at all times
while discussing the right as available in administrative proceedings..

The protection under Article 20 (3) does not therefore extent to parties and witness in
civil proceedings or proceeding other than criminal.

Right to silence in administrative proceedings

Post-1978, despite the ruling in Nandini, the courts have elected to follow the precedent as set
by R. C. Mehta et al. Thus, the same ratio is pronounced yet again in Poolandi : the protection
does not extend to some hypothetical person who may in the future be discovered to have
been guilty of some offence44. The differentiation made in M. P. Sharma between to be a
witness and appear as a witness, which was quite lost sight of by the courts in the main until
Nandini was promptly dismissed off again, for the court preferred to differentiate between
proceedings between administrative proceedings and proceedings under the Code of Criminal
Procedure. This is evidently problematic. Even if an administrative proceeding does not have
a direct criminal implication for the accused (or rather, the person being investigated), the
fact is that there are some implications entailed, specifically with relation to the reputation of
the person as a professional. This in itself should be enough to invoke the right to fair trial as
enshrined in Article 20. To say on the one hand that an administrative proceeding is a mere
fact-finding mechanism and therefore by implication has no significant impact on the person
involved, while on the other hand arguing that to include such a right would hamper the
functioning of the administrative body, and would hence have a significant impact on public

44
http://www.legalserviceindia.com/article/l9-Silence-Of-The-Lambs---Article-20(3)-In-Administrative-
Proceedings.html (assessed on 24/10/2012)
interest is tantamount to unquestioning assumption of a paradoxical premise and arguing
thence onwards.

LEADING CASES RELATED TO THE RIGHT TO SILENCE

1. In the case of M.P. Sharma v. Satish Chandra, it was held that a person, whose name was
mentioned as an accused in the first information report by the police investigation was
ordered by the Magistrate, could claim the protection of this guarantee. The privilege in
Article 20(3) is undoubtedly available at the trial stage but is also available at the pre-trial
stage i.e. during police investigation if the person concerned can be regarded as an
accused.
2. In the case of Kartar Singh v. State of Punjab45 SC held that the guarantee against
testimonial compulsion extends not only to oral testimony in court or outside court but
also in written statements incriminating the matter of the statement. The court has made it
clear that the protection against self – discrimination inder Article-21
3. In the case of State Bombay v. Kathikalu46 it must be shown that the accused was
compelled to make statement likely to be in criminative of himself. Compulsion means
duress, which includes threatening, beating or imprisonment of wife, parent or child of
person. Thus where the accused makes a confession without any inducement, threat or
promise art 20(3) does not apply.

4. In nandini satpathey Vs. P.L. dani47 It was subsequently held that, the right extends to
witness and accused alike, that the expression 'accused of any offence’, must mean
formally accused in “praesenti not in future”, that it applies at every stage at which
furnishing of information and collection of materials takes place, that the privilege
extends not only to the deployment of the information obtained as evidence in a criminal
prosecution, but to the extraction of the information itself.

5. In V.S. Kuttan Pillai vs Ramakrishnan and Another48, the court held that, a general search
warrant may be issued to procure the document or thing and it can be recovered from any
person who may be ultimately found in possession of it and it was not known to the Court
that the person from whose possession it was found was in possession of it.

45
(1994) 3 SCC 569
46
AIR 1961 Cri LJ , Vol 2, 2007
47
(1978)2SCC424
48
AIR 1980 SC 185
6. In State (Delhi Administration) vs Jagjit Singh49 held that once an accused is granted
pardon under section 306 of Criminal Procedure Code, he ceases to be an accused and
becomes a witness for prosecution and his evidence, as approver cannot be used against
him in other cases and he is protected under proviso to Section 132 of Indian Evidence
Act. The proviso to Section 132 of Indian Evidence Act clearly protect a witness from
being prosecuted as the basis of the answers given by him in a criminal proceeding which
tend to incriminate him directly or indirectly.

49
AIR 1989 SC 598
 Conclusion and recommendations

The law in India appears to be same as in USA and Canada. In view of the provisions of
clause (3) of Art. 20 and the requirement of a fair procedure under Art. 21, and the provisions
of ICCPR to which India is a party and taking into account the problems faced by the Courts
in UK, we are firmly of the view that it will not only be impractical to introduce the changes
which have been made in UK but any such changes will be contrary to the constitutional
protections referred to above. In fact, the changes brought about in the Criminal Procedure
Code, 1973 leaving out the certain provisions which were there in 1898 Code, appear to have
been the result of the provisions of clause (3) of Art. 20 and Art. 21 of our Constitution.
We have reviewed the law in other countries as well as in India for the purpose of
examining whether any amendments are necessary in the Code of Criminal Procedure, 1973.
On a review, we find that no changes in the law relating to silence of the accused are
necessary and if made, they will be ultra vires of Art. 20(3) and Art. 21 of the Constitution of
India.
In the Indian context, clause (3) of Art. 20 of the Constitution of India guarantees a
fundamental right against self incrimination. Art. 21 grants a further fundamental right to life
and liberty and states that the liberty of a person cannot be taken away except by a procedure
laid down by the law. In Maneka Gandhi’s case it was further interpreted that the procedure
envisaged by Art. 21 is a procedure which must be just, fair and equitable.
The Constitution of India raises the rule against self-incrimination to the status of
constitutional prohibition. The prohibitions imposed by Article 20(3) are directly relevant to
the criminal procedure during investigation by police and trial before court. The purpose of
this protection is to prevent torture and inhuman treatment of the accused at the hands of
investigating agencies to extort confessions
The right to silence at the time of questioning by the police, when no charges are
framed and to the right at the trial, after charges are framed and states that silence at the stage
of interrogation of police cannot have the same importance as silence at the trial, in as much
as at that stage, there is no allegation or evidence. At the stage of interrogation, the suspect
may remain silent because things are not clear. At the stage of trial, there is a charge and
there is evidence and therefore there is less chance of a shock or confusion or inadequate
preparation to answer the questions. Even so, it does not preclude silence at the stage of
interrogation being taken into account by the Judge or the Jury.
 The right to silence has been considered by the Supreme Court of India in a three-
Judge Bench in Nandini Satpati vs. P.L. Dani 1978(2) SCC 424 where the Supreme Court
followed the earlier English law and the judgment of the American Supreme Court in
Miranda. Krishna Iyer J observed that the accused was entitled to keep his mouth shut and
not answer any questions if the questions were likely to expose him to guilt. This protection
was available before the trial and during the trial.
 BIBLIOGRAPHY
Primary sources-
Bare Act
1. The Indian Evidence, Act, 1955.
2. Indian Penal Code,1860
3. Code of criminal Procedure, 1898
4. The constitution of India.
Case laws –

1. Bibhuti Bhushan Das Gupta. V. State of W.B AIR 1969 SC 381

2. Kalawati v. State of H.P AIR 1953 SC 131
3. Kartar Singh v. State of Punjab AIR1952 SC 235
4. M.P Sharma v. Satish Chandra AIR 1954 SC 300
5. Miranda v. Arizona (1966) 384 US 436
6. Nandini satpathey Vs. P.L. dani AIR 1978 SC 1025
7. Narayan lal v. Maneek S. Mistry AIR 1961 SC 29
8. Narayanlal Bansilal v. Maneek Phiroz Mistry AIR 1961 SC29
9. State (Delhi Administration) vs Jagjit Singh AIR 1989 SC 598
10. State of Bombay v. Kathi Kalu AIR 1961 SC 1808.
11. State of Punjab v. Balbir Singh AIR 1994 SC 1872
12. State of U. P v. Deoman upadhyaya AIR 1960 SC 1125
13. V.S. Kuttan Pillai vs Ramakrishnan and Another AIR 1980 SC 185
14. Vidya Verma v. Shiv Narain
15. Wooley v. Maynard 430 U.S. 705 (1977)

Secondary sources-
Books-Dr.
A. Report of the law commission of India, 180th Report, vol-15, Universal Law
Publishing Co. Pvt. Ltd. (pages-180.1-181.26 ).
B. L.M. Singhvi, constitution of India, 2nd edition, vol-1, Modern Law Publication
(2007) (page no. 898-923)
C. Arvind P. Datar, Commentary on the Constitution of India, 2nd edition, vol-1,
Wadhwa Publication (2007) (page no. 355-362)
D. Basu Dr. Durga Das, Introduction to the Constitution of India, 8th Edition (Reprint)
2008, Wadhwa & Company law publication (page 2997-3077)
 E. Shukla V.N., Constitution of India (Revised by M.P. Singh) 19 th Edition, 2001,
Eastern Book Company (page 186-191)
Articles-
a. K van Dijkhorst, The Right Of Silence -Is The Game Worth The Candle ?, also
available on http://www.isrcl.org/Papers/van%20Dijkhorst.pdf (Accessed on 28rd
OCT 2012)
b. Gareth Griffith, The Right to Silence, Briefing Paper No 11/97,September 1997,
Briefing Paper is published by the NSW Parliamentary Library, also available on
http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/29C6C17EDF25
0 (Accessed on 28rd OCT 2012)
c. Dov Fox, The Right To Silence As Protecting Mental Control, AKRON LAW
REVIEW,2007, also available on https://uakron.edu/law/lawreview/v42/docs/Fox.pdf
(Accessed on 28rd OCT 2012)
d. Stephen Rushin Rethinking Miranda: The Post-Arrest Right to Silence, California
Law Review, Inc. (CLR), (2011) also available on
http://www.californialawreview.org/assets/pdfs/99-1/Rushin.FINAL.pdf (Accessed on
28rd OCT 2012)
Dictionary: www.legal-dictionary.com (Accessed on 28rd OCT 2012)
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