M.P.

LAW COMMISSION

WINTER INTERNSHIP REPORT, 2021

ON THE TOPIC OF

“RIGHT TO SILENCE AND RIGHT AGAINST SELF

INCRIMINATION ALSO THE SCOPE AND EXTENT OF
RIGHT TO SILENCE AND ITS EXCEPTIONS IF ANY UNDER
THE LAW”

SUBMITTED BY
NITIN SONI
3RD YEAR STUDENT
DNLU, JABALPUR

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Table of Contents
INTRODUCTION................................................................................................................................. 3
Article 20(3) of the Indian Constitution .......................................................................................... 4
Ingredients Constituting the Provision ....................................................................................... 4
Right to Silence...................................................................................................................................... 6
Some of the particulars relating to right to silence are: ................................................................ 7
Scope and Extent of Right to Silence................................................................................................... 7
Exceptions to Right to Silence .............................................................................................................. 8
Law Related to Right to Silence in different countries ...................................................................... 9
U.S.A .................................................................................................................................................. 9
Britain .......................................................................................................................................... 10
Bibliography ........................................................................................................................................ 15

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INTRODUCTION
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.1 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.

1
Article 20 Indian Constitution.

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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 –

1.That the Accused is presumed to be innocent until proven guilty,

2.It is the duty of the prosecution to establish guilt, and

3.The accused cannot be forced to give a statement against his will.

Ingredients Constituting the Provision

This provision contains following ingredients:

a. The right to remain silent or against self-incrimination is available to the accused.

b. The right immunes a person from being a witness against himself.
c. It provides protection against such force which would result in him giving evidence
against himself.

Origin-

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.2

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

2
108th LAW COMMISSION REPORT ON ‘ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA AND RIGHT TO
SILENCE’ submitted on may 9, 2002 by Justice M. Jagannadha Rao.

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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 3

It was therefore 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 Maharashtra4 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

3
1978 SCR (3) 608
4
1967 SCR (3) 720

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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.

Right to Silence
The right of silence, which has emerged at both the pre-trial and trial stages, is underpinned by
the privilege against self-incrimination, and the broader notions of the rule of law espoused by
the liberal tradition. The consequence of this right proposes that one cannot be required to
answer a question that might tend to expose oneself to criminal conviction. 5 The presumption
of innocence has been constructed so as to require the prosecution to prove guilt. In theory
then, the criminal justice system should not tolerate methods of ëcompulsory interrogationí 6
such as those once associated with the Star Chamber.7 The right to silence is a procedural
protection for the individual against the power of the State with origins in revolutionary times
following the overthrow of the remains of clerical and monarchical absolutism in the middle
of the 17th century.8 In its modern incarnation, this right has been seen as fundamental to other
evidentiary principles. Aronson and Hunter comment: “It is that right which provides the
fundamental bases for the common law rules governing the admissibility and reception of
confessional evidence.”9

The civil liberties view is that the right to silence is fundamental to the principle that it is for
the prosecution to prove the guilt of the accused person beyond a reasonable doubt. Because
of this obligation, an accused person must be free to remain silent in the face of his or her
accusers.

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-

5
Henchliffe, ëThe Silent Accused at Trial - Consequences of an Accusedís Failure to Give Evidence in Australiaí
(1996) 19 University of Queensland Law Journal 137.
6
Ibid
7
Ibid
8
G Roberts, Evidence: Proof & Practice (1998) 178.
9
M Aronson and J Hunter, Litigation (5th ed, 1995) 326.

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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
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 particulars relating to right to silence are:

1. 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.

Scope and Extent of Right to Silence

The right to remain silent, before and during trial, could be seen as fundamental to the integrity
of the privilege against incriminating oneself, or otherwise exposing oneself to a threat of
penalty or liability. The right to silence applies at common law to all the various stages of
litigation. Thus, in the civil sphere it may be claimed in response to demands for discovery of
documents and to interrogatories, and it applies to demands for production of documents by
notice or subpoena. It does not however apply to seizure of documents by search warrant, or to
lawful demands for the production of what may be characterised as real or physical evidence,
such as samples of a suspect’s body. Many scholars confined the privilege against self-

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incrimination to judicial proceedings on the basis that only those proceedings involve an
obligation to testify at common law. Statutory provisions may in any event exclude the
privilege.

Exceptions to Right to Silence

It is initially necessary to bear in mind the difference between burden of proving an issue
(known as the legal or persuasive burden of proof), a burden which never shifts and the burden
of adducing credible evidence (known as evidential burden), which can go on shifting during
the trial. Several modern statutes, while maintaining the burden of proving a pleading or charge,
alter the evidential burden. For example, in a civil case, a plaintiff may have to prove that the
defendant, having borrowed money, is indebted to him but under Sec. 118 of the Negotiable
Instruments Act,10 the initial evidential burden is shifted to the defendant if he had executed a
negotiable instrument in favour of the plaintiff. This method of shifting evidential burden has
been resorted to in criminal cases too particularly where an accused is found in possession of
certain property which the law declares it illegal to possess, such as drugs or stolen property
etc. It is perfectly open to a legislature to shift the evidential burden. For example, under the
Prevention of Corruption Act, 198811 the evidential burden is shifted to an accused person from
whom unaccounted monies or properties disproportionate to his known sources of income are
recovered. Under the Excise and Customs laws, and laws relating to smuggling, such evidential
burden is initially imposed on the accused in certain circumstances, where the accused may be
having special knowledge about facts such as where contraband property is recovered from.
Such provisions have been challenged as violative of the principle against self-incrimination
but have been upheld in as much as there is no shift in the burden of proof on the charge which
lies on the State or the prosecution.

However, in recent times, the basic principle that the prosecution has to prove the charge of
guilt against the accused beyond reasonable doubt is being diluted by the legislature in several
statutes. This is contrary to basic rights concerning liberty. Glanville Williams, one of the
greatest jurists on criminal law has stated as follows:

“Where it is said that a defendant to a criminal charge is presumed to be innocent, what is really
meant is that the burden of proving his guilt is upon the prosecution……Unhappily, Parliament

10
Negotiable Instruments Act, 1881
11
Prevention of Corruption Act, 1988

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regards the principle with indifference – one might almost say, with contempt. The Statute
Book contains many offences in which the burden of proving his innocence is cast on the
accused…….The sad thing is that there has never been any reason or expediency for these
departures from the cherished principle; it has been done through carelessness and lack of
subtleties.”12

Law Related to Right to Silence in different countries

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.

However, American courts, have laid down a different principle, namely that, at a latter stage
the silence of the accused can be taken into consideration by the court while deciding about the
quantum of punishment. Such questions arise during plea bargaining. The Court said that the
pressure to take the ‘stand’ in response to the ‘sentencing issue’ was not so great as to impair
the policies underlying the self-incrimination clause. Similarly a notice by defendant regarding
a plea of alibi does not offend the 32 right against self-incrimination.13

Even in Miranda Vs. Arizona (1966) 384 US 436, it was held that the police have to give a
warning to the suspect and that the suspect has a right to remain silent. He has a further right
to the presence of an attorney during questioning. It is also important to note that the US
Supreme Court has nowhere laid down that on account of the silence of the accused, an adverse
inference can be drawn or that the silence can be treated as a piece of corroboration for inferring
of guilt.

12
Glanville Williams, The Proof of Guilt (1963, 3rd Ed., Stevans pp 184-185)
13
“The Constitution and the Criminal Procedure, First Principles” by Prof. Akhil Amar, Yale University, USA

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Britain
Initially in England, the law-makers were confronted with problems of terrorism in Northern
Ireland. In order to combat the said problem, the Criminal Evidence (Northern Ireland) Order,
1988 was amended permitting inferences to be drawn from the silence of an accused where the
accused had a duty to speak. Later on, similar changes were carried out in the English law by
enacting sections 34 to 37 in the Criminal Justice and Public Order Act, 1994. 14 These
provisions permit ‘proper inferences’ to be drawn from the silence of the suspect during
interrogation or of the accused at the trial. The Court can comment on the silence in its summing
up to the jury. The jury can take the silence into consideration.

If therefore, no presumption can be raised on account of the silence of the accused unless a
prima-facie case of guilt has been established by the prosecution, it is difficult to see, and
several jurists have also stated similarly, that there is no extra advantage in permitting the judge
to rely on the silence of the accused. Further, while the amendment to the English law has made
a provision for raising “proper inferences”, the European Court in Murray Vs. UK has reduced
its rigour by limiting the use of the silence for the limited purpose of an assurance or
corroboration and that too, provided the accused was informed of his right to have a lawyer by
his side at the time of the questioning. But, according to the House of Lords and the European
Court, silence of the accused enters into the decision-making process before arriving at a
finding that the accused is guilty beyond reasonable doubt. 15

Australia

In New South Wales, though the prosecution is expressly prohibited from commenting to the
jury on the fact that the defendant did not give evidence, the judge and any party (other than
the prosecution) may comment to the jury if the defendant does not adduce evidence. However,
there are restrictions in the nature of comments which are permitted. Any suggestion that the
defendant did so because of a belief of guilt is prohibited.

The question as to the limits of the right to silence indeed arose in Weissensteiner vs. The
Queen (1993)16. In that case, which arose from Queensland, by majority of four against three,

14
Criminal Justice and Public Order Act, 1994.
15
Supra note 2.
16
Weissensteiner vs. The Queen (1993),178 Com Law Rep 217

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Mason CJ, Brennan, Deane, Dawson and Toohey JJ upheld the trial judge’s direction to the
jury that an inference of guilt could be drawn if the defendant elected not to give evidence
about facts which must have been within his special knowledge. They further held that adverse
inference could be drawn from a defendant’s election not to testify where the evidence
established a prima facie case, and that the “silence” could then go into the evaluation of the
evidence before the court. The majority, however, admitted that mere failure to testify, was not
evidence of guilt and that silence could not fill up gaps in the evidence. The judge was bound
to inform the jury that the defendant was entitled to remain silent and that there could be good
reasons for his silence which was unrelated to his guilt.

The N.S.W. Commission, in the body of the Report, recommended as follows: “The
Commission recommends that prohibition on prosecution comment in sec. 20(2) as Evidence
Act 1995 (NSW) should be removed. Prosecutors should be permitted to comment upon the
fact that the defendant has not given evidence, subject to the restrictions which apply to
comment by the trial judge and counsel for the defendant and any accused. The prosecution
should be required to apply for leave before commenting.”

As already stated, we are of the view that the above procedure is not a fair procedure. The law
relating to prosecution in Australia, in our view, does not conform to the minimum standards
prescribed by the ICCPR. Unfortunately, even the right of the accused to speak out has been
abolished.

Canada

We shall next refer to the judgment of Canadian Supreme Court in R Vs. Noble (1997) 17. The
majority in that case held that the right to silence is absolute and the silence of an accused
cannot lead to any adverse inference against him nor be used for the purpose of arriving at a
finding of guilt beyond reasonable doubt.

Section 11(c) of the Canadian Charter of Rights and Freedoms provides that any person
charged with an offence has a right not to be compelled to be a witness in proceedings against
him in respect of an offence. Section 7 of the Charter also states that every person has the right

17
R Vs. Noble (1997), (1) SCR 874.

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to life, liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice. Section 11(d) codifies the common law
presumption of innocence and the right to a fair trial.

Section 4(6) of the Canadian Evidence Act 1985, 18 provides as follows: “Section 4(6). The
failure of the person charged or of the wife or husband of that person to testify shall not be
made the subject of comment by the Judge or by counsel for the prosecution.”

In the above case, the judgment for the majority was pronounced by Sopinka J who observed
that the right to silence was a fundamental principle of justice incorporated into sec. 7 of the
Canadian Charter and that sec. 11(c) referred to the non-compellability of a person to be a
witness against himself.

Sopinka J further observed that silence was not either inculpatory or exculpatory. Silence could
however confirm a finding of guilt already arrived at independently on the basis of the evidence
led by the prosecution. Silence may indicate that the accused has not put forward any
explanation or evidence to contradict or negative the evidence produced by the prosecution to
prove guilt beyond reasonable doubt. In this limited sense, silence may be used but if there is
a rational explanation which is consistent with innocence and which may raise a reasonable
doubt, then silence cannot be used to remove that doubt. The admissible uses of silence arise
only after the trier of fact has reached the belief of guilt beyond reasonable doubt and therefore
silence indeed is “superfluous”.

Finally, Sopinka J observed: “I would therefore conclude that courts should generally avoid
using the potentially confusing term ‘inference’ in discussing the silence of the accused.
“Inference” could be taken to indicate that the trier of fact used silence to help establish the
case for the guilt beyond reasonable which is not permissible use of silence. Indeed, because
of the potential for confusion, discussion of the silence of the accused should be generally
avoided. However where silence is mentioned by the trial Judge as confirmatory of guilt, given
the totality of evidence, but not as a “make-weight”, there is no reversible error.” 19

18
Canadian Evidence Act 1985
19
Supra note 17

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It will thus be seen that according to the Canadian view it would be an error of law if the court
directs the Jury to take into consideration the silence of the accused for arriving at a decision
on the guilt of the accused. On the other hand, we have seen that the English view and the view
of the European Court particularly in Condron’s case is just the opposite. It is held there that
the jury can be asked to take the silence into consideration for arriving at a decision on the guilt
of the accused.

Conclusion

Right to silence is a longstanding fundamental human right recognized by legislatures across

the globe. However, its implementation differs in various countries and the set of principles
and beliefs that they adhere to. Due process embodies the principles of liberalism. Indian
judiciary adheres to due process and, thereby, propounds liberalism. The constitutional
guarantee under Article 20(3) of the Constitution, reinforces the right to silence of the accused.
The practice of drawing an adverse inference from the accused exercising his right to silence
would amount to testimonial compulsion and would contravene Article 20(3). The Constitution
of India raises the rule against self-incrimination to the status of constitutional prohibition. The
prohibitions imposed by Article 20(3) are directly relevant to the criminal procedure during
investigation by police and trial before court. The purpose of this protection is to prevent torture
and inhuman treatment of the accused at the hands of investigating agencies to extort
confessions.

The aim of administrative investigation is not only to find out facts, but also to collect evidence
on which a prosecution may be bound later. As for example, in the Maneck Phiroze case, the
inspector making the investigation was told to bear in mind that for a successful prosecution
the evidence in support of a charge must be clear, tangible and cogent. The obvious implication
of this direction were that he should fish out evidence against the person concerned which may
be of probative value in criminal proceeding to be launched subsequently. This means that what
cannot be achieved through a formal criminal proceeding can be used against the person
concerned which formally prosecuted later in a criminal court. From this point of view, the
privilege against self - incrimination loses much of its efficacy in this era of growth of
administrative process.

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Hence the point is that, by enacting provision like Article 20 (3) in Constitution which is
considered to be the supreme law of the nation is not enough even not only that but the
substance of right and privilege is also not the issue, as right are always considered to be the
focal point to be calculated first. The issue is to whom this right to be given or who is eligible
under this right. If this provision is kept for the interpretation at a broader concept than there
are possibility of being misused frequently by the accused and witnesses, by taking the
deference of their right enshrined under chapter of fundamental right. The better option may
be these cases are to be checked properly at pre- trial stages with all reasonableness and remove
this silence of lamb.

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.

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Bibliography

1. M.P.Jain, Indian Constitutional Law Fifth Edition 2008, Wadhwa and

Company, Nagpur.

2. J.N.Pandey, The Constitution Law of India Forty Fifth Edition 2008,

Central Law Agency, Allahabad.

3. 108th LAW COMMISSION REPORT ON ‘ARTICLE 20 (3) OF THE

CONSTITUTION OF INDIA AND RIGHT TO SILENCE’ submitted on
may 9, 2002 by Justice M. Jagannadha Rao.

4. D.D.Basu, Shorter Constitution of India.

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