Special project REPORT ON

“Right against self-incrimination ”

SUBMITTED TO:

Dr. Deepak srivastava

Faculty, Constitutional Governance

SUBMITTED BY:

Pankaj Sharma

Roll no. 100

SECTION A

SEMESTER III, B.A. LLB (HONS.)

SUBMITTED ON:

November 30, 2018

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

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 ACKNOWLEDGEMENTS

I feel highly elated to work on the project “Right against self-incrimination”. The practical
realisation of the project has obligated the assistance of many persons. Firstly I express my
deepest gratitude towards Dr. Deepak Srivastava, Faculty of Constitutional Governance,
to provide me with the opportunity to work on this project. His able guidance and supervision
were of extreme help in understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.

Pankaj Sharma

Roll No. 100

Semester III

Section A,

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 Table of Contents
Acknowledgments ………………….…………………………….…2

1. Introduction …………………………………….….…………4
 Research methodology………….…..5
 Objectives of study …………………5
 Questions ……………………….…..5
 Hypothesis……………………….….5
 Scope of study ……………………...5
 Mode of citation………………….…5

2. The Constitutional Provision- Article 20(3)……………….…6

3. Judicial Approach towards Article 20(3)…………………….8

4. Scientific test voluntary or Involuntary?……..…………..… 10

5. Can a person waive the privilege given under article 20(3)?

…….………..10

Conclusion………………………………………………………………13

Bibliography………………………………………………………….…14

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 INTRODUCTION
“One golden rule is always to be seen, that it is the duty of the prosecution
to prove the prisoner’s guilt”1

The beginning of the right against self-incrimination lies in the 17th century trial of John
Lilburne2, a Puritan agitator who when put on trial refused to take an oath requiring him to
answer questions posed to him truthfully and was as a result whipped and pilloried .
Subsequently, the punishment was declared illegal and the Star Chamber was abolished and
set a precedent right against self- incrimination. Since then, this principle of ‘nemo tenetur
accusare se ipsum’ which means No man can be compelled to criminate 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.

Among the fundamental rights that have been guaranteed to us by the Indian Constitution,
Article 20 espouses the ones that are specific to any person who is accused of an offence. It
takes the spirit of natural justice and fair trial further. The provision borrows from the Fifth
Amendment of the American Constitution which lays down that, “No person shall be
compelled in any criminal case to be a witness against himself”, same as mentioned in the
Constitution of India embodying the principles of both English and American Jurisprudence.

The Fundamental Right guaranteed under Article 20(3) is a protective umbrella against
testimonial compulsion for people who are accused of an offence and are compelled to be a
witness against themselves. This libertarian provision can be connected to an essential feature
of the Indian Penal Code based on the lines of Common Law that, “an accused is innocent
until proven guilty” and the burden is on the prosecution to establish the guilt of the accused;
and that the accused has a right to remain silent which is subject to his much broader right,
against self-incrimination.

1
Woolmington vs. DPP, 1935 AC 462 at 481
2
John Lilburn - (1614–29 August 1657), also known as Freeborn John, was an agitator in England before,
during and after the English Civil Wars of 1642–1650

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Research Methodology

The method of research adopted is doctrinal & descriptive in nature. Secondary sources of
information have been used to give the research work a concrete structure. Websites & e-
articles have been extensively referred for relying on the data. Other relevant sources as
suggested by the faculty coordinator have been referred to. Footnotes have been provided
wherever required.

Objectives of study

 To study about the right against self- incrimination.

 To examine the legal provisions under criminal law.
 To study about the judicial approach for right against self- incrimination.

Questions

 What is right against self – incrimination?

Hypothesis

Article 20[3] of the Indian Constitution, 1950 provides that “No person accused of any
offence shall be compelled to be a witness against himself.” This principle is espoused on the
maxim “nemo teneteur prodre accussare seipsum”, which essentially means “NO MAN IS
BOUND TO ACCUSE HIMSELF.” This project elaborates the stand of Indian judiciary
specifically with respect to the Right against self-incrimination granted by Article 20(3) of
the constitution.

Scope of study

In this project, the author only discusses the Article 20 (3) and other relevant provision of
criminal law. Further judicial approach for right against self- incrimination.

Mode of citation

The mode of citation of this project is bluebook 19th edition.

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 The Constitutional Provision- Article 20(3)
The provision relating to the self-incrimination is contained under Article 20(3) of the Indian
Constitution which reads as- “No person accused of any offence shall be compelled to be a
witness against himself.” The characteristics features of this provision are that the accused
need not to make any statement against his will as it is for the prosecution to establish his
guilt beyond all reasonable doubt and the accused is presumed to be innocent till proved
guilty.

This provision contains the following ingredients:

i. It is a right available to a person “accused of an offence”.3

ii. It is a protection against ―compulsion to be a witness.
iii. It is a protection against such ―compulsion resulting in his giving
evidence ―against himself.

Person 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 levelled 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 F.I.R. 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
levelled and although actual trial may not have commenced yet, but may in normal
course result in prosecution. Thus in M. P. Sharma v. Satish Chandra,4 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

3
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.
4
AIR 1954 SC 300.

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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 v. P. L. Dani5 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 present 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. In Balasaheb v. State of Maharashtra,6 Court held that, a witness in a
police case, who is also an accused in complaint case about the same incident, cannot claim
absolute immunity from testifying in the police case on ground of Article 20(3). He may,
however, refuse to answer those questions which tend to incriminate him.

Compulsion to be a witness

The application of Narco analysis 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,7 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 Article 20(3) does not apply. The Court in State (Delhi Administration) v. Jagjit
Singh,8 held that once an accused is granted pardon under section 306 of Criminal
Procedure Code, 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. 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

5
AIR 1978 SC 1025
6
(2011) 1 SCC 364.
7
AIR 1961 SC 1808
8
AIR 1989 SC 598.

7
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. Here the accused may waive 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 v. State of Punjab,9 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.

Judicial Approach towards Article 20(3)

1. In the case of M.P. Sharma v. Satish Chandra,10 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.

9
AIR 2007 SC 132.
10
AIR 1954 SC 300

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 2. In the case of Kartar Singh v. State of Punjab11 SC held that the guarantee against
testimonial compulsion extends not only to oral testimony in court or outside court
but also in written statements incriminating the matter of the statement. The court has
made it clear that the protection against self – discrimination Under Article-21

3. In the case of State Bombay v. Kathikalu12 it must be shown that the accused was
compelled to make statement likely to be in criminative 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.

4. In nandini satpathey Vs. P.L. dani13 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.

5. In V.S. Kuttan Pillai vs Ramakrishnan and Another14, 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.

6. In State (Delhi Administration) vs Jagjit Singh15 held that once an accused is granted
pardon under section 306 of Criminal Procedure Code, 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. 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.

11
(1994) 3 SCC 569
12
AIR 1961 Cri LJ , Vol 2, 2007
13
(1978)2SCC424
14
AIR 1980 SC 185
15
AIR 1989 SC 598

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 SCIENTIFIC TESTS – VOLUNTARY OR INVOLUNTARY?

The issue of involuntary administration of certain scientific techniques, like narco-analysis

tests, polygraph examination, etc. for the purpose of improving investigation efforts in
criminal cases has gained a lot of attention. For a long time, there was a debate about whether
such tests were violative of Article 20(3) or not and the same issue were brought to the
Supreme Court in the case of Selvi v. State of Karnataka16

In this case the Hon’ble Chief Justice, Justice K.G Balakrishnan spoke of behalf of the Apex
Court, and drew the following conclusions:

1. The right against self-incrimination and personal liberty are non-derogable rights,
their enforcement therefore is not suspended even during emergency.
2. The right of police to investigate an offence and examine any person do not and
cannot override constitutional protection in Article 20(3);
3. The protection is available not only at the stage of trial but also at the stage of
investigation;
4. That the right protects persons who have been formally accused, suspects and even
witnesses who apprehend to make any statements which could expose them to
criminal charges or further investigation;
5. The law confers on ‘any person’ who is examined during an investigation, an
effective choice between speaking and remaining silent. This implies that it is for the
person being examined to decide whether the answer to a particular question would be
inculpatory or exculpatory;
6. Article 20(3) cannot be invoked by witnesses during proceedings that cannot be
characterised as criminal proceedings;
7. Compulsory narco-analysis test amounts to ‘testimonial compulsion’ and attracts
protection under Article 20(3);
8. Conducting DNA profiling is not a testimonial act, and hence protection cannot be
granted under Article 20(3);
9. That acts such as compulsory obtaining signatures and handwriting samples are
testimonial in nature, they are not incriminating by themselves if they are used for the
purpose of identification or corroboration;

16
AIR 2010 SC 1974

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 10. That subjecting a person to polygraph test or narco-analysis test without his consent
amounts to forcible interference with a person’s mental processes and hence violates
the right to privacy for which protection can be sought under Article 20(3);
11. That courts cannot permit involuntary administration of narco-tests, unless it is
necessary under public interest.

CAN A PERSON WAIVE THE PRIVILEGE GIVEN UNDER ARTICLE

20(3)?
It is a settled position of law that a Fundamental Right cannot be waived. Nevertheless the
right given under Article 20(3) of the Constitution is in the nature of a privilege and person
holding this privilege may refuse to exercise this privilege. The right is against “compulsion
to testify”, and not against “testify” as it is. Thus a person may testify against himself.
However the waiver of privilege must be a real and substantial waiver. If a person does
not know that he has this privilege and if out of ignorance he fails to exercise this privilege, it
is not a real and substantial waiver. In that case the statement is hit by Article 20(3) of the
Constitution whenever it is brought before adjudicating authority or Court. Further when a
person has this privilege, and the officer recording his statement gives the legal threat of
Section 108, which is not applicable when Article 20(3) is applicable; this amounts to
compulsion and the statement is hit by Article 20(3) and not applicable.
The author is of the view that Custom and Central Excise authorities must inform the person
summoned that he has this protection under Article 20(3) of the Constitution, when the
situation so requires. In Nandini, followed in Kartar Singh, the Supreme Court has given
direction to the police that they should bring this right to the notice of the person whose
statement they are recording and they should take a written acknowledgement. There is no
reason as to why this direction should not be applicable in case of Customs and Central
Excise.

Right remain silent during interrogation

The question whether the accused should be a apprised of his right not to answer and keep
silent while being interrogation by the police was considered by the SC of the USA in
Miranda v. Arizona17 and the court held that if a person in custody is to be interrogated, he
must first be informed in clear and unequivocal terms that he has a right to remain silent. In
State of Punjab v. Balbir Singh SC held that when such am important right is given to an

17
(1966) 384 US 436

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accused person in custody in general, the right by way of safeguard conferred under section
50 of the NDPS of the Act in the context is all the mire officers intending to search of inform
the person to be searched of his right that is he chooses, he will be searched in the presence
officers of a gazetted officers or magistrate. This Provision of speech and section 50 of the
NPDS act is mandatory.

Article 20(3) different proceedings

In Criminal Proceedings:

The privilege in criminal law is based on and determined by section 161(2) of the Code of
Criminal Procedure, section 27 of Indian Evidence Act and Article 20 (3) of the Constitution
of India. The most pertinent case in this regard is undoubtedly Nandini Satpathy v.
P.L.Dani, wherein Krishna Iyer, J. widened the scope of the protection considerably. The
issues before the court were various: the ones significant for the instant paper were whether a
potential candidate for accusation can avail of the privilege, does the privilege extend to other
pending or potential accusations outside the specific investigation which has led to the
questioning, at what instance in the entire proceeding does the privilege become available,
the scope of compulsion, and whether the privilege extends to derivative evidence. 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 futuro,’ 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 , that the true
test for testing valid invocation of the right is reasonable apprehension of the accused/witness
as to the use of the information against him/herself, and finally, that compelled testimony
includes evidence procured not merely by physical threats or violence but by psychic torture,
atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and
intimidatory methods and the like, but not legal penalty for violation. Despite this slight
caveat, it is evident that the protection against self-incrimination is undoubtedly quite
extensive in criminal law, extending as it does to almost all people, at almost all stages of a
criminal trial. It is this wide armor that must be kept in mind at all times while discussing the
right as available in administrative proceedings.

The protection under Article 20 (3) does not therefore extent to parties and witness in civil
proceedings or proceeding other than criminal.

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 Conclusion

Article 20 (3), invokes protection against self-incrimination and gives an accused the right to
remain silent over any issue which tends to incriminate him. This protection by the Indian
Constitution is also extended to suspects. Article 20 (3), has been carefully crafted to protect
the accused from further self-incriminating himself only if any statement of his might result
in prosecution. For the benefit of the Courts, the Supreme Court has distinguished between
the terms “witness” and “furnish evidence”, the former including furnishing statements from
one’s own knowledge and the latter referring to simply presenting documents required by the
court under which protection under Article 20(3) cannot be sought.

This article also stretches its privileges to a person who is compulsorily being made a witness
and also covers searches and seizures wherein, an accused or the person being searched is
under no obligation to be a part of the search. If any confession or a mere statement is made
based on which some material corroboration is found then that statement cannot be protected
under Article 20(3). Under the law, an accused cannot be tortured to make a statement or a
confession and no duress can be exercised in order to obtain some information out of him, in
such a case the statement would be void and the privileges under Article 20(3) would be
applicable. Narco-analysis tests, polygraph analysis etc. which refer to involuntary
administration of mental processes, are considered violative of Article 20(3) and can only be
done in a few cases as it disrupts the right to privacy.

The right to silence has been considered by the Supreme Court of India in a three-Judge
Bench in Nandini Satpati vs. P.L. Dani 1978(2) SCC 424 where the Supreme Court
followed the earlier English law and the judgment of the American Supreme Court in
Miranda. Krishna Iyer J observed that the accused was entitled to keep his mouth shut and
not answer any questions if the questions were likely to expose him to guilt. This protection
was available before the trial and during the trial.

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 Bibliography

Bareact

 The Constitution of India

 Code of Criminal Procedure, 1973
 Indian Evidence Act, 1872

Books

 Law Commission of India, One Hundred Eightieth Reports on Article 20(3) Of The
Constitution Of India And The Right To Silence May 2002 (Justice M. Jagannadha
Rao)
 Ratalal & Dheerajlal, The Law of Evidence , 22nd Edition.(2006), Wadhwa Nagpur.
 Jain, M. P.- Indian Constitutional Law, 5th edition, Reprint 2007, pp. 1064-1065
 Ronald J. Allen and M. Kristin Mace, The Self-Incrimination Clause explained and its
future predicted, 94(1) JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY
243, 267-68, 272 (2004).
 Pranesh Prakash, Practice what you preach, INDIAN EXPRESS (Apr 26, 2012),
available at http://www.indianexpress.com/news/practise-what-you-preach/941491/
 Shukla V.N., Constitution of India (Revised by M.P. Singh) 19th Edition, 2001,
Eastern Book Company

Website :
 http://www.criminalcle.net.au/attachments/Right_To_Silence_paper.pdf)
 http://www.legalserviceindia.com/article/l466-Privilege-Against-Self----
Incrimination.html
 http://www.legalserviceindia.com/article/l9-Silence-Of-The-Lambs---Article-20(3)-
In-Administrative-Proceedings.html

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