Article 20 of the Constitution of India is divided into 3 clauses. The 3
clauses individually deal with ex post facto laws, double jeopardy and the
rights of an accused against self-incrimination.
What we must first understand is the reason that the Constitution makers went
ahead and inserted these three specific clauses in the constitution, when it
could have been easily put in some or the other law. The idea is that when a
person is being tried in a court of law especially in criminal cases i.e. when
the State is the prosecutor, he is already at a very disadvantageous position
and the balances are heavily tilted in favor of the State. In such a case these
few basic rights, the accused should be given an access to so as to try to bring
about a balance between the sides.
The interesting thing to note with regards to Article 20 is that these
principles are not unique to the Indian Constitution. These are also recognized
in the constitutions of most of the civilized states of the world and has also
seen recognition in the Universal Declaration of Human Rights and The
International Covenant on Civil and Political Rights.
Clause 3 of Article 20 of the Indian Constitution reads, "No person accused
of any offence shall be compelled to be a witness against himself.
So, in simple words, clause 3 of Article 20 talks about the right against
self-incrimination that any person accused of an offence in the Union of India,
This particular right against self-incrimination is not unique to the
Constitution of India. It was in fact, a part and parcel of the common law
system which later came to be adopted by the American Criminal System, from
where it made its way to the American Constitution.
Following are the features of Article 20(3) vis a vis right against
- That a person accused of any offence would be presumed to be innocent
unless proven guilty
- The burden of proving the accused guilty, lies on the prosecution.
- The accused is not needed to make any statement against his own will.
The logic behind this right against self-incrimination arises from the fact that
if compulsory examination were to be permitted then the use of force by the
authority to make an accused confess something, would be rampant. This right
thus maintains, human privacy and the civilized standards of criminal law.
If we were to look at the components which make up clause 3 of Article 20, we
would find 3 such components. Firstly, it refers to the right pertaining to a
person accused of an offence. Secondly, it talks about the protection against
the compulsion to be a witness and lastly it talks about the protection against
compulsion to give evidence against himself. All these 3 components should
co-exist for the privilege of right against self-incrimination.
As far as the jurisprudence on this subject is concerned, we see a wavering
attitude taken by the Supreme Court which revolves around the fact that there
has been a great dearth in the Constitutional Assembly debates on this
particular issue. Also, it must be noted that the constitution makers chose to
use pretty narrow words in this clause. Hence, the entire responsibility of
developing the jurisprudence on this particular topic lay on the shoulders of
The first case that we shall be dealing with on this topic is the famous case of
State of Bombay vs Kathi Kalu Oghad
. (1961 AIR 1808). The Question before
the 11-judge bench was whether Art 20(3) is violated when the accused is asked
to give his handwriting, thumb impression, fingerprint, palmprint etc.
The Court says that the interpretation of this question would depend upon the
interpretation of the phrase; "to be a witness". The court in this regard says
that Article 20(3) protects a person who is accused of an offence and not those
who are questioned as witness. The court also says that Article 20(3) is not
violated by asking to give fingerprints, handwriting etc.
The court says that protection under Article 20(3) arises only when information
given by the accused is from his personal knowledge. It says that something
which would change the state of affairs in a given case, given from the
accused's own will, would fall under the ambit of protection under 20(3). In
this particular case, handwritings, fingerprints etc. would not change the state
of affairs and hence it would not invoke protection under Article 20(3).
After this judgement, the court has been somewhat consistent as to what it would
consider as violative of Article 20(3). It lays down that when an accused is
told to stand up and show his face for identification, it would not be
considered to be violative of Article 20(3). Similarly, compulsory collection of
urine and blood samples would also not fall under this ambit.
One question that arise from the bare reading of the clause is what was meant by
. For this, the court says, that compulsion would mean duress
or a physical objective act. Normally it would not include the state of mind
except when the mind has been so conditioned by some external process so as to
render the making of the statement involuntary.
In this regard, it must be noted that mere presence in police custody does
attach with itself the theory of compulsion but where the interrogation process
of the State uses force then the theory of compulsion comes into the picture.
This concept of compulsion has undergone a significant change over time with a
much more liberal approach been shown now by the courts.
In the case of Nandini Satpathy vs P.L. Dani
(AIR 1978 SC 1025), Justice
Krishnaiyer has given an expansive definition of a compelled testimony.
According to him, it is evidence procured not merely by physical threat or
violence but also by psychic torture, atmospheric pressure, environmental
concerns, tiring interrogative techniques, overbearing and intimidator methods
and alike. Any mode of pressure, subtle or crude, mental or physical, direct or
indirect, but sufficiently substantial applied by the police to obtain
information from the accused, strongly suggestive of guilt, is compulsion.
Clause 3 of Article 20 does not necessarily apply to pre-trial stages. However,
this case sought to introduce it relying upon the landmark American case of
Miranda vs Arizona, which led to the famous Miranda rights.
With the development of Science and Technology, there has been a growth in the
various interrogative techniques used by the police. Some of these new
techniques include the Narco test and the BEEP test. The Constitutional validity
of such tests came to be challenged in the various High Courts of the country.
Interestingly enough, the Gujarat High Court, the Bombay High Court and the
Kerala High Court, all upheld the validity of these tests.
The Supreme Court however overturned these decisions given by the various High
Courts in the case of Selvi vs State of Karnataka
(AIR 2010 SC 1974). It
held that such methods of interrogation are unconstitutional vis a vis Article
21. It has relied on the concept of intersection of Fundamental Rights which was
proposed by the Supreme Court in the case of RC Cooper vs Union of India
(1970 AIR 564) which laid down the concept of validity on the grounds of
touchstone of Article 21.
This case also brought in the concept of mental privacy and informational self
determination which further made the compulsory administration of these tests
absolutely unconditional and a ground for the accused to invoke defense under
One of the latest cases that should be mentioned vis a vis Article 20(3) is the
case of Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra
AIR SC 3565), the case of the terrorist caught alive in the 26/11 Mumbai terror
attacks. The Supreme Court in this case laid down that right against
self-incrimination under Article 20(3) does not exclude any voluntary statements
made in exercise of free will and volition.
Furthermore, in the case of Balasaheb vs State of Maharashtra
SC 304), the Supreme Court laid down that for invoking constitutional rights
under Art 20(3), a formal accusation against the person claiming the protection
With that we see how the right against self-incrimination has been interpreted
by the Indian judiciary over the course of time.
Written By: Mr.Saikat Mukherjee
, A 3rd year BA LLB Student at Symbiosis
Law School, Nagpur.
Email – [email protected]