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Report No. 180


In the Indian context, clause (3) of Article 20 of the Constitution of India guarantees a fundamental right against self incrimination. Article 21 grants a further fundamental right to life and liberty and states that the liberty of a person cannot be taken away except by a procedure laid down by the law. In Maneka Gandhi's case it was further interpreted that the procedure envisaged by Article 21 is a procedure which must be just, fair and equitable. The Criminal Procedure Code contains several protections. Sub section (2) of section 161 of the Code of Criminal Procedure, 1973 grants a right to silence during interrogation by police. It reads as follows:

"Section 161(2): Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have tendency to expose him to a criminal charge or to a penalty or forfeiture".

Sub section (3) of section 313 again protects this right to silence at the trial. It reads as follows:

"313(3): The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them"

Sub section (1) of section 315 contains a proviso and clause (b) of the said proviso precludes any comment by any of the parties or the court in regard to the failure of the accused to give evidence. It reads as follows:

"provided that-


(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the same trial."

The above provision also creates a presumption against guilt. In other words, section 161, 313 and 315 raise a presumption against guilt and in favour of innocence, grant a right to silence both at the stage of investigation and at the trial and also preclude any party or the court from commenting upon the silence. This is quite contrary to what the Australian law permits.

Under the Australian law the Court can make a comment on the silence but the prosecution cannot make any comment. Now the New South Wales Law Commission has, as stated earlier, recommended amendment of the law, to permit even the prosecution to comment on the silence of the accused. Our law in the Code of Criminal Procedure, 1973 is consistent with clause (3) of Article 20 of the Constitution and Article 21.

The earlier history of these provisions under the Criminal Procedure Code, 1898, is equally revealing. Durga Das Basu in his Commentary on Article 20 of the Constitution (see Silver Jubilee Edition Vol.D p. 46, 47) refers to this aspect. Section 342A of the Code of Criminal Procedure, 1898, as introduced in 1955 made it possible for the accused to testify on his own behalf and also stated that "his failure to give evidence shall not be made the subject of comment by any of the parties or the court". However, sub section (2) of section 342 of the said Code contained a provision which contradicted the above prohibition and read as follows:

"Section 342(2): The accused shall not render himself liable to punishment by refusing to answer questions or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks fit."

It will be seen that the itlicized* words in section 342(2) of the old Code permitted an inference to be drawn from the silence of the accused. This provision was not however repeated in the Code of 1973 and was dropped obviously because of the guarantee under clause (3) of Article 20 of the Constitution of India which came in to force in 1950. The provision was dropped presumably because it was contrary to the constitutional protection against self incrimination. In fact Basu points out (ibid p.46) that the "foregoing lacuna" in the 1898 Code, was commented upon by the author at p. 38 of Vol.2 of the previous Ed. of this Commentary in the following words

*. The word is "underlined"is the original text of the Report.

"To the author, it seems that it is due to oversight that the legislature did not omit the italicised words, while inserting section 342A in 1955; for, after the insertion of section 342A, the italicised words have, at least become anomalous. They are inconsistent with proviso (b) of section 342A; for, the object of both sections 342 and 342A as already explained is to offer an opportunity to explain anything incriminating in the evidence against him. If, therefore, no inference may be made from the failure of the accused to take hold of the opportunity offered under section 342A by volunteering to testify on his own behalf, why should such inference be permissible when the court questions him for the same purpose?

"Apart from the above statutory consideration, there is a constitutional implication if we take into account the observations of the dissenting Judges in Adamson v. California (1947) 332 US 46.....If you cannot compel an accused to make a statement against himself, you cannot draw any inference against him because he remains silent, since that would obviously oblige him to speak, rather than remain silent."

"To draw an adverse inference from the refusal to testify is indeed to punish a person who seeks to exercise his right under Article 20(3). Just as no inference of guilt can be made from the fact that the accused is invoking the protection of Article 20(3), so no inference of guilt can be made from the mere fact that he refuses to answer or to make a statement".

Basu now says (Silver Jubilee edition Vol. D p 47) that it is gratifying to note that in view of the above comments in the earlier edition of his work, the legislature while it introduced the 1973 Act, it omitted the words in the later part of section 340(2) of the old Act of 1898. Basu states:

"It is now clear, therefore, that the Court cannot draw any adverse inference against the accused from his silence or refusal to answer court questions, under any circumstances".

The right to silence has been considered by the Supreme Court of India in a three-Judge Bench in Nandini Satpati v. P.L. Dani 1978(2) SCC 424 where the Supreme Court followed the earlier English law and the judgment of the American Supreme Court in Miranda. Krishna Iyer J observed that the accused was entitled to keep his mouth shut and not answer any questions if the questions were likely to expose him to guilt. This protection was available before the trial and during the trial. The learned Judge observed as follows:

"Whether we consider the Talmudic Law or the Magna Carta, the Fifth Amendment, the provisions of other constitutions or Article 20(3), the driving force behind the refusal to permit forced self incrimination is the system of torture by investigators and courts from medieval times to modern days. Law is response to life and the English rule of the accused's privilege of silence may easily be traced as a sharp reaction to the Court of Star Chamber when selfincrimination was not regarded as wrongful. Indeed then the central feature of the criminal proceedings, as Holdsworth noted, was the examination of the accused."

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

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