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Report No. 180


A survey of the current law in various countries reveals that in USA, Canada and India in view of the constitutional provisions against self incrimination the Courts have required the prosecution to prove guilt beyond reasonable doubt and there has been no encroachment whether at the stage of interrogation or trial, into the right to silence vested in the suspect or accused. It is only in UK that certain deviations have been made recently. The UK law of 1994 has not yet been tested under the Human Rights Act, 1998. No doubt, two cases have gone before the European Court and the said Court has laid down some conditions which must be satisfied before the Court or jury could take into consideration the silence of the accused.

Firstly, a prima facie case as to guilt has to be made out by the prosecution. Secondly, the suspect or the accused must have been given an opportunity to call an attorney when he was questioned. This has led to the further amendment in the UK law in 1999 permitting the suspect or accused to call for an attorney's assistance. But then fresh problems have arisen where the accused has relied upon the lawyer's advice to remain silent. In such cases, the Courts are resorting to the cross-examination of the accused as well as his lawyers.

A lawyer's wrong advice can lead to serious prejudice to the accused and this cannot be permitted. In the light of the above complications, criminal trials have become more complicated and the accused is having more grounds to question a verdict of guilt. In our view, it may not therefore be wise to introduce similar changes in our system. In fact, the New South Wales Law Commission has clearly recommended that provisions like sections 34, 36 and 37 which permit the Court or jury to draw inferences from the silence of the suspect or accused, should not be introduced into the statute in New South Wales.

But, unfortunately, N.S.W. Law Commission has recommended that the accused can be compelled to disclose various facts relating to his defence failing which the prosecution and the Court can make comment. In our view, this does not amount to a fair trial and indirectly violates the right against self-incrimination. The Australian Courts have not referred to any constitutional prohibitions.

On the other hand, the American and Canadian Courts have not permitted any inroads into the right to silence. While English and European Courts and the Australian Courts permit the jury and the Courts to take the silence into consideration before arriving at a finding of guilt beyond reasonable doubt,- of course, where a prima facie case is made out, and the accused is informed of his right to an attorney - the American and Canadian Courts prohibit silence being taken into consideration before arriving at a finding of guilt beyond reasonable doubt.

It is only after the Court comes to a finding of guilt beyond reasonable doubt, that the accused can be asked if he has any explanation. It is interesting that China has introduced a regulation in some regions which entitles an accused to remain silent. It is indeed rather surprising that when China is introducing this principle into its laws some democracies like UK & Australia are introducing laws deviating from the old tradition as to right to silence.

The law in India appears to be same as in USA and Canada. In view of the provisions of clause (3) of Article 20 and the requirement of a fair procedure under Article 21, and the provisions of ICCPR to which India is a party and taking into account the problems faced by the Courts in UK, we are firmly of the view that it will not only be impractical to introduce the changes which have been made in UK but any such changes will be contrary to the constitutional protections referred to above. In fact, the changes brought about in the Criminal Procedure Code, 1973 leaving out the certain provisions which were there in 1898 Code, appear to have been the result of the provisions of clause (3) of Article 20 and Article 21 of our Constitution.

We have reviewed the law in other countries as well as in India for the purpose of examining whether any amendments are necessary in the Code of Criminal Procedure, 1973. On a review, we find that no changes in the law relating to silence of the accused are necessary and if made, they will be ultra vires of Article 20(3) and Article 21 of the Constitution of India. We recommend accordingly.

Justice M. Jagannadha Rao

Dr. N.M. Ghatate

Dr. T.K. Vishwanathan
Member Secretary

Dated: 9.5.2002

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

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