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, India 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 evidence obtained 2. Interpretation of Article 20(3) Of through methods of coercion in defiance of the will Constitution of India 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 police 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 Indian Penal Code 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 adversarial system 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 Criminal Procedure (Article. L116) makes it compulsory that when an investigating judge hears a suspect, 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.