LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


“…..throughout the web of English criminal law, one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt”[1]

The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). It deals with the privilege against self-incrimination. The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence[2]. Art. 20(3) which embody this privilege read, “No person accused of any offence shall be compelled to be a witness against himself”.

No one is bound to criminate himself. Hence although an accused person may of his own accord make a voluntary statement as to the charge against himself, a justice, before receiving such statement from him is required to caution him that he is not obliged to say

Anything and that what he does say may be given in evidence against himself. Hence also arises the rule that evidence of a confession by the accused is not admissible unless it is proved that such confession was free and voluntary[3].

The privilege against self-incrimination thus enables the maintenance of human privacy in the enforcement of criminal justice. It also goes with the maxim Nemo Tenetur Seipsum Accusare[4]  i.e., ‘No man, not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime, he has been accused of.’ If the confession from the accused is derived from any physical or moral compulsion (be it under hypnotic state of mind) it should stand to be rejected by the court. The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution. In the CrPC, the legislature has guarded a citizen’s right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states that “every person is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture”. But where the accused makes a confession without any inducement, threat or promise art 20(3) does not apply.




The fifth amendment of the U.S. constitution provides that:-

No person shall be compelled in any Criminal Case, to be a Witness against Himself”

By judicial Interpretation, the above provision has been given a very wide connotation. The privilege against Self-Incrimination has been held to apply to witnesses as well as parties in proceedings—criminal and civil. It covers documentary evidence and oral evidence, and extends to all disclosures including answers which by themselves support a criminal conviction or furnish a link in the chain of evidence needed for a conviction.



It is a fundamental principle of the Common Law that a person accused of any offence shall not be compelled to discover documents or objects which incriminate  himself. No witness, whether party or stranger is, except in a few cases, compellable to answer any question or to produce any document the tendency of which is to expose the witness (or the spouse of the witness), to any criminal charge, penalty or forfeiture.

The privilege is based on the policy of encouraging persons to come forward with evidence in courts of justice, protecting them, as far as possible, from injury, or needless annoyance, in consequence of doing so.



Article 20(3) reads that-

“No person accused of any offence shall be compelled to be a witness against himself”

The privilege against self-incrimination is a fundamental canon of common criminal law jurisprudence. The characteristics features of this provisions are –

[  That the accused is presumed to be innocent,

[  That it is for the prosecution to establish his guilt, and

[  That the accused need not make any statement against his will.



This provision contains following ingredients-

1.    It is a right available to a person “accused of an offence[6]”.

2.    It is a protection against “compulsion to be a witness”.

3.    It is a protection against such “compulsion” resulting in his giving evidence “against himself”.


Elaborating the ingredients


The origins of right to silence may not be exactly clear but the right goes back to the Middle Ages in England. During the 16thcentury, the English Courts of Star Chamber and High Commission developed the practice of compelling suspects to take an oath known as the “ex-officio oath” and, the accused had to answer questions, without even a formal charge, put by the judge and the prosecutor. If a person refused to take oath, he could be tortured. These Star Chambers and Commissions were later abolished. The right to silence is based on the principle ‘nemo debet prodere ipsum’, the privilege against self-incrimination.


Accused of an offence- The privilege under this clause is only available to an accused i.e., a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in the prosecution. It is however not necessary, to avail the privilege, that the actual trial or enquiry should have commenced before the court or tribunal. Thus a person against whom the FIR[7] has been recorded by the police and investigation ordered by the Magistrate can claim the benefit of the protection. In order to avail the protection available against self-incrimination, the person claiming the same should be one “accused of an offence” at the time when he makes the statement. This means a person against whom a formal accusation relating to commission of an offence has been leveled and although actual trial may not have commenced yet, but may in normal course result in prosecution[8]. Thus in M.P. Sharma v. Satish Chandra, it was held that a person, whose name was mentioned as an accused in the first information report by the police investigation was ordered by the Magistrate, could claim the protection of this guarantee. The privilege in Article 20(3) is undoubtedly available at the trial stage but is also available at the pre-trial stage i.e. during police investigation if the person concerned can be regarded as an accused.

Even if his name is not mentioned in the FIR as an accused, it will not take him out of the category. In America the right against self incrimination is not only available to accused but also to the witness. BUT NOT UNDER INDIAN LAWS.

But in nandini satpathey Vs. P.L. dani[9]

It was subsequently held that, the right extends to witness and accused alike, that the expression 'accused of any offence’, must mean formally accused in “praesenti not in future”, that it applies at every stage at which furnishing of information and collection of materials takes place, that the privilege extends not only to the deployment of the information obtained as evidence in a criminal prosecution, but to the extraction of the information itself.


Compulsion to be a witness-

The application of Narcoanalysis test involves the fundamental question pertaining to Judicial matters and also to Human Rights. The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual’s rights, liberties and freedom. In case of State Bombay v. Kathikalu[10] it must be shown that the accused was compelled to make statement likely to be incriminative of himself. Compulsion means duress, which includes threatening, beating or imprisonment of wife, parent or child of person. Thus where the accused makes a confession without any inducement, threat or promise art 20(3) does not apply.

The Court in State (Delhi Administration) vs Jagjit Singh[11] held that once an accused is granted pardon under section 306 of Criminal Procedure Code[12], he ceases to be an accused and becomes a witness for prosecution and his evidence, as approver cannot be used against him in other cases and he is protected under proviso to Section 132 of Indian Evidence Act[13]. The proviso to Section 132 of Indian Evidence Act clearly protect a witness from being prosecuted as the basis of the answers given by him in a criminal proceeding which tend to incriminate him directly or indirectly.


Compulsion resulting in his giving evidence “against himself”-

The right to silence has various facets. One is that the burden is on the State or rather the prosecution to prove that the accused is guilty. Another is that an accused is presumed to be innocent till he is proved to be guilty beyond reasonable doubt. A third is the right of the accused against self incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself. There are also exceptions to the rule. An accused can be compelled to submit to investigation by allowing his photographs taken, voice recorded, his blood sample tested, his hair or other bodily material used for DNA testing etc. Compulsion is duress; compulsion has to be a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore, extorted. The mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not within the meaning of Article 20(3) of the Constitution.[14]

Here the accused may wave his right by entering into the witness box or by giving evidence voluntarily on request. But for maintaining this provision to attract the right given under Article 20 (3) where accused is compelled to make or give statement against him which amount to incrimination. In Amrit Singh vs. State of Punjab[15], the accused was charged for rape and murder of an eight year old girl. When the body of the child was recovered, some strands of hair were found in the closed fist of the child. The police wanted to analyse the hair found in the fist of the victim with that of hair of accused, but he refused to give the hair sample. The Supreme Court observed that the accused had protection against self incrimination not to give hair. But here in such cases if court started to consider this type of right of self incrimination than this right might be misuse by many accused though being not reasonable to allow them such rights.

A very interesting situation arose in X vs Y[16], in which the Delhi High Court in divorce proceedings for adultery, allowed the paternity test of a preserved foetus, holding that the foetus is no longer a part of body of the wife and she is not subjected to any compulsion.

The privilege against self-incrimination is not applicable to search and seizure of documents or any other object under a search warrant. In V.S. Kuttan Pillai vs Ramakrishnan[17] and Another, the court held that, a general search warrant may be issued to procure the document or thing and it can be recovered from any person who may be ultimately found in possession of it and it was not known to the Court that the person from whose possession it was found was in possession of it.

Article 20(3) is also not violated by compelling an accused to stand up and show his face for purpose of identification for it does not amount to giving of testimony as the physical facts which are noticed speak for themselves. He can also be ordered to disclose any scar or mark on his body for purpose of identification. NARCO ANNALISYS AS A BLEND OF ARTICLE 20 (3) of constitution. “Narco-analysis is a term invented by Horsley to describe a psychotherapeutic technique, in which, by the administration (usually by intravenous injection) of a narcotic drug, the patient is put into a soporose state before being brought to discuss matters which will cause him emotional distress[18].”



Some of the aspects relating to right to silence


  1. Universal Declaration of Human Rights, 1948. Art. 11.1


“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.”


2.    The International Covenant on Civil and Political Rights, 1966 to which India is a party states in Art. 14(3) (g)


“Not to be compelled to testify against himself or to confess guilt”.


  1. The European Convention for the Protection of Human Rights and Fundamental Freedoms states in Art. 6(1) that every person charged has a right to a ‘fair’ trial and Art. 6(2) thereof states:


“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”





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 well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one's mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.


Law is a living process, which changes according to the changes in society, science, and ethics and so on. The Legal System should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. The criminal justice system should be based on just and equitable principles.[19]

[1] Woolmington v DPP [1935] AC 462 is a famous House of Lords case in English law, where the presumption of innocence was first articulated in theCommonwealth.By- Viscount Sankey 

[2] Criminal law jurisprudence prevails in “common law system”

[3] The Law Lexicon, 2nd edition, 2006, justice Y.V.Chandrachud, pg- 1298

[4] Black’s Law Dictionary,9th Edn.

[5] M.P.Jain’s Indian Constitutional Law,fifth Edn..,Wadhwa Nagpur,Reprint,2007

[6] where evidence oral or circumstantial points to the guilt of a person and he is taken in custody and interrogated on that basis, he becomes a person accused of an offence.

[7] First Information Report

[8] Raja Narayanlal Bansilal vs Maneck Phiroz Mistry, AIR 1961 SC 29

[9] AIR1978SC1025, 1978crilj968, (1978)2SCC424, Decided On: 07.04.1978

Nandini Satpathy - Former Chief Minister Of Orissa - Against Whom A Case Had Been Registered Under The Prevention Of Corruption Act, Was Asked To Appear Before The Deputy Superintendent Of Police [Vigilance] For Questioning. The Police Wanted To Interrogate Her By Giving Her A String Of Questions In Writing. She Refused To Answer The Questionnaire, On The Grounds That It Was A Violation Of Her Fundamental Right Against Self-Incrimination.

[10] AIR 1961 Cri LJ , Vol 2, 2007

[11] AIR 1989 SC 598; 1989 CriLJ 986.

[12] Section 306- Tender of pardon to accomplish.

[13] Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

[14] See supra note 5

[15] AIR 2007 SC 132

[16] In X vs Y, AIR 2002 Del. 217, the wife discharged the foetus and its slides were preserved in the hospital. During divorce proceedings initiated by the husband on grounds of adultery, the husband made an application for DNA test wrt. the said slides. The Delhi High court held that granting permission for the said test would not amount to compelling wife to submit to any test as the discharged foetus was no longer a part of her body.

[17] AIR 1980 SC 185

[18] Butterworth’s medical dictionary 2nd edition


"Loved reading this piece by Harshit Khare?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Constitutional Law, Other Articles by - Harshit Khare