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Report No. 180


In The United States, the Fifth Amendment relates to the fundamental right against self incrimination and contains, more or less, the same language as in Article 20(3) of our Constitution. In fact, there is a federal statute of 1878 which declared that it would be competent for an accused to give evidence on his own behalf but that his failure to do so shall not be subject 31 to any unfavourable inference against him. Initially, in Adamson v. California (1947) 332 US 46, the question relating to the right to silence came to be considered. The majority did not refer to the Fifth Amendment.

But the minority laid down, while referring to the Fifth Amendment, that the right to silence was absolute in US. Subsequently, in Griffin v. California (1965) 380 US 609, the Supreme Court of United States refused to permit prosecuratorial or judicial comment to the jury upon a defendant's refusal to take the 'stand' in his own behalf, because such comment was a "penalty imposed by courts for exercising a constitutional privilege" and it "cuts down on the privilege by making its assertion costly".

The penalty "needlessly encouraged" a waiver of the defendant's Fifth Amendment right to plead not guilty. The Court has stated that the defendant has an absolute right not to take the "stand" and that no adverse inference of guilt can be drawn if the defendant exercises his right to silence. An innocent defendant may want to avoid taking the "stand" because he feels that he is likely to perform badly, being uninformed about the law as compared to an experienced prosecutor who is skilled in the artificial rules governing court rooms and that the prosecutor may be able to trip him up.

However, American courts, have laid down a different principle, namely that, at a latter stage the silence of the accused can be taken into consideration by the court while deciding about the quantum of punishment. Such questions arise during plea bargaining. The Court said that the pressure to take the 'stand' in response to the 'sentencing issue' was not so great as to impair the policies underlying the self-incrimination clause. Similarly a notice by defendant regarding a plea of alibi does not offend the right against self-incrimination. (see "The Constitution and the Criminal Procedure, First Principles" by Prof. Akhil Amar, Yale University, USA).

Even in Miranda v. Arizona (1966) 384 US 436, it was held that the police have to give a warning to the suspect and that the suspect has a right to remain silent. He has a further right to the presence of an attorney during questioning. It is also important to note that the US Supreme Court has nowhere laid down that on account of the silence of the accused, an adverse inference can be drawn or that the silence can be treated as a piece of corroboration for inferring of guilt.

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

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