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Article 20(3): Right Against Self-Incrimination

'Justice is the sum of all moral duty' by William Godwin.

The right against self-incrimination was found in the law of Roman Church in the Latin maxim of 'Nemon tenetur se ipsum accusare,' this means 'No man is obliged to accuse himself.' This right was one of the fundamental rights of the British from where the US adopted it as 'no person shall be compelled in any case to be witness against himself.'

And then thus was adopted by the constitution makers of our country and incorporated it as Right against Self- incrimination in article 20(3). Article 20(3) of the Indian constitution provides that no person accused of any offence will be compelled to be a witness against himself. There must be no compulsion on the part of any authority upon the accused of any sort.[1]

This right is also known as 'Right to silence.' It was adopted from the fifth amendment of the US constitution and was incorporated in our constitution through Forty-fourth Amendment. These right states that no citizen can be compelled to be a witness against himself. It is said that the guilt of the defendant must be proved without him testifying against himself, it is the duty of the state or the prosecution to prove the point.

While exercising this right, the defendant can refuse to answer the questions which he thinks can incriminate him, this is called 'taking the fifth.' But this right is only available to the person who is accused of the offence and not the other witnesses, the others cannot refuse to appear or answer and claim such right. But in America, this is quite the opposite, witnesses also enjoy the right to self-incrimination. Section 161(2) of C.r.P.C also gives the right to the accused to remain silent.[2]

History and Origin
Under the British Law, the doctrine of self-incrimination was first seen. The accused firstly was not competent to give evidence, later this rule was changed and the accused could now choose to waive this right.[3] The practice adopted by the Star Chambers for examining the accused after

the administration of oath led to the development of this right.
The oath administered resulted in:
  1. If the person refuses the oath, it would amount to contempt.
  2. If after taking the oath, and telling the truth, it was found heretical, then the person was charged with death penalty.
  3. If the person after taking the oath, told a lie, he was charged with death.[4]
This practice was highly condemned and challenged before the court of law. Then with the parliamentary intervention, the Star Chambers was abolished and the practice of oaths abandoned. This doctrine was then adopted by the US constitution based on the principles of common law. The essentiality of this doctrine can be seen in the case Brown v. Walker (1896) [5]. After the independence of India, the constitution framers also wanted to adopt certain principles of common law and American law that can be beneficial for the countrymen. Thus, they embodied this doctrine in the Part III of the constitution of India under the heading, Fundamental rights.

The fifth amendment covers all the written as well as oral evidence, which are incriminatory among themselves. It provides a privilege to the accused to not to answer or to remain silent in the proceedings (criminal in nature) which the accused thinks, answering them could incriminate him.[6]

This right of silence dates to 17th Century. One of the milestones of common law, according to it, no accused can be compelled to answer any question or produce any document which is of such nature as it can incriminate him.[7]

Section 25 of the Indian Evidence Act, 1872 also talks about the doctrine in a sense, it provides that 'No confession made to a police officer shall be proved against a person accused of an offence' Section 27 also provides for the extent to which the statement made by the person may be proved while being in the police custody. Section 161(2) of C.r.P.C gives the right to the accused to remain silent. This doctrine is also recognized as a part of Article 21 (right to life and personal liberty).[8]

Rationale of Article 20(3):
The rationale against the testimonial compulsion was much recognized and well stated in the case of Saunders v. United Kingdom (1997) [9], the court observed that there must exist a right for the accused to protect him against the compulsion of the powerful authorities.

Exclusion of compulsion is very important to avoid the miscarriage of justice, another thing to note is that under stress, it is likely that the accused gives a false statement even though he is innocent. Thus, there arises several other factors which are taken into consideration by this doctrine.

This doctrine also serves the goal of reliability. When a person who is charged for an offence is compelled to testify the methods involved can be coercion, threats, etc. which could arise fear and anxiety and can result in false statements, which can mislead the entire case and cause miscarriage of justice. Thus, this privilege ensures that there is no use of compulsion and no accused is compelled to testify against himself.

Under the Indian context, this privilege is provided under article 20(3) acts as an umbrella to protect the accused from the testimonial or any kind of compulsion. It is assumed that, it is the duty of the state to prove that the crime was committed by the accused and not the accused to himself prove him to be guilty of offence. Another assumption is that the accused is presumed to be guilty until and unless proven guilty and lastly, an accused cannot be compelled to be a witness against himself, he has the right to remain silent.[10]

The Indian Constitution under article 20(3) guarantees the fundamental right to the citizen and article 21 deals with the right of life and liberty states that every person has the right to life and personal liberty which cannot be abridged except by the procedure established by law. [11]

There is the provision regarding this doctrine in the C.r.P.C as well, under section 313 (3) which provides that the accused will not be liable for any punishment if he refuses to answer any question or gives false statements.[12]

  1. Person who is accused of an offence.
  2. Protection against compulsion.
  3. Such compulsion which could testify him against himself.
Accused of an offence:
A person is said to be an accused, when a formal accusation against him has been raised in a prosecution. 'Formal accusation' can be brought against any person by lodging of an F.I.R or a formal complaint filed under an appropriate authority which accuses him of the crime. The accusation that is made must be in a criminal prosecution before a court or any judicial tribunal where the person is charged with the offence under Indian Penal Code, 1860 or any local law. It is not necessary that the actual trial or inquiry have been commenced, on making a formal accusation the person can avail the privilege of Article 20(3). It also cannot be claimed by the person who was not an accused before but became one afterwards.[13]

In M.P. Sharma v. Satish Chandra (1954) [14], the court held that only such person can avail the right under article 20(3) whose name is mentioned in the F.I.R. This right is available at both the trial and pre-trial stage, that is even during the stage of investigation conducted by the police.

Another important case is of Nandini Satpathy v. P.L. Dani (1978) [15], the appellant was the former chief minister of Orissa, against whom a case was registered under the Prevention of Corruption Act, 1947. When the interrogation started, several questions were asked, she refused to answer and claimed the right of article 20(3). The Court held that this right is available even during the stage of police investigation. Also, the court held that the right to silence also extends to other offences pending against her which is of such nature that can incriminate her.

In the case of Balasaheb v. State of Maharashtra (1994) [16], the court held that an accused who is also the witness in a police case under the same incident, cannot claim the privilege under article 20(3). But can refuse to answer questions which are likely to incriminate him.

Thus, it can be said that, to avail the right under this article, a person must be an accused and for which a formal accusation must be levelled against him. Accusation can be made in the form of any formal document or by the way of notice served to that person.

Protection against Compulsion:
In M.P Sharma case, the court gave interpretation of the term, 'to be a witness' which includes all the documentary, oral and testimonial evidence. The testimonial compulsion covered is not only that is obtained in the court but also obtained earlier. There lies a difference between 'to be a witness' and 'furnishing evidence.'

'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or statement in writing made or given in court or otherwise while furnishing evidence means the production of some document that might be relevant to the case. Thus, giving of impression of thumb, foot, palm or fingers or handwriting sample are not to be covered by the expression 'to be a witness' under article 20(3).

It is also stated that a person can become a witness not just by providing oral evidence but also by providing documentary evidences or by making intelligible gestures if the person is dumb. The term 'compulsion' can only take into consideration when the person is being compelled to be a witness against himself by any means. Compulsion also means 'duress,' it can be physical or mental.

In the above stated case, the supreme court also made a distinction between a person compelled to do any volitional act and anything obtained from him without any volitional act on his part. The right is only available for the former and not the latter stated fact.

For e.g.: A compulsory notice is issued or a penalty is imposed on the person if he does not produce the required document. This is compulsion. Whereas, some necessary documents were acquired by the policy during search, the person cannot claim the right here.[17]

Testimonial Compulsion
It is stated that this right is a guarantee against the testimonial compulsion which can be claimed by a person, if it can be used as evidence against him.

In the case of M.P Sharma, every positive volitional act which furnishes evidence is testimony, and the compulsion regarding it, is coercion. 'To be a witness' is the term used in article 20(3) and not 'appear as witness'. The compulsion is not only restrained till the court room, but can also appear before as well.

Production of documents compulsorily
This doctrine is extended to the compulsory production of the documents that are of such nature that can prosecute the person.

In M.P Sharma case involves a wider description of evidences; it includes not only written statements of the accused but also any documentary evidence that it taken through compulsion. This right can be availed when the person is compelled to produce s such documents that can prosecute him.

Another case was that of State of Bombay v. Kathi Kalu Oghad (1961) [18], where all the documentary evidences were narrowed down to written statements. It was held that the person accused cannot be compelled to produce such documents. But this privilege will not extend to the production of documents such as specimen of handwriting or document that can incriminate another person.

Also, if by deception the statements are tape recorded and the accused is unaware of it, then it will not be considered under compulsion. The case regarding it was, Yusufalli Esmail Nagree v. State of Maharashtra (1968)[19] police officials by deception without the knowledge of accused, set up microphone in the room where the accused and other

person was talking, here the court held that article 20(3) will not apply here as the evidence acquired was not through compulsion.

The view was further discussed in R.M. Malkani v. State of Maharashtra (1972) [20]. The conversation on call of the accused was tapped by the police officers, thus it was said that the evidence was held admissible.

Voluntary Statements
Voluntary statements are the statements which are given by the accused without any kind of compulsion.[21]

Compulsion to give evidence 'Against Himself':
This right is available only when the accused is compelled to give evidence against himself, thus voluntary giving of statements and documents would not come within the ambit of article 20(3).

Compulsion means duress. It can be in any form, may be the accused is beaten up, tortured, starved to confess out.

A case regarding this is, Mohd. Dastagir v. State of Madras (1960) [22], the accused gave the DSP an envelope, that contained money to bribe him, the money was seized and it was then held that the envelope was presented by the accused voluntarily and nobody compelled him to do so.

In Amrit Singh v. State of Punjab (2006) [23], the accused was charged with the rape and murder charges of the minor girl, it was found that in the hands of the minor girl, hair strands were found, so the accused was asked to submit his hair samples, but he refused, the court held that the accused can refuse for such under the article 20(3).

Medical Examination
Under searches documents, articles or any other evidence that can incriminate the accused can be taken into consideration, but the accused cannot be compelled for the same. Hence, there can be no objection to an accused being taken to a doctor to examine injuries pertained.

Thumb Impression
Thumb, foot, palm, finger impression or specimen are not covered under article 20(3). In P.UC.L v. Union of India(2004) [24], in this case the distinction was made by the court in 'to be a witness' and 'furnishing evidence'.

Searches and seizures
In V.S Kuttan Pillai v. Ramakrishnan (1980) [25], that evidences obtained in searches are admissible and will not be considered as taken under compulsion.

Changing of face
The court in the case Asharfi v. State (1960) [26], held that change in identification marks or changing of face or anything that can be used to identify the accused for e.g. An accused when committed the crime was a bearded man and after that he clean shaved, the view was that it is difficult to identify a man who had beard and then cleaned shaved it, so if a magistrate orders a person to clean shave for the purpose of identification, no violation of article 20(3) will be there.[27]

DNA Testing:
Evidences based on DNA test challenges the right to privacy (article 21) along with article 20(3).

In Kharak Singh v. State of Uttar Pradesh( 1964) [28], the constitution of India does not guarantee the right of privacy and on such basis the constitutionality of laws affecting this right was upheld, which includes medical examination.

Another case was Geeta Saha v. NCT of Delhi( 1999)[29], where the DNA test was conducted on the fetus of the rape victim.

In Kanchan Bedi v. Gurpreet Singh Bedi (2003)[30], the question arose on the parentage of a child, the mother wanted to conduct a DNA test but the father refused, but in this case the court allowed the DNA test and held that this is not the violation of any fundamental rights.[31]

Narco- Analysis:
The use and admissibility of these scientific techniques such as narco-analysis test, brain mapping test etc. have become a matter of great debate. In Gobind Singh v. State of Madhya Pradesh(1975)[32], it was held that right to privacy includes mental state of a person as well.

In Kishore Singh v. State of Rajasthan (2008) [33], the court held that only humane treatment for the accused is allowed unless necessary.

This issue was further reiterated in the case of Selvi v. State of Karnataka (2010)[34], the court observed that the rights under article 20(3) and article 21 are non-derogable in nature, even in emergencies they cannot be suspended. Secondly, the right of police of investigation cannot override article 20(3). Thirdly, there exist a choice with the person accused between speaking and remaining silent. The compulsory narco-analysis test amounts to 'testimonial compulsion', opposite is the case with DNA profiling. Compulsory act of any sort will violate the fundamental rights of the individual and thus the person can claim privilege under article 20(3).

The courts can order narco-analysis test only when it is important for public interest.

Prof. N.R. Madhavan headed a drafting committee on 'National Criminal Justice System Policy' recommended various methods to be taken by the government, so that it can make few
amendments in the parts of C.r.P.C for the effective use of scientific technologies. Section 53 of the Code of criminal procedure was amended just to allow the medical examination of the accused, when necessary, in the interests of justice. Section 45 of the Indian Evidence Act, 1872 also asks for the opinions of experts as admissible in the court, but such opinions are silent in the case of narco-analysis. The problems are:
  1. There exists compulsive subjugation of the accused.
  2. Right, that extends to trial and pre-trial investigation.
  3. Form in which the results are submitted of such tests.
It is also argued that the Narco analysis tests are considered as torture by the UN, Article 1 of the UN convention against torture and other cruel inhuman or degrading punishment.[35]

Comparison of writing and signature:
Any signature, writing, or seal that the court accepts as authentic must be the person who through it appears to have been used to create it or sign it. This signature, writing, or seal may be contrasted to one that is to be demonstrated to the satisfaction of the court even though it has not been produced or proven for any other reason. It is upon the discretion of the court that it can ask any person to appear and write for the purpose of comparing the words and figures alleged to have been written by such person.

In the case Shallendra Nath Sinha v. The State (1955)[36], it was held that ordering an accused to provide handwriting specimens does not mean compulsion.

In another case, Ram Swarup v. State and others (1958)[37], it was held that the writing specimen obtained under section 73 of the Indian Evidence Act, 1872 would not come under the definition of 'evidence'.

But a single judge in Balraj Bhalla v. Ramesh Chandra (1960)[38] held that in the above case the observations were obiter dicta and not the correct exposition of law.[39]

In conclusion, we can say that, the article 20(3) acts as an umbrella to protect the accused from any kind of violation of his fundamental rights. It is a privilege that is only guaranteed to the accused and can protect him from incrimination against himself by forceful compulsion of production of evidences. Various cases have been cited to understand the topic better and various components have been considered and discussed in detail.

End Notes:
  1. Aqa Raza and Pankaj Kumar Pandey, �Protection against Self-incrimination a fundamental right in India: A Critical Appraisal� SSRN Electronic Journal (2015).
  2. Ummul Waraah, �Protection against Self-incrimination under Constitution of India� 6 JETIR (2019).
  3. Richard Glover, Murphy on Evidence, 558 ( 13th ed. 2013).
  4. Steven M. Salky, The Privilege of Silence: Fifth Amendment Protections Against Self-incrimination, (2nd ed. 2009).
  5. 161 U.S. 591, 597 (1896).
  6. Shanmuga Sundarain and Dr. P.R.L Rajavenkatesan, �Protection against Self-incrimination- Principles and Practice- A comparative analysis� 13 International Journal of Law and Justice.
  7. Supra Note 6.
  8. Supra Note 6.
  9. (1997) 23 EHRR 313.
  10. M.P. Jain, Indian Constitutional Law, 1147 (8th ed.).
  11. V.N Shukla, Constitution of India, EBC, (13th ed.).
  12. Supra Note 1.
  13. Supra Note 1.
  14. AIR 1954 SC 300.
  15. AIR 1978 SC 1025.
  16. (2011) 1 SCC 364.
  17. Supra Note 1.
  18. AIR 1961 SC 1808.
  19. AIR 1968 SC 147.
  20. AIR 1920 1973 AIR 157 1973 SCR (2) 417 1973 SCC (1) 471.
  21. Protection against Self-incrimination, available at:
  22. 1960 AIR 756, 1960 SCR (3) 116.
  23. AIR 2007 SC 132.
  24. AIR 1997 SC 568.
  25. AIR 1980 SC 185.
  26. AIR 1961 All 153.
  27. Supra Note 16.
  28. AIR 1963 SC 1295.
  29. 1999 (1) JCC 101.
  30. AIR 2003 Delhi 446.
  31. Supra Note 1.
  32. AIR 1975 SC 1378.
  33. AIR 1981 SC 265.
  34. AIR 2010 SC 1974.
  35. Supra Note 1.
  36. AIR 1955 Cal 247.
  37. AIR 1958 All 119.
  38. AIR 1960 All 157.
  39. Justice U.C. Shrivastava, "Immunity from self-incrimination under article 20(3) of the constitution of India", JTRI (1996).

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