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Silence of The Lambs - Article 20(3) In Administrative Proceedings

Written by: Apurv Shah - Studing Law At ‘Institute Of Law, Nirma University
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The derivation of the concept of self incrimination has its legal sources laid down in the American and English jurisprudence that no one shall be compelled to give testimony which may expose him to prosecution for crime. Historically, the legal protection against self incrimination is directly related to the question of torture for extracting information and confession.[1][2]


The Fifth Amendment of U.S. constitution provides inter alia:

No person shall be compelled in any criminal case, to be witness against himself [3], this apply to witness as well as parties in proceeding- civil and criminal. 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 chain of evidence needed for conviction.[4]

In Counselman V. Hitchcock,[5] it was described about the principle that, It is an ancient principle of the law of evidence that a witness shall be compelled, in any proceeding, to make disclosures or to give testimony which will tend to incriminate him or subject him to fines, penalties, or forfeitures.

As per the English laws, it is a fundamental principle of the common law shall not be compelled to discover documents or objects which incriminate him.
Even the theory of, Right to Silence which is considered to be the mode towards self – incrimination has embarked in Britain. The origins of right to silence may not be exactly clear but the right goes back to the Middle Ages in England. During the 16th century, 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.[6]

The fundamental right against self incrimination relates to the Fifth Amendment of United States and contains, more or less, the same language as in Article 20(3) of our Constitution. The fundamental rule of criminal jurisprudence against self – incrimination has been raised to a rule of constitutional law in Article 20 (3) which says, “No person accused of any offence shall be compelled to be a witness against himself.”[7] Art 20(3) of the Indian Constitution provides for the Right against self –incrimination which includes right to remain silent and extends even to interrogation during the investigation[8] and also both to the accused and suspect accused equally.

Development of this Right in different spheres

In India, the adverse inference rule was extensively applied till 1861. After the commencement of the Constitution, Section 342(2) of Criminal Procedure Code, 1898 was assailed as violative of Article 20(3) of the Constitution.

In Banwarilal vs State[9] the Court concluded that even assuming that there was some compulsion in Section 342(2) of Criminal Procedure Code, it was “a far cry from saying that it compels him to be a witness against himself.”[10] The criminal system in India has adopted an “adversary system of trial” which provides that a person who has been arrested or detent by the authority with reason to believe that he/she has committed any offence, would be considered as innocent and only it is the prosecution which is required to prove his guilt beyond reasonable doubt.

This guarantee extends to any person accused of an offence and prohibits all kinds of compulsions to make him a witness against himself. Explaining the scope of this clause in M.P. Sharma v. Satish Chandra,[11] the Supreme Court observed that this right embodies the following essential:
1. It is a right pertaining to a person who is “accused of an offence.”

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.[12] 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 where a custom officer arrests a person and informs him of the grounds of his arrest for the purpose of holding an inquiry into the violation of the provisions of the Sea Customs Act there is no formal accusation of an offence.[13] A contemner is not in the position of an accused.

2. It is a protection against “compulsion to be a witness.”
In the State of Bombay v. Kathi Kalu, the Supreme Court held that the phrase “to be a witness” was broadly interpreted in M.P. Sharma’s case, which was not required like; a person gives his finger impression or specimen writing or signature, though, it may amount to furnishing evidence in a large sense which is not included within the expression “to be a witness”. Whereas it was mentioned in this case that self – incrimination can only mean conveying information based upon personal knowledge of the person giving information and cannot include merely the mechanical process of producing documents in court which may throw light on any point in controversy, but which do not contain any statement of the accused based on his personal knowledge.

The Court in State (Delhi Administration) vs Jagjit Singh[14] held that once an accused is granted pardon under section 306 of Criminal Procedure Code,[15] 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.[16] 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.

3. Compulsion to give evidence against himself
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.[17]

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 Nandini Satpathy v. P.L. Dani, the Supreme Court had considerably widened the scope of clause (3) of Article 20. The Court has that the prohibition scope of Article 20 (3) goes back to the stage of police interrogation not commencing in court only. It extends to, and protects the accused inregard of other offences— pending or imminent— which may deter him from voluntary disclosure. Justice V. R. Krishna Iyer advocated an expansive interpretation of the phrase “compelled testimony” which must be read as evidence produces not merely by physical threats or violence but by physical (mental) torture, atmospheric pressure, environment coercion, tiring interrogative, proximity, overbearing and intimidatory methods and the like. Thus compelled testimony is not limited to physical torture or coercion, but extends also to techniques of psychological interrogation which cause mental torture in a person subject to such interrogation.

According to the court, self – incrimination is less than “relevant” and more than ‘confessional’. The accused person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer has a reasonable prospect of exposing him to guilt in some other accusation, actual or imminent, even if the investigation is not with reference to that.[18] However, he is bound to answer where there is no clear tendency to criminate.

The court have time and again reiterated the view that a person can be compelled to give sample of blood against his/her will for analysis, to determine the paternity of a child or for some other purpose and no adverse inference can be drawn for this refusal.

In Amrit Singh vs. State of Punjab,[19] 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, 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.[20]

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, 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.[21]

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. [22] 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.”[23]

It is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. A person is able to lie by using his imagination. In the narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lay .In such sleep-like state efforts are made to obtain "probative truth" about the crime.

Other associated truth finding tests-
I. Polygraph or lie Detection Test
II. P300 or the Brain Mapping Test
Development of new tools of investigation has led to the emergence of scientific tools of interrogation like the narco analysis test.[24] Such tests are a result of advances in science but they often raise doubts regarding basic human rights and also about their reliability. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions.

The main provision regarding crime investigation and trial in the Indian Constitution is Article 20(3). It deals with the privilege against self-incrimination. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The privilege against self incrimination is a fundamental canon of Common law criminal jurisprudence. In India Narco analysis is steadily being mainstreamed into investigations, court hearings, and laboratories. 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. Subjecting the accused to undergo the test, as has been done by the investigative agencies in India, is considered by many as a blatant violation of Article 20 (3) of Constitution.[25]

In a 2006 judgment (Dinesh Dalmia v State), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary."

Though after series of case which are still in cue and which are been disposed are not having a great precedent with all reasonability and accordance. A few numbers of cases has been decided by the different Courts i.e. Gujarat High Court, Bombay High Court and Kerela High Court have given their decisions with different interpretation but not reached up to a united stand. In the recent case of narco test of the mafia leader Abu Salem kept new question in front of all the organs of the government.

Related Provisions
The Criminal Procedure Code contains several provisions which correspond with the spirit of Article 20(3) of the Constitution. Section 161(2) of Criminal Procedure Code, 1973 grants a right to silence during interrogation by police.[26] The degree of protection granted by Article 20(3) and Section 161(2) of Criminal Procedure Code is substantially the same. The Supreme Court in Nandini Satpathy vs P.L. Dani[27], held the accused person may remain silent or refuse to answer when confronted with incriminating questions. The ban on self-accusation while investigation or trial is under way goes beyond that case and protects the accused in regard to other offences pending or imminent. Similarly, Section 313(3) of Criminal Procedure Code protects right to silence at the time of trial and states that the accused shall not be liable to punishment for reason of refusal to answer any question put to him.
Similar protection is available to a person accused under Sections 25 of Indian Evidence Act, 1872.[28]

The Constitution of India raises the rule against self-incrimination to the status of constitutional prohibition. The prohibitions imposed by Article 20(3) are directly relevant to the criminal procedure during investigation by police and trial before court. The purpose of this protection is to prevent torture and inhuman treatment of the accused at the hands of investigating agencies to extort confessions.[29]

The aim of administrative investigation is not only to find out facts, but also to collect evidence on which a prosecution may be bound later. As for example, in the Maneck Phiroze case, the inspector making the investigation was told to bear in mind that “for a successful prosecution the evidence in support of a charge must be clear, tangible and cogent”. The obvious implication of this direction were that he should fish out evidence against the person concerned which may be of probative value in criminal proceeding to be launched subsequently. This means that what cannot be achieved through a formal criminal proceeding can be used against the person concerned which formally prosecuted later in a criminal court. From this point of view, the privilege against self – incrimination loses much of its efficacy in this era of growth of administrative process.[30]

Hence the point is that, by enacting provision like Article 20 (3) in Constitution which is considered to be the supreme law of the nation is not enough even not only that but the substance of right and privilege is also not the issue, as right are always considered to be the focal point to be calculated first. The issue is to whom this right to be given or who is eligible under this right. If this provision is kept for the interpretation at a broader concept than there are possibility of being misused frequently by the accused and witnesses, by taking the deference of their right enshrined under chapter of fundamental right. The better option may be these cases are to be checked properly at pre- trial stages with all reasonableness and remove this silence of lamb.

Books Referred
1. M.P.Jain, “Indian Constitutional Law” Fifth Edition 2008, Wadhwa and Company, Nagpur.
2. J.N.Pandey, “The Constitution Law of India” Forty Fifth Edition 2008, Central Law Agency, Allahabad.
3. D.D.Basu, “Shorter Constitution of India”
4. V.N. Shukla, “Constitution of India”
5. Seervai, “Constitutional Law of India”
6. P.M.Bakshi, “Constitutional Law of India”
7. Supriya Rai, Narcoanalysis Test Constitutional Imperatives, SLS

Articles Referred
1. Prachi Gupta, “Right to Silence: An Indispensable Right in Criminal Jurisprudence”
3. C.Vasantha Bhanu, “Human Rights Jurisprudence and Criminal Law”

1. 108th LAW COMMISSION REPORT ON ‘ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA AND RIGHT TO SILENCE’ submitted on may 9, 2002 by Justice M. Jagannadha Rao.
3. DNA : Daily News & AnalysisHem Raj Singh: Narco Analysis: constitutionally Questionable, Lawyers Update.

[1] Amar, Akhil Reed(1998). The Bill of Rights. New Haven: Yale University Press .pp.84.
[2] Amar, Akhil Reed(1998). America’s constitution. New York: Random House .pp. 329.
[3] Fifth Amendment of U.S. constitution.
[4] McCarthy vs Arndstain, 266 US 34.
[5] 142 U.S. 547 (1892).
[6]108th LAW COMMISSION REPORT ON ‘ARTICLE 20 (3) OF THE CONSTITUTION OF INDIA AND RIGHT TO SILENCE’ submitted on may 9, 2002 by Justice M. Jagannadha Rao.
[7] Article 20 (3) of the Indian Constitution
[8] MP Sharma.v. Satish Chandra AIR 1954 SC 300
[9] AIR 1956 All 341
[10] Followed by Mysore High Court in Govinda Reddy, Re, 1958 INDLAW SC 214.
[11] AIR 1954 SC 300
[12] Raja Narayanlal Bansilal vs Maneck Phiroz Mistry, AIR 1961 SC 29
[13] Vera Ibrahim v. State of Maharastra, AIR 1976 SC 1167
[14] AIR 1989 SC 598; 1989 CriLJ 986.
[15] Section 306- Tender of pardon to accomplish.
[16] 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.
[17] M.P.Jain, “Indian Constitutional Law” Fifth Edition 2003, Wadhwa and Company, Nagpur.
[18] The leading American /case on the point is Miranda v. Arizona, K. Iyer’s opinion is influence by the Mirinda approach.
[19] AIR 2007 SC 132
[20] 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.
[21] AIR 1980 SC 185
[22] Pakhar Singh vs State of Punjab, AIR 1978 Punj 294 at 298
[23] Butterworth’s medical dictionary 2nd edition
[24] Jesani A. Medical professionals and interrogation: lies about finding the truth. Indian J Med Ethics 2006 Oct-Dec; 3: 116-117
[25] Supriya Rai, Narcoanalysis Test Constitutional Imperatives, SLS
[26] Section 161(2) of Criminal Procedure Code, 1973 reads as follows: “Such person shall be bound to answer truly all questions relating to such case put to him such officer, other than questions the answers to which would have tendency to expose him to a criminal charge or to a penalty or forfeiture.”
[27] AIR 1977 SC 1025
[28] Section 25 of the Indian Evidence Act, 1872 reads: No confession made to a police officer, shall be proved as against a person accused of any offence.
[29] An interesting question arises as to why confession to the police was made inadmissible in evidence by the British rulers who made the Indian Evidence Act in 1872. The answer is obvious. In India there is no proper training given to police inspectors for conducting scientific investigation nor are they provided with proper equipment for this purpose. On the other hand the police inspector has to show that he has solved the crimes in an area, and since that can truthfully be done only by scientific investigations for which he is neither given training nor the equipment, the only way for him is to secure a conviction by using torture in police custody; Justice Markandey Katju; “Torture as a challenge to Civil Society and Administration of Justice”, 2000(2) SCC (Jour) 39.
[30] M.P.Jain, “Indian Constitutional Law” Fifth Edition 2008, Wadhwa and Company, Nagpur

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