RIGHT TO REMAIN SILENT

INTRODUCTION:

The right to remain silent means right against self-incrimination when questioned. It is a right that gives any individual the right to deny for answering the questions before or during the trial, hearing, or any other legal proceedings from court officials or law enforcement officials. And it is the duty of the prosecution to prove prisoner's guilt. No one is bound to criminate himself. Hence, confession by the accused is not admissible unless it proves that the confession is given voluntarily. It is based on the maxim Nemo Tenetur Seipsum Accusare i.e. “No man, not even an accused himself, can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of”’.

The Right to Silent is canonized in Cr.P.C. 1973 and Indian Constitution. Section 161(2) of Cr.P.C.,1973 says that "such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would tend to expose him to a criminal charge or to a penalty or forfeiture"[1] . And Article 20(3) of Indian Constitution says that “ no person accused of any offence shall be compelled to be a witness against himself”[2]. But where the accused makes any confession without any inducement, coercion or promise article 20(3) doesn’t apply.

STATUS OF THE PROVISION IN VARIOUS COUNTRIES:

1) U.S.A.

The 5th Amendment of U.S. constitution provides that “no person shall be compelled in any criminal case, to be a witness against himself”[3].

This privilege has been given to apply both criminal as well as civil proceedings. And covers documentary and oral evidence which extends to all disclosures including answers which by themselves support a criminal conviction or furnish a link in chain of evidence needed for conviction[4].

Case: In COUNSELMAN V/S. HITCHCOCK US Supreme Court said that not incriminating an individual for testimony was not the same as not requiring them to testify at all[5].

2) BRITAIN

Though the origin of the Right to Silent is not limpid but right goes back to the middle ages of England. It was the 19th century, there was an oath known as the ex-officio oath in which English Courts of Star Chambers and Commissions developed the practice of compelling suspects to take that oath, and the accused had to answer questions, without even a formal charge, put by the judge and the prosecutor. And if the accused refused to take that ex-officio oath, then that accused had been tortured. And Star Chambers and Commissions were quashed.

3) INDIA

Clause (3) of Article 20 of the Indian constitution says that no person accused of any offence shall be compelled to be a witness against himself. Thus article 20(3) embodies the general principles of English and American jurisprudence that no one shall be compelled to give testimony, which may expose him to prosecution for crime. The cardinal principle of criminal law, which is really the bedrock of English jurisprudence, is that an accused must be presumed to be innocent till the guilt is proved. It is the responsibility of the prosecution to prove the guilt. The accused need not make any admission or statement against his own free will.

The fundamental rule of criminal jurisprudence against self-incrimination has been raised to a rule of constitutional law in article 20(3). A confessional statement of the accused found to be involuntary in hit by article 20(3) of the constitution[6].

CASE: M.P. SHARMA V. SATISH CHANDRA

In this case Supreme Court has given following essentials for this right:

1. It is a right pertaining to a person who is “accused of an offence”.
2. It is a protection against “compulsion to a witness”.
3. It is a protection against such compulsion relating to his giving evidence “against himself.”
4. Accused of an offence

This word made it clear that this right is only available to a person charged with an offence. A person is said to be an accused person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution and conviction[7]. It is not necessary that the actual trial or inquiry should have started before the court.

In M.P. SHARMA V. STATE OF U.P. it was held that “a person whose name was mentioned as an accused in a FIR by the police and investigation was ordered by Magistrate, could claim the protection of this guarantee”.

Guarantee in our Indian Constitution is narrower than that in the American Constitution. In America, this right is not confined to the accused only. It is also available to witness. The position is the same in English law. But the protection under clause 3 of article 20 is available only to the accused.

1. To be a witness-

The protection is against compulsion to be a witness. In M.P.SHARMA V. SATISH CHANDRA, the Supreme Court interpreted the expression to be a witness very widely so as to include oral, documentary and testimonial evidence.

CASE: STATE OF BOMBAY VS. KATHI KALU

The Supreme Court held that the interpretation of the phrase “to be a witness” is too broad and required a qualification.

CASE: STATE VS. M. KRISHNA MOHAN

In this case Supreme Court held that taking of specimen fingerprint and handwriting from accused is not prohibited by article 20 (3) as being “witness against himself”.

1. The compulsion to give evidence "against himself"

The protection under article 20(3) is available only against the compulsion of the accused to give evidence “against himself”. To attract the protection of article 20 (3) it must be shown that the accused was compelled to make the statement likely to be incriminating of himself. Thus where the accused makes any confession without any inducement, threat or promise article 20(3) does not apply.

CASE: NANDINI SATPATHY V. P. L. DANI

Supreme Court held that the prohibitive scope of article 20(3) goes back to the scope of police interrogation not commencing in court only. But it also extends to and protects the accused in regard to other offences- pending or imminent, which may deter him from voluntary disclosure.

CASE: YUSUFALI V. STATE OF MAHARASHTRA

A tape-recorded statement made by the accused though made without knowledge of the accused but without force or oppression, was held to be admissible in evidence.

CONVENTIONS RELATING TO RIGHT TO REMAIN SILENT:

1. Universal Declaration of Human Rights,1948. Art. 11.1- Everyone charged with a penal offence has right to be presumed innocent until proved guilty according to law in public trial at which he has had all the guarantees necessary for his defence.
2. Section 161(2) of Criminal Procedure Code, 1973 grants a right to silence during interrogation by police.
3. The International Covenant on Civil and Political Rights, 1966 to which India is a signatory, states in Art. 14(3)(g) Not to be compelled to testify against himself or to confess guilt.
4. 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:

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

CONCLUSION:

Indian constitution raises the rule against self-incrimination to the status of constitutional prohibition. The main motto of this protection is to prevent the accused from torture and inhuman treatment at the hands of investigating agencies to extort confessions.

[1] S.N.MISHRA, THE CODE OF CRIMINAL PROCEDURE 232 (11TH ed.2012)

[2] DR. J.N.PANDEY, CONSTITUTIONAL LAW OF INDIA 275-277 (56TH ed.2019)

[3] DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 275 (56TH ed. 2019)

[4] McCarthy vs. Arndstain, 266 US 34.

[5]Counselman v. Hitchcock, 142 U.S.547 (1892).

[6] Ashish Jain v Markand Singh, AIR 2019 SC 546 at p. 553

[7] Narayan Lal v M.P.Mistry, AIR 1961 SC 29.

[Author's Profile: Shailee Mishra is a student of B.A. LLB (Hons) from University of Allahabad]