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Report No. 180

Report on Article 20(3) of The Constitution of India and The Right to Silence

"throughout the web of English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt" (per Viscount Sankey). (Woolmington v. DPP, 1935 AC 462 at 481). The 'right to silence' is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.

The origins of right to silence may not be exactly clear but the right goes back to the middle ages in England. During the 16th century, the English Courts of Star Chamber and High Commission developed the practice of compelling suspects to take an oath known as the "ex-officio oath" and, the accused had to answer questions, without even a formal charge, put by the judge and the prosecutor. If a person refused to take oath, he could be tortured. These Star Chambers and Commissions were later abolished. The right to silence is based on the principle 'nemo debet prodere ipsum', the privilege against self-incrimination.

Wigmore regarded the principle of silence as having crept into the common law almost by accident in the mid-seventeenth century following the collapse of the political courts of Star Chamber and Commissions. Once the right was established, the right of the accused was extended to witnesses and to allegations of crime and to civil litigation. Wood and Crawford have argued that the device can be attributed to the widespread hostility aroused by compulsory testimony upon oath. They maintain that the right emerged in England as a basic democratic right established by public agitation long before it became the subject of judicial consideration.

The second theory, offered by Maguire and Levy, traces the 'privilege against self-4 incrimination' to the English common law criminal procedure in the middle ages. Both Levy and Maguire agree with Wigmore that the right was extended later to witnesses in a criminal case and to allegations of crime made in civil proceedings. Mc Nair has a third view that the above authors have put "the cart before the horse". The privilege originated in Roman Common Law, applying first to witnesses and to allegations of crime in civil proceedings before it was extended to the accused in criminal law. The Criminal Law Revision Committee (UK) said in 1972 in its 11th Report that the principle did not emerge until the 19th century. (see 'The Right to Silence: A Review of the Current Debate) (1990) Vol. 53 Mod L Rev p. 709).

The 16th and 17th centuries show that the privilege against selfincrimination was closely related to the medieval version, which was involved in the protection against religious intolerance. In England, prerogative courts such as the Star Chamber and the High Commission and ecclesiastical courts used the oath ex-officio. In this procedure, any person on the street could be picked up, asked to take oath and answer questions for finding out if they were in disagreement on questions of theology with the Crown. The Privy Council on a motion from the House of Commons asked Coke and Chief Justice Popham when the oath could properly be administered.

They replied, "No Man shall be examined upon secret thoughts of his Heart, or of his secret opinion": (see "An Oath before an Ecclesiastical Judge ex-Officio", 12 Coke's Rep 26 (3rd Ed, 1727). The Long Parliament abolished the Star Chamber and High Commissions and forbade ecclesiastical courts to use the oath ex-officio. (see "Origins of the Privilege against Self-incrimination": by R.H. Helmhotz 65. New York 5 Univ. Law Rev 962 (1990); Michael R.T. Mc Nair, "The Early Development of the Privilege against self-incrimination": 10 Oxford J. of Legal Studies, 66 (1990); Eben Moglen, Taking the Fiflt: Reconsidering the origins of the Constitutional Privilege against Self Incrimination 92, Mich L. Rev. 1086 (1994). (quoted at pp 216-217 by Prof. Akhil Reed Amar in his 'The Constitution and Criminal Procedure, First Principles' 1999, Yale University Press).

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 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 aspects relating to right to silence came to be included in the Universal Declaration of Human Rights, 1948. Article 11.1 thereof reads:

"11.1 Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

The International Covenant on Civil and Political Rights, 1966 to which India is a party states in Article 9.1 that none shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law; Article 9.2 states that any one who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Article 11.3 refers to the right to be produced in a Court promptly and for a trial. Article 14(3)(g) refers to various "minimum guarantees" and states that everyone has a right:

"Article 14(3)(g): Not to be compelled to testify against himself or to confess guilt."

The European Convention for the Protection of Human Rights and Fundamental Freedoms states in Article 6(1) that every person charged has a right to a 'fair' trial and Article 6(2) thereof states:

"Article 6(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

In India, the right against self incrimination is incorporated in clause (3) of Article 20 and after Maneka Gandhi's case: (1978 (1) SCC 248), Article 21 requires a fair, just and equitable procedure to be followed in criminal cases. 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 Section 118 of the Negotiable Instruments Act, 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, 1988 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 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."

(see Glanville Williams, The Proof of Guilt (1963, 3rd Ed., Stevans pp 184-185).

It is in the above background and in the light of the constitutional provisions in our Constitution that we propose to consider whether any changes in the right to silence is necessary and whether, even if made, whether such changes will be valid.

We shall refer to certain recent developments in other countries.



Report on Article 20(3) of the Constitution of India and the Right to Silence Back




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