The "right to silence" is a fundamental principle of the common law system that protects individuals from self-incrimination. It asserts that individuals should not be compelled to answer questions or provide evidence that may incriminate them in a criminal proceeding.
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This principle holds great significance in ensuring a fair and just legal process, and it finds its place in Article 20(3) of the Constitution of India. In this article, we will explore the historical origins of the right to silence, its various facets, and its significance in India's legal framework.
Historical Origins of Right to Silence
The right to silence has its roots in medieval England, with notable developments occurring during the 16th century in the English Courts of Star Chamber and High Commission. These courts compelled suspects to take an "ex-officio oath" and answer questions, even without formal charges. Refusal to take the oath could result in torture.
The right to silence is grounded in the principle 'nemo debet prodere ipsum,' which translates to "no one should be compelled to accuse himself." This privilege against self-incrimination eventually became a cornerstone of legal protections.
Key Facets of the Right to Silence
The right to silence encompasses several essential facets that protect the accused and ensure a fair trial:
Burden of Proof: In criminal proceedings, the burden of proving the accused's guilt rests squarely on the State or prosecution. This means that the prosecution must establish the accused's guilt beyond a reasonable doubt. State of Bihar v. Basawan Singh, AIR 1958 SC 500, where the Supreme Court reaffirmed that the burden of proof in a criminal case always lies on the prosecution
Presumption of Innocence: Until proven guilty, an accused is presumed to be innocent. This presumption safeguards the accused from undue prejudice and ensures a fair trial. Anant Chintaman Lagu v. State of Bombay, AIR 1960 SC 500, where the Supreme Court emphasized the importance of the presumption of innocence.
Protection Against Self-Incrimination: The right to silence grants the accused the privilege of remaining silent and not being compelled to incriminate themselves. An accused cannot be forced to answer questions that might implicate them in a crime. Nandini Satpati v. P.L. Dani, 1978 (2) SCC 424, where the Supreme Court upheld the accused's right to remain silent to prevent self-incrimination
Exceptions: While the right to silence is fundamental, there are exceptions. In certain circumstances, the law may compel an accused to submit to investigations, such as allowing photographs, voice recordings, blood samples, or bodily material for DNA testing.
International Perspective
The concept of the right to silence is not confined to India; it is recognized internationally as a fundamental human right. The Universal Declaration of Human Rights (1948) enshrines the right to be presumed innocent until proven guilty.
The International Covenant on Civil and Political Rights (1966), to which India is a party, sets out various safeguards for individuals accused of crimes, including the right to a fair trial and protection against self-incrimination.
Burden of proof
It's important to understand the distinction between two types of burdens in legal proceedings: the legal or persuasive burden of proof, which remains constant and never shifts, and the evidential burden, which can shift during a trial. In modern statutes, while the burden of proving a particular claim or charge remains with one party, the evidential burden can be shifted to the opposing party.
For instance, in civil cases, a plaintiff may need to prove that a defendant owes them money due to a loan. However, under Section 118 of the Negotiable Instruments Act, if the defendant has executed a negotiable instrument in favor of the plaintiff, the initial evidential burden shifts to the defendant to explain the situation.
This shifting of the evidential burden is also applied in criminal cases, particularly when an accused is found in possession of property deemed illegal, such as drugs or stolen items.
Legislatures have the authority to implement such shifts in the evidential burden. For example, under the Prevention of Corruption Act, 1988, if an accused person is found with unaccounted funds or properties disproportionate to their known sources of income, the evidential burden is placed on the accused to provide an explanation.
Similarly, in cases related to excise, customs laws, and smuggling, the evidential burden may be initially imposed on the accused, especially when they possess specialized knowledge regarding the recovered contraband property.
These provisions have faced challenges on the grounds of violating the principle against self-incrimination. However, they have been upheld by the courts because they do not shift the burden of proof, which remains the responsibility of the State or prosecution to establish guilt beyond a reasonable doubt.
Right to Silence: Constitution and Law
In India, the right against self-incrimination is explicitly incorporated into Article 20(3) of the Constitution. This constitutional provision is a testament to the importance of protecting an accused person's rights and ensuring a just legal process.
Additionally, after the landmark Maneka Gandhi case (1978 (1) SCC 248), Article 21 of the Constitution mandates a fair, just, and equitable procedure to be followed in criminal cases. The Indian Criminal Procedure Code further reinforces these protections.
Section 161(2): This section grants the right to silence during police interrogation. It stipulates that a person must answer all questions truthfully, except those that might expose them to a criminal charge or penalty. This provision strikes a balance between the needs of the investigation and the protection of individual rights.
Section 313(3): At the trial stage, Section 313(3) safeguards the right to silence. The accused is not liable for punishment for refusing to answer questions or providing false answers. This provision ensures that an accused person cannot be compelled to incriminate themselves during the trial.
Section 315(1)(b): This provision precludes any comment by the parties or the court regarding the accused's failure to give evidence. It reinforces the presumption of innocence and prevents any adverse inference based on the accused's silence.
Notably, Indian law is consistent with Article 20(3) of the Constitution and Article 21, which emphasize the protection of an accused's rights and a fair legal process.
Judicial Interpretation
Judicial Prouncements
The right to silence has been examined by the Supreme Court of India in various cases. One such case is Nandini Satpati vs. P.L. Dani (1978 (2) SCC 424), where the Supreme Court upheld the principle that an accused has the right to remain silent, both before and during the trial, particularly if answering questions might expose them to guilt. Justice Krishna Iyer emphasized the historical significance of this right as a response to torture during investigations.
The right to silence has been a subject of examination by the Supreme Court of India in various cases. These judgments have played a pivotal role in shaping the interpretation and application of this fundamental right. Let's explore some relevant
Supreme Court judgments:
Nandini Satpati vs. P.L. Dani (1978 (2) SCC 424): In this landmark case, the Supreme Court upheld the principle that an accused has the right to remain silent, both before and during the trial, particularly if answering questions might expose them to guilt. Justice Krishna Iyer emphasized the historical significance of this right as a response to torture during investigations.
Selvi vs. State of Karnataka (2010 (7) SCC 263): In this case, the Supreme Court examined the admissibility of statements made during custodial interrogation. The Court held that statements made to the police during interrogation are not admissible unless they meet the stringent requirements of voluntariness and reliability.
State of Maharashtra vs. Bharat Chaganlal Raghani (2001 (5) SCC 164): This case reaffirmed the importance of the right to silence during police interrogation. It emphasized that an accused cannot be compelled to answer questions that might incriminate them.
Comparative constitutional Analysis
United States: In the United States, the Fifth Amendment protects the right against self-incrimination, and it contains similar language to Article 20(3) of the Indian Constitution. American courts have consistently upheld the right to remain silent, and silence cannot be used against the accused as evidence of guilt. However, at a later stage, the silence of the accused may be considered during sentencing but does not infer guilt. Even in Miranda Vs. Arizona (1966) 384 US 436, it was held that the police have to give a warning to the suspect and that the suspect has a right to remain silent. He has a further right to the presence of an attorney during questioning. It is also important to note that the US Supreme Court has nowhere laid down that on account of the silence of the accused, an adverse inference can be drawn or that the silence can be treated as a piece of corroboration for inferring of guilt.
Canada: In Canada, the Supreme Court has held that the right to silence is absolute, and the silence of an accused cannot lead to any adverse inference or be used to establish guilt beyond a reasonable doubt. Judgment of Canadian Supreme Court in R Vs. Noble (1997) (1) SCR 874. 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 the purpose of arriving at a finding of guilt beyond reasonable doubt.
Foundational Principle of Justice
The right to silence is a foundational principle of justice and fairness in the legal system, protecting individuals from self-incrimination and ensuring a fair trial. In India, Article 20(3) of the Constitution, along with various provisions in the Criminal Procedure Code, provides robust protection for this right.
The jurisprudence surrounding the right to silence has evolved over the years, with Indian courts upholding the principle as a vital safeguard in criminal proceedings. It is essential to continue recognizing and respecting this fundamental right to maintain the integrity of India's legal system and ensure justice for all accused individuals.
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