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Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-10, 2016 ISSN: 2454-1362, http://www.onlinejournal.in

Self- Incrimination–Reviewing the Constitutional Protection

Anant Faujdar Student, LLM, Gujarat National Law University, Gandhinagar, Gujarat,

Abstract: As a general rule under the law against shall be clear in the minds of every advocate, every self-incrimination, an accused person cannot be researcher and every scholar while studying this compelled to be a witness against himself. This constitutional protection that it has to be evenly would mean that a person who is involved with or balanced in the interests of justice because it tends is about to be involved with criminal proceedings to curb any arbitrariness or compulsion in any form in any court, falls within this protection. At the at its very source. Let us now discuss the same time it also restricts the agencies of the constitutional provision which is the very basis of government fighting against crime in society. The this protection against self-incrimination: Article right not to incriminate oneself presupposes that 20(3). the prosecution in a criminal case seeks to prove their accused without resort to obtained 2. Interpretation of Article 20(3) Of through methods of coercion in defiance of the will of the accused. In this sense the right against self- incrimination is based on presumption of In order to understand the concept of self- innocence. The right not to incriminate oneself is incrimination we must understand the language of concerned, however, with respecting the will of an Article 20(3) of the Constitution of India. It reads accused. The question therefore arises how far this as follows: protection maybe granted? This article will provide you an insight into the concept of self-incrimination 2.1. Article 20(3) - No person accused of any and how the Constitution of India tends to provide offence shall be compelled to be a witness it as a fundamental right. Also it will help you to against himself. analyze the current situation in Indian Law Let us focus on the literal interpretation of the regarding protection against self-incrimination. clause-

Accused-an accused means a person who is 1. Introduction involved in the criminal proceedings or who has been alleged to have committed a criminal offence. The framers of the constitution, aware of the harsh Therefore it is necessary for a person to invoke experiences during British Raj, were concerned that protection under this article that he must have been states have a tendency to turn into dictatorship once involved with some criminal proceedings or given absolute powers. With this view draftsmen alleged to have committed an Offence. included a very important protection in the constitution guaranteed to every person against Compelled- the word compelled means duress, arbitrary state action -the protection against self- whether mental or physical as observed by the incrimination. It exists mainly to motivate the honorable courts. authorities to search for substantial evidence in course of investigation to discover the truth. If the To be a Witness- this expression has to be and prosecutor were relieved of this construed in light of the word ‘witness.’ A witness restriction, there would be a temptation "to sit means a person who furnishes any information to comfortably in the shade, rubbing into a poor the court based on his personal knowledge either devil's eyes, rather than go about in the sun.”[1] orally or in writing or through intelligible actions in case of dumb witness. Thus, it may be said that The apex court of India has been protection guaranteed under Article 20(3) is very innovative and lenient in the interpretation of specific to a person who is involved in criminal Article 20(3). Through a series of judgments proceedings and who cannot be compelled to be a spanning over a period of six decades the apex witness against himself. It means the person cannot court has established a settled law in this regard. It be forced to furnish any information which might

Imperial Journal of Interdisciplinary Research (IJIR) Page 323

Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-10, 2016 ISSN: 2454-1362, http://www.onlinejournal.in

incriminate him in the future or maybe used against statement, or to answer questions. A person against him in later stages of the proceedings. whom suspicions lay cannot legally be interrogated by justice as an ordinary witness. Offence- as provided under section 3 (38) of General Clauses Act, offence is an act punishable 3.5. Position in Australia under or any special or local In New South Wales, though the prosecution is law. expressly prohibited from commenting to the jury on the fact that the defendant did not give evidence, Before we further delve into the topic we must also the judge and any party (other than the prosecution) keep in mind that this protection against self- may comment to the jury if the defendant does not incrimination has been guaranteed as a adduce evidence. However, there are restrictions in fundamental Right and it means it cannot be the nature of comments which are permitted. Any withdrawn or taken away under any circumstances suggestion that the defendant did so because of a unless the context otherwise provide. The makers belief of guilt is prohibited. of the constitution were of the opinion that a person must not be denied any chance of justice which One important observation which is to be includes protecting oneself from arbitrariness of the mentioned here is that under Indian law the law enforcement agencies. protection extends only to a person who has already been involved in criminal proceedings 3. Comparison with other Constitutions against oneself and not merely any proceeding in which he may be involved for the purpose of Here it is interesting to compare the position in examination. However, this position has been India with the position in UK, USA, France and altered in a recent judgment by the Supreme Court Australia. A comparative study with other countries of India which we shall be discussing in the would give us an insight into the functioning of this following section. rule against self-incrimination which has different scope and application in different countries. 4. Important case laws 3.1. Position in UK In United Kingdom it is the fundamental principle 4.1. Ram Swarup vs. State & others [3] that the prosecution has to prove the guilt and the accused need not make any statement against his The Allahabad high court in this case held that the will. The Criminal Evidence Act, 1998 says that writings obtained by the court from accused under though the accused is competent to be a witness on section.73 of Evidence Act would not come within his own behalf, he cannot be compelled to give the expression ‘evidence’ as it would not be a evidence against himself. document produced for the inspection of the court 3.2. Position in USA and direction by court under section.73 of Evidence The Fifth Amendment to the Constitution of USA Act,1982 will not be hit by Article.20(3). adopts the principle as follows: No person…shall be compelled in any criminal case to be a witness 4.2. Kathu Kalu’s case [4] against himself. However an important point to It was held by majority opinion that the expression note here is that in American and Canadian courts ‘to be a witness’ may be equal to furnishing it is only after the Court comes to a finding of guilt evidence, oral or written. But in the larger sense of beyond reasonable doubt, that the accused can be the expression giving of thumb impression, asked if he has any explanation specimen writing or exposing a body part for the

purpose of identification are not included within 3.3. Position in India the expression ‘to be a witness’. In this case, The Supreme Court in one of the cases was of the disagreeing with its decision in the MP Sharma opinion that Article 20(3) is a humane article, a Case, the Supreme Court held that compelling an guarantee of dignity and integrity and of accused person to give his specimen handwriting, inviolability of the person and refusal to convert an signature or thumb impression to an investigating into an inquisitorial scheme of officer, was not compelling him to be a witness antagonistic ante-chamber of a police station. [2] against himself. What is forbidden was to compel a

person to say something from his personal 3.4. Position in France knowledge relating to the charge against him. The French Code of (Article. L116) makes it compulsory that when an investigating judge hears a , he must warn him that he has the right to remain silent, to make a

Imperial Journal of Interdisciplinary Research (IJIR) Page 324

Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-10, 2016 ISSN: 2454-1362, http://www.onlinejournal.in

4.3. Adamson vs. California [5] ongoing investigation or even in cases other than the one being investigated. The court was of the opinion that if you cannot compel an accused to make a statement against oneself, you cannot draw any inference against him because he remains silent, since that would oblige 5. Limitations him to speak rather than remain silent. Every fundamental right is subject to certain 4.4. M.P Sharma and others vs. Satish Chandra reasonable restrictions or some limitation. Thereby [6] meaning it is not absolute in the strict sense of word. The protection against self-incrimination is The guarantee under Article 20(3) would be also one such fundamental right. It can be said to available in the present cases to these petitioners have following limitations with regards to position against whom a First Information Report has been in India: recorded as accused therein. It would extend to any compulsory process for production of evidentiary 5.1. Available only to accused person-The documents which are reasonably likely to support a protection under Article 20(3) is available only prosecution against them. The question then that to a person who is accused at the time of arises next is whether search warrants for the compulsion being used against him. Protection seizure of such documents from the custody of would not be available if no accusation has these persons are unconstitutional and hence illegal been made against the person at the time when on the ground that in effect they are tantamount to compulsion is used against him. For example, compelled production of evidence. It is urged that when a sample is taken by a Sanitary Inspector both of a document and a from a milk vendor.[8] compelled production thereof on notice or summons serve the same purpose of being available as evidence in a prosecution against the 5.2. Mere witness in any other proceeding not person concerned, and that any other view would against him- If the person is a mere witness defeat or weaken the protection afforded by the against some other person in the proceeding guarantee of the fundamental right. This line of where he is sought to be examined, he cannot argument is not altogether without force and has claim the immunity, even though he might the apparent support of the Supreme Court of the have been accused in another proceeding.[9] United States of America in Boyd v. United States (116 U.S. 616.). 6. Concluding Remarks

4.5. Selvi vs. State of Karnataka [7] It is noteworthy to look into the interpretation of Article 20(3) from the point of view of a In this case it was held that subjecting the accused fundamental right. It guarantees to every accused to Narco Analysis, DNA profiling, polygraph and person an inalienable right against arbitrary state brain fingerprinting, without his or her consent, is action. Therefore it is only reasonable to interpret it violative of Article 20(3) as they are compulsory in light of that only. Often there is a restriction exposures of the accused. The Supreme Court imposed on governmental agencies for they cannot further observed that Section 156 and 161 of CrPC, compel a person to furnish any information which which give police officers the right to investigate might be used against him. Thus we may fairly say offences and orally examine any person acquainted that the scope of protection under Article 20(3) with the facts of the case, do not and cannot reaches to every person in a criminal proceeding override the constitutional protection given under against state compulsion to furnish any information Article 20(3). As mentioned at the earlier stage, the that might incriminate him in future. But this has to altered the previous stand be construed in such a manner that a balance is regarding extent of protection under Article 20(3). created between protection against arbitrariness and The apex court made following observations: necessary functioning of governmental agencies. For this the judiciary has to play a very important The right against self-incrimination protects: role. In the recent times the protection against self- incrimination in India has been interpreted by the 1. Persons who have been formally accused as well judiciary to include also. as those who are examined as in criminal cases.

2. Witnesses who apprehend that their answers would expose them to criminal charges in the

Imperial Journal of Interdisciplinary Research (IJIR) Page 325

Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-10, 2016 ISSN: 2454-1362, http://www.onlinejournal.in

7. Acknowledgment

This article has been compiled and completed with the help and guidance from my teachers.

8. References

[1]Stephen, History of 442 (1883) [2]Nandani Satpathy vs. P.L Dani AIR 1978 SC 1025 [3]AIR 1958 All 119 DB [4]AIR 1961 SC 1808 [5]1947 332 US 46 [6]AIR 1954 SC 300 [7]AIR 2010 SC 1974 [8]Mohanlal vs. Jabalpur Corporation AIR 1962 MP 17 [9]Damodar vs. Ram Chandra 1974 CrLJ 160 (paras, 7- 8) (AP) [10]Commentary on Constitution of India – Dr. Durga Das Basu, eighth edition, volume 3, 2008 [11] www.indiankanoon.org for judgments on relevant cases. [12]Law Commission of India, One Hundred Eightieth Report on Article 20(3) of the Constitution of India and Right to Silence, May 2002 [13]The Law Reform Commission of New South Wales, Ninety Fifth Report on Right to Silence, 1995

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