CONSTITUTIONAL LAW

IMMUNITY FROM SELF INCRIMINATION:

A Fundamental Right Under Article 20 (3) of The Indian Constitution

FIRST INTERNAL ASSIGNMENT: RESEARCH PAPER

Submitted by Aasawari Deshmukh and Simrah Ahmed for the partial fulfilment for the
Bachelor’s Degree in Business Administration and Bachelor’s Degree In Law to the
Symbiosis Law School, Pune.

Aasawari Deshmukh (19010126184)

Simrah Ahmed (19010126176)
Division: B
Year: 1st Year BBA LLB

ACKNOWLEDGEMENT
I want to express my unique thanks of appreciation to my Professors just as our
director Dr. Shashikala Gurpur who gave me the brilliant chance to compose a
Research Paper on Constitutional Law, which likewise helped me in completing
a great deal of Research which I am extremely grateful for.

Prof.

CONTENTS

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Sr no INDEX Page No.

1. Introduction 4

2. Statement of Problem 6

3. Literature Review 7

4. Research Question 8

6. Research Objectives 8

6. Research Methodology 9

7. Research 10

8. Conclusion 15

9. Recommendations 16

INTRODUCTION

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The right against self-incrimination can be found in medieval roman law in the Latin maxim
“Nemon tenetur seipsum accusare” which translates to No man is obliged to accuse himself.
This right gradually evolved in common law via protests against the inquisitorial and
manifestly unjust methods of interrogation of an accused person. This right is one of the
fundamental canons of British System of criminal legal system which the United States of
America adopted from the British jurisprudence and incorporated it in their Constitution as
“no person shall be compelled in any case to be a witness against himself”1 ,and thereafter
was also inculcated into the Indian Constitution. The Constitution of India provides
protection to an accused against self-incrimination under the Article 20(3) – No accused
person shall be compelled to be a witness against himself. In 1978, under the Constitution
(44th- Amendment) Act, 19782, the Article 20 of the Constitution of India was granted a non-
derogable status i,e Certain human rights have been considered so important that they cannot
be limited or suspended in any circumstance.
The initial years of our Constitution, a certain ambiguity on the question of what evidence
was accorded protection, and prevailing conflicts between Article 20(3) and provisions of the
Indian Evidence Act, 1872. This in turn resulted in judgements with apparent imbalance
between the right against self-incrimination 3and the necessity to facilitate collection of
evidence by investigating trial agencies. These judgements were referred to the Supreme
Court, which clubbed them and referred them to an eleven-judge bench. The resultant
decision is the landmark judgment of State of Bombay v. Kathi Kalu Oghad4 which has made
an important contribution to the case law on the matter as it stands today. M. P. Sharma v.
Satish Chandra5 was the last significant ruling on the interpretation of Part III of the
Constitution post-independence. Following M.P. Sharma, several cases were referred to the
Supreme Court. The Questions addressed were essentially interpretation of what constitutes
to be a witness against oneself with respect to the circumstances of compulsion.
The provision relating to the self-incrimination is contained under Article 20(3) of the Indian
constitution which reads as- “No accused person of any offence shall be compelled to be a
witness against himself.” The features of this provision is that the accused does not have to

1
Fifth Amendment to the Constitution of the United States of America, 1789
2
Sec. 40 of the Constitution (Forty-fourth Amendment) Act, 1978
3
Article 20(3) of Indian Constitution
4
AIR 1961 SC 1808.
5
AIR 1954 SC 300

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make any statement against his will as it is for the prosecution to establish him guilty beyond
all reasonable doubt and the accused is presumed to be innocent utill proved guilty
This provision contains the following ingredients:
i. It is a right available to a person who is accused of an offence.
ii. It is a protection against compulsion to be a witness
iii. It is a protection against such compulsion in his giving evidence against himself.
.

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 STATEMENT OF PROBLEM

THE MISSCARRIGE OF JUSTICE BY THE AGENCIES WHILE INVESTIGATING

AN ACCUSED PERSON, The accused person is often subjected to torture and brutalization
by investigation agencies and the police through methods involving coercion, threats,
inducement or deception in order to attain a statement or produce evidence this unjust force
used against an accused person is unfair and unconstitutional which is one major obstacle in
the constitution which Article 20 (3) has attempted to overcome.

DETERMINING THE VOLUNTARINESS OF CONFESSIONS UNDER INDIAN

EVIDENCE ACT, 1872 In criminal law, confession proof is a prosecutor's most important
weapon-so potent that "the introduction of a confession makes the other initials of a trial in
court superfluous." At common law, all statements that are made to a "person in authority"
must be proven to be wilfull before it may be admissible at trial. This is known as the
"confessions rule". This finding must be made through a voir dire without a jury on a
standard of proof beyond a reasonable doubt.

JUDICIAL AND EXTRA JUDICIAL CONFESSION- RELEVANCY AND

ADMISSIBILITY IN INDIA, Extra-judicial confession are those which are made to
any person other than those authorized by law to take confession. This may be
made to any person or to police during investigation of an offence.

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 LITERATURE REVIEW

1. Article: Mike Redmayne, Rethinking the Privilege against self- incrimination, 27 (2)
OXFORD JOURNAL OF LEGAL STUDIES 209, 212 (2007)

The author in this article attempts to develop a rationale which avoids the usual pitfalls.
He argues that the most compelling rationale for the privilege is that it serves as a
distancing mechanism, allowing defendants to dissociate themselves from prosecution.
The resulting account has implication for the scope of the privilege. First, He suggest that
no distinction should be drawn between requirements to provide.

2. Article: John H. Langbein, The Historic Origins of the privilege against self-
incrimination at common law, Vol.92 (5), Michigan Law Review 1047, (1994)

The author shows the present scenario of self-incrimination and by this he says that across
the centuries the privilege against self-incrimination has changed character profoundly,
from the original privilege not to accuse on self to the modern privilege not to respond or
to testify. Many polices have come to be associated with the privilege against self-
incrimination . The researcher feels that this theory seems to fit in Indian context also
where we have also moved from the rights against self -incrimination to the right to
remain silent.

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 RESEARCH QUESTIONS

1) What is the validity and the rationality of Article 20(3) of Indian constitution, how
does it contribute in avoiding the miscarriage of justice?

2) What does Sec. 34 of the Indian Evidence Act,1872 state regarding the voluntariness
of confession and does it favour the accused?
3) What is the relevancy and admissibility of extra-judicial confession in India?

RESEARCH OBJECTIVES

 The researchers in this paper seek to critically analyze and discuss the rationality of
Article 20(3) in Indian legal system

 To bring out that what is meant by confession statement and in what conditions the
confession statement will be given, what are all the forms of confession statement and the
distinction between the confession statement and admissibility statement

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 RESEARCH METHODOLOGY

The researchers are opting for doctrinal method of research where in the researchers will refer
to primary and secondary sources of data and information like books, articles, cases, reports,
statues etc. The methodology used in this study is Doctrinal. It is based on the information and data
collected from secondary source. They include publication research, journals, historical information
of both past and present. When a research is concerned with legal problem, issue or question, it is
referred to as doctrinal, theoretical or pure legal research. Doctrinal research is a theoretical study
where mostly secondary sources of data are used to seek to answer one or two legal propositions or
questions or doctrines. Its scope is very narrow and there is no such need of field work.

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 RESEARCH

The Rationale of Article 20(3) to avoid miscarriage of justice

The privilege against self-incrimination was managed by the courts in consonance with the
principles of an adversarial legal system. The mid-18th and mid-19th centuries criminal trials viewed
the origins of this very privilege and other tools to the accused such as the “beyond-reasonable-
doubt” and “burden of proof” on the prosecution doctrines which equipped him with political
liberties that could be used as a defence in trial against the State, in a way minimizing the relative
disadvantage which the individual defendants would face, as compared to the trial resources of the
State.

The underlying rationale of the judicial provision against testimonial compulsion was well
recognized way prior than when our Constitution came into existence. The against self-incrimination
is best stated by the Court in Saunders v. United Kingdom6. This case explained that the right lies for
the protection of the accused by the improper compulsion of the respective authorities, thereby
contributing to avoid the miscarriages of justice.

Its said that ethics and reliability are the two pillars of the right against self-incrimination. The
ethical rationale for voluntariness addresses the need to protect the accused person from torture and
brutalization by investigation agencies and the police, the rationale is that if involuntary statements
were promptly given weightage during the trial, investigators would compel such statements, often
through methods involving coercion, threats, inducement or deception7. Even if such involuntary
statements are proved to be true and correct, the law should not incentivise the use of such
interrogation tactics that violate the dignity and bodily integrity of the person who is being
examined8. This situation is considered as a violation of basic human right. Hence, the right against
self-incrimination serves as a crucial safeguard against torture and other “third-degree methods” that
could be used to elicit information. It serves as a check on the police behaviour during the course of
investigation of an accused person.

6
(1997) 23 EHRR 313
7
Alschuler, Albert W- A Peculiar Privilege in Historical Perspective: The Right to remain silent, Michigan Law
Review 94(8), 1995, pp. 2625-2627
8
Selvi v. State of Karnataka, (2010) 7 SCC 263.

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The rejection of compelled testimony is significant or investigators will be more inclined to extract
information through such compulsion routinely rather than through the more difficult path of
collecting independent evidence. Another concern behind the right against self- incrimination is by
all accounts securing, wholly or partially an innocent person from making a false statement under
stress and thereby needlessly reinforcing the suspicion upon him or her. Similarly for the guilty, the
protection affords a shield from aggravating his or her offense by by deception or concealment of
evidence. The accused is also shielded from reading of motives into what evidence the person in
question may give.

There were several contrary views among the makers of the Constitution, but it was widely
accepted by those who devoted serious thought to it, that the simpler path of procuring evidence,
documentary or oral, by compulsion from a person who is accused would do more harm than good to
the administration of justice, it was felt that existence of this path would tend to discourage
investigators or prosecution to indulge in a diligent search for reliable independent evidence and also
furthermore discourage them to practice care while filtering through available proof for the
ascertainment of truth9. If law permitted evidence to be acquired by pressure, coercion, investigators
would never take up the onus of partaking in laborious investigation and prolonged examination of
other associated persons, material and documents. It has been said rightly that in the absence of the
privilege given against self-incrimination would incentivize those in charge of the enforcement of the
law to sit comfortable in the shade rather than go about in hunting up for evidence.

The privilege also serves the objective of unwavering quality10. When a individual associated
or charged with a crime is compelled to testify on his/ her own behalf through methods
involving coercion, threats or inducements during the investigative stage, there is a higher
probability of such testimony being false or distorted out of sheer despair, anxiety and fear.
Their mental status may serve as an impetus to offer evidence in order to maintain a distance
from the disagreeableness of the present circumstance and inconveniences that follow. Thus,
the involuntary statements from an accused person may amount to false testimony which is
probably going to misdirect the judge and the examiner, thereby impeding and vitiating the
process of trial, and potentially leading to a miscarriage of justice with unjust or unsuccessful
convictions. Even during the investigative stage, false statements are probably going to cause
deferrals and obstructions in the investigative efforts. Therefore, the privilege guarantees that
investigation agencies or the police do not take the simpler path of involuntary confessions to

9
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808
10
Michigan v. Tucker, 417 US 433 (1974)

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supersede the diligent route of meaningful investigations and that the dependability of the
testimony presented for examine is of a high order.

II
Sec. 34 of the Indian Evidence Act,1872 state regarding the voluntariness of confession

There is an exception to the hearsay rule that permits testimony regarding someone else's
confession to be admitted if the statement had a good enough tendency "to reveal the
declarant to civil or criminal liability". The study is that a sensible person would not make
such an untrue confession. In U.S. law, a confession must be wilfull in order to be admissible.
Confessions may feature in formal or informal preliminaries.
A confessions a statement, made by an individual or by a group of individuals,
acknowledging some personal fact that the person would intentionally prefer to keep hidden.
The term presumes that the speaker is giving information that he believes the other party is
not already aware of it, and is frequently together with an admission of an affirmation or
lawful wrong Not all admissions reveal bad behaviour, however. For e.g, a confession of
affection is very frequently considered positive both by the confessor and by the receiver of
the confession, and is a typical subject in literature. With respect to confessions of bad
behaviour, there are numerous specific kinds of admissions that have essentialness beyond
the social. A lawful confession involves an admission of some wrongdoing that has a lawful
outcome, while the idea of confession in religion varies widely across numerous belief
systems, and is typically increasingly likened to aritual by which the individual recognizes
contemplations or activities thought about corrupt or ethically wrong inside the limits of the
inquisitor's religion. In certain religions, admission appears as an oral correspondence to
someone else. Socially, however, the term may allude to affirmations that are neither
legitimately nor religiously significant.
The word “confession” shows up without precedent for Section 24 of the Indian Evidence
Act. This segment comes under the heading of Admission so it is clear that the admissions
are only one species of admission. Confession is not characterized in the Act. Mr. Justice
Stephen in his Digest of the law of Evidence characterizes confession as “confession is an
admission made at any time by a person charged with a crime stating or suggesting the
inference that he committed that crime.” In Pakala Narayan Swami v Emperor Lord Atkin 11

11
AIR 1939 PRIVY COUNCIL p.47

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observed An admission should either concede in terms the offence or at any rate generously
all the facts which establish the offence. A confirmation of a gravely incriminating reality,
even a decisively implicating fact is not in itself a confession”. In the case of Palvinder Kaur
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v State of Punjab the Supreme Court affirmed the Privy Council decision in Pakala
Narayana Swami case more than two scores.
Initially, that the definition if confession is that it should either concede the guilt in terms or
concede substantially all the real factors which establish the offence. Furthermore, that a
stirred up explanation which despite containing some confessional statement will still lead to
acquittal, is no confession. Hence, a statement that contains self-exculpatory issue which if
true would refute the issue or offence, cannot add up to confession.

III
Judicial confession
Are those which are made before a magistrate or in court in the due course of legal
proceedings. A legal confession has been defined to signify “plea of guilty or liable on
arrangement (made under the gaze of the court) if made freely by a person in a fit state of
mind.
Extra-judicial confessions
Are those which are made by the accused elsewhere than before a justice or in court. It is not
vital that the statements should have been directed to any definite individual. It may have
taken place in the form of a prayer and supplication. It may be a confession to a private
individual. An extra-judicial admission has been defined to mean a free and voluntary
confession of guilt by an accused of an offence over span of discussion with people other
than judge or justice captured of the charge against himself. A man after the commission of a
wrongdoing may compose a letter to his relation or companion communicating his sorrow
over the issue. This may add up to confession. Extra-judicial confession can be accepted and
acknowledged and can be the premise of a conviction if it passes the test of credibility. Extra-
judicial confession is usually made before an individual which incorporates even judicial
officer in his private limit. It additionally incorporates a magistrate not empowered to record
confessions under section 164 of the Cr.P.C. or a magistrate so empowered but getting the
confession at a stage when section 164 is not applicable.

12
1953 SCR 94

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 CONCLUSION

In perspective 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 denounced. It has been well established in the case of Nandini Sathpathy v. P.
L. Dani 13, that the Right to Silence has been granted to the accused person by virtue of the
pronouncement no one can forcibly extract statements from the accused, who has the
privilege be silent during the course of interrogation .By the administration of these tests,
forcible intrusion into one's mind is being restored to, thereby nullifying the legitimacy of the
Right to Silence.
Law is a living process, which changes according to the changes in needs of the society,
developments in science, and ethics and so on. The Legal System ought to soak up improvements
and advances that happen in science as long as they don't disregard essential lawful standards I,e do
not violate fundamental legal principles and are to benefit the general public. The framework of
criminal justice system should be based on impartial and equitable principles.

The Right against Self-Incrimination is ensured under the Constitution of India, though clear in its
wording, owing to equally compelling factors such as the State‘s interest in protection of law and
order, has failed to generate a set of concrete workable principles that a court can use to decide and
defend the result of particular cases. The maxim “Nemo Tenetur Seipsum accusare” meaning ,no
man is bound to accuse himself , its origin in a protest against the inquisitorial and manifestly unjust
methods of interrogation. An appropriate analysis of the this protection, and its implications on the
system of criminal justice vis-à-vis providing exceptions to this Right and its implications on
individual freedom will demand the very objective understanding of the ethical, scientific and legal
aspects of protection against Self-Incrimination.

Article 20(3) of our constitution is not attracted at all, and no inquiry of waiver can emerge,
regardless of whether the elements of the clause are not fulfilled e.g., where the accused is not
compelled on the evidence is not utilized against him. Henceforth, where the accused voluntarily
gives evidence of his own choice in lieu of an advantage, such an offer of pardon, there is no
compulsion and no violation of the clause at all. This privilege which can be waived is afforded by

13
AIR 1978 SC 102

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the fact that unless the accused can take the stand and waive his right the whole object of his going
into the box to demonstrate by proving his innocence would be defeated.

The protection under article 20 (3) is available only in proceedings which are of criminal nature
before a court of law or other tribunal before which a person may be accused of an offence in section
3(38) of the General clauses act, that is, an act punishable under the local law or penal code or a
special. The protection of article 20(3) would not apply to parties and witnesses in civil proceedings
other than criminal in nature.

It should be the obligation of the state to ensure that the rights of its citizens are protected and evach
individual gets an opportunity to a fair trial and objective application of laws which provide an
opportunity for creating a society which balances the clash of interests at various levels. The
individual State balance can be reached only by enabling the State in its endeavour of public order
and control of crime and at the same time placing clear and distinct limits upon such power. A
system of accountability and dispense of information giving force the public’s Right to Know are
indispensible features of such limits. Simultaneously, standards of quality, secrecy and security need
to be maintained.

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 RECOMMENDATION

A criminal law principle known as the corpus delicti rule provides that a confession, standing
alone, isn’t enough for a conviction. With its design of preventing wrongful convictions, the
rule implicitly acknowledges the phenomenon of false confessions. Some jurisdictions don’t
follow the corpus delicti rule exactly. Instead, their courts tend to focus not on whether
corroborating evidence shows that the crime occurred, but on whether the confession was
trustworthy or reliable.

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