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ANALYSIS OF THE FUNDAMENTAL RIGHT AGAINST SELF-INCRIMINATION AS PER ARTICLE 20(3) OF THE INDIAN CONSTITUTION
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ANALYSIS OF THE FUNDAMENTAL RIGHT
AGAINST SELF-INCRIMINATION AS PER ARTICLE 20(3) OF THE INDIAN CONSTITUTION
AUTHORED BY
- SAI VAISHNAV
ABSTRACT:
Right to silence is a legal principle
developed from the right to protection against self-incrimination under Article
20(3) of the Indian Constitution. Article 20(3) states “No person accused of any offence shall be
compelled to be a witness against himself”[1],
which extends to the person’s right to remain silent in the court. The legal
principle originates from the middle-ages in England, based on the legal maxim
of “nemo debet prodere ipsum” which means the privilege against
self-incrimination. The Right against self-incrimination (right to silence)
provided under Article 20(3) has been adopted based on the Fifth Amendment in
the United States of America, and contains similar language as in the latter. This
right provides that the prosecution or the State is burdened with proving the
guilt of the suspect, and the suspect is acknowledged as “innocent until
proven guilty”. The presumption that the
accused is innocent until proven guilty should not under any circumstance be cast
off solely based on the right to silence put into exercise by the suspect, as
such a claim would weaken or deteriorate the legal significance of the
presumption. Moreover, the prosecution has the obligation or the liability of
establishing and proving the guilt of the suspect by providing evidence, and
any deduction based upon the right to remain silent exercised by the accused
would be in contrast to the principle that the prosecution has to prove that
the accused is guilty, until then the person is innocent. The research
is aimed at analysing the development of the legal principle with the help of
judicial precedents.
Keywords: Self-incrimination, fundamental
right, right to silence.
INTRODUCTION
The right to silence/ right to remain
silent is developed under the right against self-incrimination, which in simple
terms means that a person cannot be compelled to be a witness against himself.
The legal principle originates from the middle-ages in England, based on the
legal maxim of “nemo debet prodere ipsum” which means the privilege
against self-incrimination. In the early sixteenth century it was established
by the English Courts of Star Chambers that the accused would have to take a
vow which would compel him or her to address any question posed to the person,
even without any legitimate charge. These were later nullified and the maxim of
nemo debet prodere ipsum was established. In the United States, the
Fifth Amendment to the Constitution provides “No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand jury, except
in cases arising in the land or naval forces, or in the militia, when in actual
service in time of war or public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation”[2].
This was ratified in 1791 with nine other articles as a part of the Bill of
Rights. India has adopted the right against self-incrimination and under that,
the right ton remain silent based on the Fifth Amendment of the Constitution of
the United States, and it is covered under Article 20(3) of the Indian
Constitution, which states that “No person accused of any offence shall be compelled to be a witness
against himself”. The right to remain silent in India results in the
prosecution being in a position to provide evidence to verify the guilt of the
suspect. The suspect is acknowledged by the Court as an innocent, until he or
she is proven guilty. Hence, only if the prosecution is able to establish the
guilt of the accused by providing facts, the accused would be declared guilty.
It also means that the accused has the right to remain silent if the
prosecution attempts to question the suspect ton obtain facts regarding the case.
The prosecution has the liability of establishing
the culpability of the defendant, and any deduction based upon the exercise of
the defendant’s right to not testify against himself would be in contrast to
the principle that the prosecution has to prove that the accused is guilty, and
until the guilt of the accused is proven, he or she is innocent in the eyes of
the law.
RESEARCH
OBJECTIVES:
The research focuses on the legal
principle of the Right to Silence as provided in Article 20(3) of the Constitution
of India, and the main objectives of the research are:
· To study the origin of the Right to
Silence and its application in various parts of the world.
· To study and analyse the development
of the principle in the U.S, England, and India, based on various case laws.
· To examine the principle of Right to
silence under the right against self-incrimination and highlight the various
facets as a result of the development of this principle.
RESEARCH QUESTIONS:
The research
has been conducted with focus on answering the following questions:
1. What is the foundation upon which the
principle has originated?
2. How has the Right to silence
developed in different nations, and how it has been applied?
3. How has the Indian Constitution interpreted
it and provided as a principle under the Right against self-incrimination?
4. Why is the right to silence an issue
for debate and what developments took place due to the conflicts?
RESEARCH METHODOLOGY:
The methodology adopted by the
researcher is doctrinal research, with the information being substantiated from
secondary sources such as existing statutes, case laws, journal articles and
reports, and other information from online databases and web portals. Doctrinal
research is the ideal methodology to study, analyse and present the topic of
right to silence.
LITERATURE
REVIEW:
There is a lot of literature
available pertaining to the Right to silence in the Indian Constitution,
Article 20(3), which deals with the right against self-incrimination, in the
form of journal articles, case laws, books, etc. The researcher has referred to
the following to facilitate in conducting the research:
The
benefits of a right to silence for the innocent[3]
is an article
written by Shmuel Leshem wherein he talks about how an innocent person who is
accused of committing any crime can benefit from using his or her right to
silence under the right against self-incrimination during a trial or an
interrogation. The author quotes from the judgement of the case Murphy v.
Waterfront Commission (1964)[4],
“the privilege [against self-incrimination], while sometimes a ‘shelter to the
guilty’, is often ‘a protection to the innocent’”. The right to silence is
considered as an essential principle pertaining to criminal proceedings. The
right suggests that the court or the jury should not reach a conclusion based
on the decision of the accused to stay silent, rather it should give the
judgement relying upon the evidence provided during the proceedings.
1. The
Effects of a Right to Silence[5]
written by Daniel J. Seidmann discusses that the court
must base its decision disregarding the suspect exercising his right to silence
and solely based on other evidence. The author mentions the case of Miranda
v. Arizona (1966) with regard to the court conditioning its verdict
considering the accused exercising his right to not answer the questions posed
and be silent. The author also talks about when the right to silence was
formalised in England in 1897, and was reduced to a level that permitted prosecutors
to draw certain inferences based on the decision of the suspect to remain
silent.
2. A
Peculiar Privilege in Historical Perspective: The Right to Remain Silent[6], a
journal article published under the Michigan Law Review and written by Albert
W. Alschuler highlights two viewpoints of the right to silence under the right
against self-incrimination. The Court states “the privilege is fulfilled
only when the person is guaranteed the ‘right to remain silent unless he
chooses to speak in the unfettered exercise of his own will’”.
3. The Right to Privacy[7] by Samuel D. Warren and Louis D.
Brandeis mentions that as per the common law, an individual would have
protection in person and property, however the definition, extent and nature of
such protection should be updated as the times go by. It is important that a
law or doctrine keeps developing based on various circumstances and case laws,
and as such has the right to silence been developed over the years.
4. Silence Rights[8] is a journal article published under
the Australian Indigenous Law Review, in which the writers David Dixon and Nicholas Cowdery talk about the
extent of right to silence as per Article 14 (3) (g) of the International
Government on Civil and Political Rights, as well as how the act is
acknowledged and protected under sections 89 and 122 of the Evidence Act and
Law Enforcement (Powers and Responsibilities) Act respectively. It also
discusses the contribution of the New South Wales Parliament’s contribution in
the development of the right in the form of the Evidence of Silence Act in
the United Kingdom and Australia. The Evidence of Silence Act is concerned with
protecting the suspect or the accused from answering to the questions posed by
the police at the time of interrogation and other proceedings.
5. The
Right to Silence: A Review of the Current Debate[9]
is a journal article written by Steven Greer, and
published in The Modern Law Review wherein the writer has provided information
with respect to abolishing or upholding the right to silence based on several
nations’ decisions regarding the right. The Government looked adamant on
abolishing the right in the United
Kingdom and Wales in the late 1990s or early 1991. Northern Ireland abolished
the right in 1988, however, some nations like Scotland decided not to interfere
with this issue for the meantime.
6. Miranda
v. Arizona (1966)[10]
is the landmark case which established that the Fifth
Amendment under the United States Constitution prohibits prosecutors from using
statements provided by the accused during interrogation as evidence under the
proceedings or the trial unless the prosecution can establish that the accused
or the suspect had been informed of his or her right to consult an attorney,
and the right to silence under the right against self-incrimination. The
prosecution is also burdened with proving that the accused was aware of these
rights and willingly waived those rights.
7. Nandini
Satpathy vs Dani (P.L.) And Anr. (1978)[11]
is another case which contributed to the development of the
right to silence under the right against self-incrimination. “The former Chief
Minister of Odisha had been accused of using her political influence to gain
wealth illegally, booked under Section 5(2) read with Section 5(1)(d) and (e) of
the Prevention of Corruption Act, 1988 along
with Section 161, 165, 120B and 109 of
the Indian Penal Code by the Deputy
Superintendent of Police, Vigilance, Cuttack”[12].
During the former CM’s
interrogation, she exercised her right to silence under Article 20(3) of the
Indian Constitution. One of the questions arising out of this issue was the
constitutional validity of Article 20(3). When not in trial, under police
custody, can the suspect resort to exercising his or her right to silence even
if those are questions which can potentially expose the suspect of committing
the crime he or she has been accused of. The court held that a person has the
right to exercise the fundamental right of right to silence despite being
outside of court or trial.
ORIGIN AND
HISTORY
Origin
The right against self-incrimination
originated in England in the middle-ages as the Star Chamber in the English
Courts scrapped the need for the suspect to take the vow which puts him in a
situation where he is liable to answer any question posed to him by the police
during interrogation or even the prosecution during the trial proceedings. The
elimination of this principle resulted in the right against self-incrimination
and right to silence based on the legal maxim of “nemo debet prodere ipsum”.
In England, thus, “the right to silence provided that the failure of an
accused person when questioned to mention some fact which afterwards he relies
on in his defence cannot found an inference that the explanation subsequently
advanced is untrue, for the accused has a right to remain silent.”[13]
The debate was studied and analysed upon, and the conclusion drawn was that not
only should the right to remain silent remain a crucial part in the justice or
judicial system in England and Wales, it should be further strengthened as
well.
Right to Silence in England
In the late 1990 and early 1991 there
was discussion regarding the abolition of the right to remain silent under the
right against self-incrimination. Northern Ireland had abolished the right in
1988, which led to the discussing taking place in England and Wales Meanwhile
Scotland decided not to interfere with the issue of abolishing the right to
silence. The decision by Northern Ireland drove a Home Office Working Group in
1989 to provide recommendation regarding the abolition of the right to remain
silent. Moreover, there was pressure from the police as well in favour of this
cause since it would help their work during interrogations. But the important
question which is in favour of the right to silence is that can an innocent
person be justified in not responding to the questions posed to him or her, if
under suspicion, can be provided as evidence in the Court of Law. The
Government came to the conclusion that it would be premature to abolish the
right to silence completely. The question in debate gave rise to a need to clarify
what exactly the right to remain silent is.[14]
However, in 1994, the British Parliament adopted the proposal of the Prime
Minister at the time, John Major, to curb or limit the right to silence
significantly. The updated new law gives the judges and the jury to consider
the suspect’s failure to answer a question posed during interrogation or the
refusal to testify in a trial as valid evidence. The groups advocating in
favour of the new law argued that this was an important need of the hour since
the right to remain silence was being exploited resulting in an advantage for
the suspects who have committed unlawful activities.[15]
Right against self-incrimination in
the U.S
The right to silence in America is
provided under the Fifth Amendment of the United States Constitution. The Right
to remain silent is developed in the United States on the basis of the landmark
case of Miranda v. Arizona[16]
which led to the establishment of the the Miranda rights. This landmark case involved an accused,
who upon hours of interrogation and coercion admitted to committing an offence
that he had been accused of. The officers had not informed the defendant of his
rights, which include his right to silence or not testify as a witness against
himself, as well as his right to call a lawyer. The court acknowledged the suspect’s
written admission during the trial over his demurral, and he was found guilty.
The Supreme Court established that the police had the liability or the
obligation of informing and advising the suspect of his rights, provided the
coercion involved in the interrogation process. It also provided that the
interrogation must terminate if the defendant/accused exercised his or her
right to remain silent or to consult an attorney. The Miranda v.
Arizona case prohibits the
use of any information provided by the suspect to the police during the time of
interrogation unless it can be established by the prosecutor that the
suspect/accused had been informed of his rights, including his right to remain
silent under the Fifth Amendment of the United States Constitution.
Twining v New Jersey[17] is an important case pertaining to
the right provided under the Fifth Amendment of the Constitution. Twining was a
bank director charged of committing fraud against a bank manager. During the
trial proceedings, Twining decided not to testify. The Court and the jury
considered this failure to testify as reasonable evidence and the defendant was
convicted. Twining appealed to the court that the jury’s verdict is violative
of his right against self-incrimination, which provides that the decision to
remain silent cannot be taken into account while passing the verdict or the
decision. The decision should be independent and disregarding of the on the
defendant’s decision right to remain silent under his right against
self-incrimination. Prior to the implementation
of the Fourteenth Amendment, the Bill
of Rights inclusive of
the Fifth Amendment, was inapplicable to state courts and was confined to
federal courts. The Supreme Court established that the right to silence
provided in the Fifth Amendment was applicable to case laws pertaining to federal
court only. The decision made in the
Twining v. New Jersey case was upheld later on in 1947 in the case of Adamson
v. California[18],
wherein Admiral Dewey Adamson was charged with murder, and upon questions
posed to him by the prosecution, he decided to not answer them under the Fifth
Amendment rights. However, the prosecution provided that refusal to testify can
be considered as admitting the guilt based on a California statute, and that
the jury should take this into consideration while deciding upon the judgement.
The attorney hired by Adamson appealed that this violates defendant’s right
against self-incrimination. The court decided that it would have been a breach
of the defendant’s rights if the case was fought in a federal court, and on the
basis of the Twining case, the court established that the right against
self-incrimination in this case is not violated and that the jury can base
their decision considering the refusal to testify as admission to guilt.
The
Twining v. New Jersey decision was overruled in 1964, in the case of Malloy
v. Hogan[19] which
established that the right against self-incrimination provided under the Fifth
Amendment is applicable in the State courts as well as federal courts. Malloy
was sentenced on the charge of unlawful gambling, and he had decided to not
testify against himself when he was released and under probation. The court
decided to keep him in jail until he testifies. However, this was appealed, and
the Court in a 5-4 decision provided that the American Constitution provided a
right under the fifth amendment which allows the defendant to stay silent and
not testify against himself in order to protect the suspect, and that the
prosecution has to establish the guilt by providing evidence, and it should be
independent of the statements made or the decision to remain silent by the
defendant.
RIGHT TO
SILENCE IN INDIA
The right to silence in India was
adopted on the basis of the Fifth Amendment of the Constitution of the United
States of America, and it dictates and defines the right against
self-incrimination. Article 20(3) of the Indian Constitution gives the right to
silence and the right against self-incrimination in India, and states that “No person accused of any offence shall be
compelled to be a witness against himself”.
Analysis
of the right to silence based on Case Laws
The
right to silence is a grey area in law which even though might be a boon for
the innocent, but can be used by guilty suspects to get away with the offence.
The case of Prahlad v. State of Rajasthan[20]
is a case in which the suspect was accused of raping and murdering an
8-year-old girl. The accused was charged with murder, as well as under POCSO,
however, due to the exercise of his right to silence, the suspect was relieved
of charges of POCSO due to inadequate evidence, and the right against
self-incrimination provides that the court cannot base its judgement upon the
refusal of the suspect to testify against himself or his decision to remin
silent.
The
important point of the right to remain silent is that the judgement should be
decided independent of the decision of the accused to not testify or remain
silent. However, the case of Ramnaresh v. State of Chhattisgarh[21]
established that the court has the liberty to take into account the silence of
the suspect and deduce reasonable inferences based on the decision of the
suspect to remain silent and not testify against himself. Similarly, in Munish Mubar v. State of Haryana[22] also it was dictated that the accused is obliged to answer
certain questions posed to him, irrespective of whether it would have an impact
on the judgement to be made by the court.
The Prahlad case showcase instances
where the court deviates from its stance. There is a need to scrutinize whether
Article 20(3) was decreed with the motive of providing the suspect with an
opportunity to answer incriminating circumstances regarding him. The court is
therefore allowed to deduce inferences only from answers provided with respect
to the incriminating circumstances and not his silence. Coming to a conclusion
and deductions on the basis of the silence of the accused breaches the
rationale behind not directing an oath to the accused while making statements
under Section 313. Article 20(3) of the Indian Constitution fortifies the right
to silence of the suspect, and drawing inferences or basing decisions or
judgements based on the silence of the accused would disregard and breach
Article 20(3).
In the case
of M.P Sharma v. Satish Chandra[23],
one of the issues was the violation of Article 20(3), the right against
self-incrimination. It was held that the Right against self-incrimination,
which extends to the right to silence, is not only available at the trial, but
even during investigation and interrogation.
CONCLUSION
Right to silence under the right
against self-incrimination is an essential principle to protect the
accused or the suspect from testifying against himself. Several debates have
taken place regarding whether this right is good or bad in terms of it being a
helpful tool for the actually guilty suspects in getting away with committing
an offence. These debates throughout the world in different nations across
different time periods has caused the development of the right in the various
Constitutions of the world. The Right to Silence gives rise to certain facets.
Firstly, the prosecution or the State is burdened with proving the guilt of the
suspect, and the suspect is acknowledged as “innocent until proven guilty”.
The presumption that the accused is innocent
until proven guilty should not under any circumstance be cast off solely based
on the right to silence put into exercise by the suspect, as such a claim would
weaken or deteriorate the legal significance of the presumption. Moreover, the
prosecution has the liability of establishing the culpability of the defendant,
and any deduction based upon the exercise of the defendant’s right to not
testify against himself would be in contrast to the principle that the
prosecution has to prove that the accused is guilty, and until the guilt of the
suspect is backed by evdience, he or she is innocent in the eyes of the law.
TABLE OF CASES:
|
S.
NO.
|
NAME OF THE CASE
|
CITATION
|
|
1.
|
Munish Mubar v. State of Haryana
|
10 SCC 257 (2012).
|
|
2.
|
M.P Sharma v.
Satish Chandra
|
1954 AIR 300
|
|
3.
|
Prahlad
v. State of Rajasthan
|
SCC
Online SC 2548 (2018).
|
|
4.
|
Murphy v. Waterfront Commission
|
378 U.S. 52 (1964).
|
|
5.
|
Miranda v. Arizona
|
384 U.S. 436 (1966).
|
|
6.
|
Twining v. New Jersey
|
211 U.S. 78 (1908).
|
|
7.
|
Adamson v. California
|
332 U.S. 46 (1947).
|
|
8.
|
Malloy v. Hogan
|
378 U.S. 1 (1964).
|
|
9.
|
Nandini Satpathy vs
Dani (P.L.) And Anr.
|
1978 AIR 1025
|
|
10.
|
Ramnaresh
v. State of Chhattisgarh
|
4 SCC 257 (2012).
|
|
|
||
[1] INDIA CONST. art. 20(3).
[2]CONST. OF THE UNITED STATES, amend.
V.
[3] Shmuel Leshem, The benefits of a right to silence for
the innocent, 41 THE
RAND JOURNAL OF ECONOMICS 398 (2010).
[4] Murphy v. Waterfront Commission 378 U.S. 52 (1964).
[5] Daniel J. Seidmann, The Effects
of a Right to Silence, 72(2) THE REVIEW OF ECONOMIC STUDIES, 593 (2005).
[6] Albert W. Alschuler, A Peculiar Privilege in Historical Perspective: The
Right to Remain Silent, 94(8) MICHIGAN LAW REVIEW, 2625 (1996).
[7] Samuel D. Warren
and Louis D. Brandeis, The Right to Privacy, 4(5) HARVARD LAW REVIEW,
193 (1890).
[8] David Dixon and Nicholas Cowdery, Silence
Rights, 17(1) AUSTRALIAN INDIGENOUS LAW REVIEW, 23 (2013).
[9] Steven Greer, The Right to Silence: A Review of the
Current Debate, 53(6)
THE MODERN LAW REVIEW, 709 (1990).
[10] Miranda v. Arizona 384 U.S. 436 (1966).
[11] Nandini Satpathy vs Dani (P.L.) And Anr. 1978 AIR 1025
[12] https://indiankanoon.org/doc/1938988/
(last visited Apr. 17, 2021).
[13] Steven Greer, “The Right to
Silence: A Review of the Current Debate”, 53(6) THE MODERN LAW REVIEW, 709
(1990).
[15] Gregory W. O’Reilly, “England Limits the Right to Silence
and Moves Towards an Inquisitorial System of Justice”, 85(2) THE JOURNAL OF CRIMINAL LAW
AND CRIMINALOGY, 402 (1994).
[16] Miranda v. Arizona 384 U.S. 436 (1966).
[17] Twining v. New Jersey 211 U.S. 78
(1908).
[18] Adamson v. California 332 U.S. 46 (1947).
[19] Malloy v. Hogan 378 U.S. 1 (1964).
[21] Ramnaresh v. State of Chhattisgarh 4 SCC
257 (2012).
[22] Munish Mubar v. State of Haryana 10 SCC
257 (2012).
[23] M.P Sharma v. Satish Chandra, 1954 AIR 300.
Article Information
ANALYSIS OF THE FUNDAMENTAL RIGHT AGAINST SELF-INCRIMINATION AS PER ARTICLE 20(3) OF THE INDIAN CONSTITUTION
Authors: SAI VAISHNAV
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/12/29
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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