CONSTITUTIONAL LAW

PRIVILEGE AGAINST SELF – INCRIMINATION

*Harshit Khare1

1
*Harshit Khare, B.A.Ll.B., III Semester, University Of Petroleum And Energy Studies.
 INTRODUCTION

“…..throughout the web of English criminal law, one golden thread is always to be
seen, that it is the duty of the prosecution to prove the prisoner’s guilt”2

The main provision regarding crime investigation and trial in the Indian Constitution is Art.
20(3). It deals with the privilege against self-incrimination. The privilege against `self
incrimination is a fundamental canon of Common law criminal jurisprudence3. Art. 20(3)
which embody this privilege read, “No person accused of any offence shall be compelled to
be a witness against himself”.
No one is bound to criminate himself. Hence although an accused person may of his own
accord make a voluntary statement as to the charge against himself, a justice, before
receiving such statement from him is required to caution him that he is not obliged to say
anything and that what he does say may be given in evidence against himself. hence also
arises the rule that evidence of a confession by the accused is not admissible unless it is
proved that such confession was free and voluntary4.
The privilege against self-incrimination thus enables the maintenance of human privacy in
the enforcement of criminal justice. It also goes with the maxim Nemo Tenetur Seipsum
Accusare5 i.e., ‘No man, not even the accused himself can be compelled to answer any
question, which may tend to prove him guilty of a crime, he has been accused of.’ If the
confession from the accused is derived from any physical or moral compulsion (be it under
hypnotic state of mind) it should stand to be rejected by the court. 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

2
Woolmington v DPP [1935] AC 462 is a famous House of Lords case in English law, where the presumption
of innocence was first articulated in theCommonwealth.By- Viscount Sankey
3
Criminal law jurisprudence prevails in “common law system”
4
The Law Lexicon, 2nd edition, 2006, justice Y.V.Chandrachud, pg- 1298
5
Black’s Law Dictionary,9th Edn.
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 COUNTRIES6

A) 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 conviction.

B) 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.
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.

C) INDIA:-
Article 20(3) reads that-
“No person accused of any offence shall be compelled to be a witness against himself”
The privilege against self-incrimination is a fundamental canon of common criminal law
jurisprudence. The characterisitics features of this provisions are –
 That the accused is presumed to be innocent,

6
M.P.Jain’s Indian Constitutional Law,fifth Edn..,Wadhwa Nagpur,Reprint,2007
  That it is for the prosecution to establish his guilt, and
 That the accused need not make any statement against his will.

INGREDIENTS CONSTITUTING THE PROVISION

This provision contains following ingredients-

1. It is a right available to a person”accused of an offence7”.
2. It is a protection against “compulsion to be a witness”.
3. It is a protection against such “compulsion” resulting in his giving evidence
“against himself”.

Elaborating the ingredients

Origin-
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.

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 FIR8 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.

7
where evidence oral or circumstantial points to the guilt of a person and he is taken in custody and
interrogated on that basis, he becomes a person accused of an offence.
8
First Information Report
But in nandini satpathey Vs. P.L. dani9
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 “presenti 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.

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. Kathikalu10 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.

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

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AIR1978SC1025, 1978crilj968, (1978)2SCC424, Decided On: 07.04.1978
Nandini Satpathy - Former Chief Minister Of Orissa - Against Whom A Case Had Been Registered Under
The Prevention Of Corruption Act, Was Asked To Appear Before The Deputy Superintendent Of Police
[Vigilance] For Questioning. The Police Wanted To Interrogate Her By Giving Her A String Of Questions In
Writing. She Refused To Answer The Questionnaire, On The Grounds That It Was A Violation Of Her
Fundamental Right Against Self-Incrimination.

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AIR 1961 Cri LJ , Vol 2, 2007
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

1. 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.”

2. The International Covenant on Civil and Political Rights, 1966 to which India is a
party states in Art. 14(3)(g)

“Not to be compelled to testify against himself or to confess guilt”.

3. 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.”
 CONCLUISON
A survey of the current law in various countries reveals that in USA, Canada and
India in view of the constitutional provisions against self incrimination the Courts have
required the prosecution to prove guilt beyond reasonable doubt and there has been no
encroachment whether at the stage of interrogation or trial, into the right to silence vested
in the suspect or accused.

It is well established that the Right to Silence has been granted to the accused by virtue of
the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly
extract statements from the accused, who has the right to keep silent during the course of
interrogation (investigation). By the administration of these tests, forcible intrusion into
one's mind is being restored to, thereby nullifying the validity and legitimacy of the Right
to Silence.

Law is a living process, which changes according to the changes in society, science, ethics
and so on. The Legal System should imbibe developments and advances that take place in
science as long as they do not violate fundamental legal principles and are for the good of
the society. The criminal justice system should be based on just and equitable principles.11

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LAW COMMISSION OF INDIA ONE HUNDRED EIGHTIETH REPORT ON ARTICLE 20(3) OF THE
CONSTITUTION OF INDIA AND THE RIGHT TO SILENCE.