This article is written by Vaishali Jeswani, a student of Hidayatullah National Law University.
Table of Contents
The right to not speak against himself or to remain silent is given to an accused, this right is recognized around the globe. In India, it forms a part of Right to self-incrimination under Article 20(3) of the Indian Constitution. It is considered the duty of the prosecution to prove a person guilty until proven otherwise he remains an innocent man. In India, criminal law has vested the citizens with this right under various provisions.
Article 20(3) of the Indian Constitution states that no one can be compelled to be a witness against himself, the right to remain silent emanates from this very Article. The provision enables the citizens to enjoy the right against self-incrimination which is a fundamental canon of law. The privileges under this right are:
a.) The accused is presumed to be innocent;
b.) The prosecution has to prove him guilty;
c.) He cannot be compelled to give any witness.
Thus, under Article 20(3) – ‘No person accused of an offence shall be compelled to be a witness against himself’ giving an immunity to the accused. It is based on the legal maxim “nemo tenetur prodere accusare seipsum”, which means “No man is obliged to be a witness against himself.”
An accused person may give a statement which can be used as a witness against himself. But, before the accused makes such a statement, he should be notified that he is not bound to make a statement against himself and if he does so it can be used against him. Thus, no one can be compelled to cremate himself. Hence, an admission made by the accused cannot be admitted as an evidence unless such statement was made voluntarily and out of free will. The privilege enables the maintenance of human privacy in the enforcement of criminal justice.
If any statement is obtained by using force either physical or otherwise, it should be rejected by the court. The right to silence or forced self-incrimination is provided to the citizens of India under Section 161(2) of the code of criminal procedure (crpc) and Article 20(3) of the Indian Constitution. Section 161(2) of the Crpc lays down that an accused should answer all questions put forth by the authorities truthfully, other than those which subject him to penalty or other punishments.
Article 20(3) of the Indian Constitution
Article 20(3) reads that:
The privilege under this part is regarded as a fundamental canon of the criminal jurisprudence in India. Article 20(3) says that no person accused of any offence shall be compelled to be a witness against himself. The characteristics features of these provisions are –
- That the Accused is presumed to be innocent until proven guilty,
- It is the duty of the prosecution to establish guilt, and
- The accused cannot be forced to give a statement against his will.
Ingredients Constituting the Provision
This provision contains following ingredients:
- The right to remain silent or against self-incrimination is available to the accused.
- The right immunes a person from being a witness against himself.
- It provides protection against such force which would result in him giving evidence against himself.
Elaborating the ingredients
The origin of the right to silence goes back to the middle ages in England but the clear origin cannot be traced. During the sixteenth century, the English Courts of Star Chamber and High Commission built up the act of convincing suspects to make a vow known as the ex-officio vow and the blame needed to address questions, without even a proper charge, put by the appointed authority and the examiner. In the event that an individual would not make a vow, he could be tormented. These Star Chambers and Commissions were later nullified. The option to quietness depends on the standard ‘nemo debet prodere ipsum’, the advantage against self-implication.
Accused of an offence- The advantage under this proviso is simply accessible to a denounced i.e., an individual against whom a conventional allegation identifying with the commission of an offense has been leveled which in the typical course may bring about the indictment. It is anyway redundant, to profit the advantage, that the genuine preliminary or enquiry ought to have started under the watchful eye of the court or council. Along these lines an individual against whom the FIR has been recorded by the police and examination requested by the Magistrate can guarantee the advantage of the assurance.
Regardless of whether his name isn’t referenced in the FIR as a blame, it won’t remove him from the category. In America the privilege against self-implication isn’t simply accessible to be charged yet additionally to the observer. However, Not Under Indian Laws.
In the case of Nandini Satpathey Vs. P.L. Dani
It was held that the privilege stretches out to observe and charged the same, that the articulation ‘blamed for any offense’, must mean officially denounced in praesenti not in future, that it applies at each stage at which outfitting of data and assortment of materials happens, that the advantage stretches out not exclusively to the organization of the data got as proof in a criminal arraignment, however to the extraction of the data itself.
Witness against himself– A person accused of an offence cannot be compelled to be a witness against himself. The law says nobody needs to cremate himself. It is upon the prosecution to establish guilt. It is the duty of the officials to remind the accused of his right to remain silent and intimate him that if he makes any statement against himself it can be used against him. A statement made under influence cannot be admitted in the court.
Compulsion to give evidence- If force is exercised upon the accused and he makes any statement under such influence, it is bound to be rejected by the Court. In other words, he cannot be compelled to be a witness against himself. A statement not made voluntarily cannot be used as a witness.
Yusufali v. State of Maharashtra- This is a case where the data given by the charged was recorded without his insight and court held that the account will be permissible as a bit of proof. This is so in light of the fact that anyway it was without the information of the charges however the data which the blamed had given was not out to an impulse. Also, on the off chance that any archive is seized from the reason of the charge, at that point it won’t be violative of this arrangement.
Accordingly, it is clear that an individual who is blamed for an offense isn’t constrained to give any such explanation or proof which later betrays the blamed as it were. The option to quietness exists for blame. This was additionally held on account of Amrit Singh v State of Punjab.
Compulsion resulting in giving evidence against oneself
The right to silence has various angles. On one hand, it puts the burden on the prosecution or the state to prove that the accused is guilty. On another, it presumes that the accused is innocent until proven guilty. The third angle is where the right against self-incrimination allows the accused to remain silent and protects him from cremating himself. Some exceptions are provided, where the accused cannot protect himself by using this right. During an investigation, the accused can be compelled to allow his photographs taken, DNA sample, or other body material for tests etc.
Example of self- incrimination– When an accused is brought for oral questioning by an officer, it is the duty of the accused to answer truly to all the questions asked by the police officer. But if the officer threatens him or uses force the right to self-incrimination would arise and he can refuse to answer questions which might pose a possibility of criminal charges against him. Such a right exists to protect him because no person should be seen with guilty eyes unless proven so and the burden to prove guilt lies upon the prosecution.
If a person makes a statement during trial, the background must be checked. There should be nothing in the facts and circumstances which shows that force has been exercised to get the confession which would impact him. There is a need to maintain the human privacy while delivering criminal justice, which is the object behind this provision.
In Vidya Verma v. Shiv Narain- It was held by the court that the protection granted under article 20(23) extends to criminal proceedings only. The American constitution allows such protection in all proceedings (criminal and civil). The statement made might be used in future proceedings.
In Kalawati v. State of H. P -The supreme court of India held that Article 20(3) cannot be applied to a case where the statement was made voluntarily and was not procured by threat, inducement or promise. Similarly, Retracted confessions, along though they have very little probative value, are not repugnant to this clause.
In V.S. Kuttan Pillai vs Ramakrishnan and Another,– It was held by the court that a warrant can be issued to search for a document and if it is found in the possession of that person it can be recovered and it was not known to the court that such person was in possession of the document.
Some of the particulars relating to right to silence are:
- Art. 11.1, Universal Declaration of Human Rights, 1948.
Every person accused of committing a penal offence has the right to be presumed innocent until proven guilty in a public trail during which he has every guarantee necessary for defending himself.
2. India among many other countries is a party to The International Covenant on Civil and Political Rights, 1966. Under Art. 14(3)(g) it lays down
That no accused shall be compelled to testify against himself or to confess guilt.
3. Art. 6(1) of The European Convention for the Protection of Human Rights and Fundamental Freedoms states that every accused/person charged has a right to a ‘fair’ trial and Art. 6(2) thereof states:
According to law, unless the person accused of an offence is proved guilty, he shall be accorded the presumption of being innocent.
Analysis of Section 161 of Code of Criminal Proceedings
Section 161 of CrPC manages the assessment of witnesses. Under this segment a cop inspects the individual. The inquiry emerges what goes under the ambit of ‘people’. This was held on account of Pakala Narayana Swami V. Emperor Held that the ‘people’ incorporate any individual who might be charged in this manner.
Section 161(2) of CrPC says that-
When an officer examines a person, who is acquainted with the facts and circumstances of the case, such a person shall answer the questions truthfully other than the questions which have a tendency to expose him to criminal charges.
This provision is provided to an individual based on the saying ‘no person has to cremate himself’. Thus, it is the duty of the person to answer truthfully to all the questions put forth by the officer but he cannot be forced to speak anything against himself. The law gives him a right to stay silent if the statement has a tendency to jeopardize him.
Under this part, the individual is obliged to answer honestly and yet this segment too shields the individual from responding to the inquiries which would later implicate individual himself. Subsequently, section 161 of CrPC alongside Article 20(3) of the Indian Constitution protects the interest of the accused. Also the option to stay quiet goes about as a crucial right. It is clear from this arrangement that in the event that the individual or a denounced is offering a response, at that point it must be a genuine answer however the blamed has full option to stay quiet and not utter a word. There is no impulse or no power is forced on the charged to powerfully give an explanation which can open them later to conviction. Consequently, it goes about as a shield and an assurance for the charged just as the observer and suspects. Section 20(3) read with Section 161(2) of CrPC shields from necessary oral declaration.
Can a law curtail the Fundamental Right?
Article 13(2) of the Constitution of India brings forth that, the state shall not make laws which infringes or abridges the rights of citizens provided under this part (fundamental rights) of the constitution, and if any law is made to that extent it shall be void.
Similarly, Article 13(1) declares those pre-constitutional laws void and ineffective which violate the fundamental rights in any manner. Thus, neither an executive action nor a legislative law can violate the fundamental rights. 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 Article 20(3) of the Constitution. If there would be any inconsistency it will make the law void in the eyes of the law.
It means that a Central Excise officer or a custom officer has a right to summon a person and the person is bound to state the truth. However, if the truth is self-incriminatory and can be produced as witness against the person summoned, he can exercise privilege granted under Article 20(3) of the Constitution. A statement which is self-incriminatory in nature is not admissible in any criminal or even a quasi-criminal proceeding, following the broad definition of offence within Article 20(3) of the Constitution.
Right to Silence
Indian constitution gives the right to stay quiet as a portion of essential rights to all the residents. This correction exists as Article 20(3) as it gives security to the blamed. Under Indian legal system no person can be denied rights or treated in an inhuman or bad manner unless he is proven guilty of the offence charged.
On account of D.K. Basu v. State of West Bengal legitimate rules and methodology was set down to ensure the denounced. The court additionally held that when an individual has captured the privilege of quietness as given under Article 20(3) should be explicitly educated. Mindfulness must be spread and each individual has the option to realize that a correction exists on his kindness. Consequently, it shows that nobody can power to give an explanation which will influence the individual himself and reserve the option to stay quiet. It joins the privilege of free discourse and articulation.
Narco analysis test vis-a-vis self incrimination
Tests like DNA and Narco Analysis have always been in debate for their admissibility in criminal proceedings. A question always arises concerning the matter if these tests violate the right against self-incrimination under Article 20(3). In Gobind Singh v. State of Madhya Pradesh, the court said that the mental state of an individual comes under the purview of ‘Right to Privacy’. Later, developments in this area revealed that a state shall not compel an individual to reveal facts about his life which he wishes to keep to himself, as compelling him to do so would be a violation of the rights guaranteed under Article 20(3) and 21.
This issue came before the Supreme Court in Selvi v. State of Karnataka, the Supreme Court court dismissed the High Court’s dependence on the utility, dependability and legitimacy of narco examination tests and other such tests as techniques for criminal examination. The Court found that it is an essential impulse to drive a person to go through narco-examination, polygraph tests and cerebrum planning. The appropriate responses given during these tests are not intentionally and willfully given, so the individual can’t choose whether or not to respond to an inquiry, henceforth it adds up to tribute impulse and draws in insurance under Article 20(3). The Court expressed that the narco-investigation test is a coldblooded and cruel treatment which disregarded the privilege to protect a person. That courts can’t allow organization of narco-examination tests against the desire of the person besides in situations where it is essential under open interest.
DNA Test and Article 20(3)
The courts have shown reluctance while accepting DNA tests to conclude the case as these tests summon a person’s right to self-incrimination and right to privacy guaranteed under the Constitution. The Right to privacy is inherent in the Right to Life and Personal Liberty under Article 21. However, in some cases, the Supreme Court has said that the right to life is not absolute and where the situation requires can be subjected to restrictions. In Kharak Singh v. State of Uttar Pradesh, the apex court held that Right to Privacy is not guaranteed under the Constitution. The courts have allowed DNA tests in some cases to reach an end and deliver justice.
In the case of Kanchan Bedi v. Gurpreet Singh BediThe question emerged on the parentage of the baby, and the mother recorded an application for leading a DNA test, to which the dad restricted contending that his privileges would be disregarded. The Court held that where the parentage of a youngster is being referred to, guiding an individual to go through a DNA Test doesn’t add up to an infringement of essential rights. The Court relied on Geeta Saha v. NCT of Delhi, where the Division Bench ordered a DNA Test to be conducted on the fetus of the rape victim.
Can a person waive the privilege given under Article 20(3)?
It is a settled issue that A fundamental right cannot be waived. The privilege provided under Article 20(3) of the constitution is subject to its exercise by the accused, it is in the form of privilege and the person accused of an offence may choose not to exercise it. The right gives power to the accused to not ‘testify compulsorily’ but he can ‘testify’. Thus, if the accused chooses to testify out of his free will, he can do so.
However, the waiver of privilege must be an original and substantial waiver. For example, if a person is not aware about the privilege under Article 20(3) and out of ignorance, he waives this right then he cannot be said to have waived it in real and substantial sense. In such a case the statement would be hit by Article 20(3) of the Constitution whenever it is brought before adjudicating authority or Court, it might be rejected. Further, when an accused is brought in and the officer in charge threatens him of section 108 which is not applicable on cases covered under Article 20(3), a statement given under such threat would be treated as under compulsion and will not be admitted.
The person must be informed by the Custom and Central Excise authorities that he has this protection under Article 20(3) of the Constitution, when the circumstances require. In Kartar Singh vs. state of Punjab, the Supreme Court has laid down that the officers who bring in the accused must inform him about this right while recording statements and keep an acknowledgement with them. There seems to be no ground on why this direction should not be applicable in case of Customs and Central Excise.
The law says that an accused is presumed to be innocent until proven guilty, and the provision under Article 20(3) is required for this purpose. Article 20(3) of the Indian Constitution safeguards the right of the accused and protects him against any inhuman treatment. Three essentials are provided to invoke this section. The right is available only to an accused person and the right can be invoked in criminal proceedings and not civil. Section 161(2) of CrPC protects similar rights for the accused. If a person lawfully, out of his free will gives a statement which is an evidence against himself then it would be admitted in proceedings. Secondly, it is the duty of the officials to intimidate the person that a right to remain silent exists in his favor. In other words, every accused must be made aware about his rights. The accused can avail this right at any time during the criminal proceedings. A person shall not be compelled to speak against himself, the factor of compulsion should not be there. Thirdly, the statement given must be a witness against himself. Nobody should be forced to cremate himself and thus this right is offered to every individual around the globe.
The question regarding whether scientific tests are violative of Article 20(3) is often witnessed. Unless, there is compulsion to do something, everything which helps in deducing evidence is valid.
According to me, a line should be drawn between the right of an individual and process of Justice. Right to silence is an important provision which safeguards the interests of an accused during investigation process. No person should be forced to cremate himself by saying something which can go against him. However, there is a difference between obtaining evidence and forcing someone to speak and therefore these scientific tests are not violative. It is important to gather evidence and in many cases these DNA tests help in reaching justice. Thus, I support these tests because at the end they are part of the investigation and very important for a case.
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