Self incrimination has been defined as acts or declarations either as testimony at trial or prior to trial by which one implicates himself being involved in a crime. The Fifth Amendment, U.S. Constitution as well as in India under Article 20(3), the provisions of doctrine of self- incrimination has been provided .In many state constitutions and laws, it prohibits the government from requiring any individual to be a witness against himself involuntarily or to furnish evidence against himself. The right to silence which includes a privilege against self-incrimination is closely related to the presumption of innocence. If it is the role of the prosecution to prove that an offence has been committed then flowing from that it should not be the responsibility of the accused person to facilitate the prosecution by being forced to speak.
The right to silence has various facets which includes –
- that the burden is on the State or the prosecution to prove that the accused is guilty and is involved in crime.
- till an accused is proved to be guilty, he is presumed to be innocent
- that the right of the accused against self- incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself.
In the Indian context, clause (3) of Article 20 of the Constitution of India guarantees a fundamental right against self -incrimination. Art. 21 grants a further fundamental right to life and liberty and states that the liberty of a person cannot be taken away except by a procedure laid down by the law. Even the Criminal Procedure Code protects this right to silence at the trial under sub section (3) of Section 313 which states that the accused shall not consider himself liable for the punishment by refusing to answer any questions, or by giving false answers.
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 [i] in which the appellant, a former Chief Minister of Orissa was interrogated with long list of questions in relation with case registered against her under the Prevention of Corruption Act, 1947 and under S. 161/165 and 120-B and 109 of The Indian Penal Code, 1860. The Supreme Court followed the earlier English law and the judgment of the American Supreme Court in Miranda and thus ruled that the objective of Article 20(3) is to protect the accused from unnecessary police harassment and even it extends to the police investigation’s stage apart from the trial procedure.
Amrit Singh vs. State of Punjab
In this case, the accused had charges of rape and murder of an eight year old girl. The body of the deceased was discovered and hair strands were found in the closed fist of the child. The Police wanted to analyze the hair of the accused in order to find the offender, but the accused refused to give the sample. The court found the accused to be protected against self-incrimination, so he had the right to refuse to give hair sample. But if the right against self-incrimination is considered in such a broad manner, then it might lead to misuse of this right by the accused.
Balasaheb vs. State of Maharashtra
It was held that a witness in a police case, who is also an accused in the complaint case for the same incident, cannot claim absolute immunity from testifying in the case but he may refuse to answer those questions which tends to incriminate him.
Griffin vs. California[ii]
The U.S Supreme Court held that at trial, if the accused invokes his right of self-incrimination, then neither the prosecution nor the judge may state the jury that that silence is evidence that the defendant is making an admission of guilt.
Miranda vs. Arizona[iii]
The Supreme Court held that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any specific manner and questioning comes into picture, then the privilege against self-incrimination is jeopardized. If the individual is not made aware of his rights (including the right to an attorney and the right to remain silent), then self-incriminating statements the individual makes will be inadmissible in court.
R vs. Noble[iv]
The majority in that case held that the right to silence is absolute and the silence of an accused cannot lead to any adverse inference against him nor be used for concluding his guilt beyond reasonable doubt.
Status of self- incrimination in other countries-
The Canadian Charter of Rights and Freedoms protects witnesses against self-incrimination which is provided under Section 13 of the Charter. Section 13 of the Charter supplements the protections afforded by the Canada Evidence Act, the various provincial evidence acts and the deemed undertaking rule.
In The United States, the Fifth Amendment relates to the fundamental right against self- incrimination 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 to any unfavorable inference against him. In Adamson vs. California[v], the question relating to the right to silence came into consideration at the initial phase. 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.
Frequently Asked Questions (FAQs)
1. What are the exceptions regarding Privilege against Self-Incrimination in India?
The exceptions regarding Privilege against Self-Incrimination is related physical evidence which includes giving thumb impressions, or impression of foot or palm or fingers or specimens of writings or exposing body for the purpose of identification which are not covered by the expression ‘to be a witness’ under Article 20(3).
[i] 1978(2) SCC 424
[ii] 380 U.S. 609 (1965)
[iii]384 U.S. 436 (1966)
[iv] (1997) (1) SCR 874
[v] (1947) 332 US 46
- Article 20 of the Indian Constitution, 1950 : Protection in respect of conviction of offences