February 8, 2023

Right against self-incrimination- Origin, Rational behind it, Provision in Constitution, and Criticism

Along with the `rule against double-jeopardy‘ and the `rule against retrospective criminalisation’ enumerated in Article 20, ‘right against self-incrimination’ is one of the fundamental protections of Article 20 in Indian Constitution, that controls interactions between individuals and the criminal justice system.

Article 20(3) reads as follows:

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

‘Right against self-incrimination’ as an important principle of ‘Right to fair trial’

The interrelationship between the `right against self- incrimination’ and the `right to fair trial’ has been recognised in most jurisdictions as well as international human rights instruments.

For example, the U.S. Constitution incorporates the `privilege against self-incrimination’ in the text of its Fifth Amendment. The meaning and scope of this privilege has been judicially moulded by recognising it’s interrelationship with other constitutional rights such as the protection against `unreasonable search and seizure’ (Fourth amendment) and the guarantee of `due process of law’ (Fourteenth amendment).

In the International Covenant on Civil and Political Rights (ICCPR), Article 14(3)(g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt.

In the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that,

`Everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law’.

The guarantee of `presumption of innocence’ bears a direct link to the `right against self- incrimination’ since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt.

The evolution of ‘Right against self-incrimination’ in India after Independence

In the Indian context, Article 20(3) is construed with due regard for the inter-relationship between rights, since this approach was recognised in Maneka Gandhi’s case, (1978) 1 SCC 248. The ‘right against self-incrimination’ is a part of multiple dimensions of ‘personal liberty’ under Article 21, which includes guarantees such as the ‘right to fair trial’ and ‘substantive due process’.

Articles 20 and 21 have a non-derogable status within Part III of our Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a proclamation of emergency.

In this regard, Article 359(1) of the Constitution of India reads as follows: –

359. Suspension of the enforcement of the rights conferred by Part III during emergencies. –

(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. …”

‘Right against self-incrimination’ in conflict with ‘Duty to corporate in investigation’

  • Section 39, CrPC, places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section.
  • Section 156(1), CrPC, states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate.
  • Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case.

While the overall intent of these provisions is to ensure the citizens’ cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons. The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard.

For instance, Section 161(2), CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.

Right to Silence

Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence.

At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them.

Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial.

It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person’s silence during the trial stage.

Historical origins of the `right against self-incrimination’

The right of refusal to answer questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the `right to fair trial’. There are competing versions about the historical origins of this concept. Some scholars have identified the origins of this right in the medieval period.

In that account, it was a response to the procedure followed by English judicial bodies such as the Star Chamber and High Commissions which required defendants and suspects to take ex officio oaths. These bodies mainly decided cases involving religious non-conformism in a Protestant dominated society, as well as offences like treason and sedition. Under an ex officio oath the defendant was required to answer all questions posed by the judges and prosecutors during the trial and the failure to do so would attract punishments that often involved physical torture. It was the resistance to this practice of compelling the accused to speak which led to demands for a `right to silence’.

The doctrinal origins of the right against self- incrimination

In an academic commentary, LEONARD LEVY (1969) had pointed out that the doctrinal origins of the right against self- incrimination could be traced back to the Latin maxim `Nemo tenetur seipsum prodere’ (i.e. no one is bound to accuse himself) and the evolution of the concept of `due process of law’ enumerated in the Magna Carta.[1]

The use of the ex officio oath by the ecclesiastical courts in medieval England had come under criticism from time to time, and the most prominent cause for discontentment came with its use in the Star Chamber and the High Commissions. Most scholarship has focussed on the sedition trial of JOHN LILBURNE (a vocal critic of Charles I, the then monarch) in 1637, when he refused to answer questions put to him on the ground that he had not been informed of the contents of the written complaint against him. John Lilburne went on to vehemently oppose the use of ex-officio oaths, and the Parliament of the time relented by abolishing the Star Chamber and the High Commission in 1641. This event is regarded as an important landmark in the evolution of the `right to silence‘.

However, in 1648 a special committee of Parliament conducted an investigation into the loyalty of members whose opinions were offensive to the army leaders. The committee’s inquisitional conduct and its requirement that witnesses take an oath to tell the truth provoked opponents to condemn what they regarded as a revival of Star Chamber tactics. John Lilburne was once again tried for treason before this committee, this time for his outspoken criticism of the leaders who had prevailed in the struggle between the supporters of the monarch and those of the Parliament in the English civil war.

John Lilburne invoked the spirit of the Magna Carta as well as the 1628 Petition of Right to argue that even after common-law indictment and without oath, he did not have to answer questions against or concerning himself. He drew a connection between the right against self-incrimination and the guarantee of a fair trial by invoking the idea of `due process of law’ which had been stated in the Magna Carta.

JOHN H. LANGBEIN (1994) has offered more historical insights into the emergence of the `right to silence’.[2] He draws attention to the fact that even though ex officio oaths were abolished in 1641, the practice of requiring defendants to present their own defence in criminal proceedings continued for a long time thereafter.

The Star Chamber and the High Commissions had mostly tried cases involving religious non-conformists and political dissenters, thereby attracting considerable criticism. Even after their abolition, the defendants in criminal courts did not have the right to be represented by a lawyer (`right to counsel’) or the right to request the presence of defence witnesses (`right of compulsory process’). Hence, defendants were more or less compelled to testify on their own behalf.

Even though the threat of physical torture on account of remaining silent had been removed, the defendant would face a high risk of conviction if he/she did not respond to the charges by answering the material questions posed by the judge and the prosecutor. In presenting his/her own defence during the trial, there was a strong likelihood that the contents of such testimony could strengthen the case of the prosecution and lead to conviction. With the passage of time, the right of a criminal defendant to be represented by a lawyer eventually emerged in the common law tradition.

Treason Act of 1696

A watershed in this regard was the Treason Act of 1696 which provided for a `right to counsel’ as well as `compulsory process’ in cases involving offences such as treason. Gradually, the right to be defended by a counsel was extended to more offences, but the role of the counsel was limited in the early years. For instance, defence lawyers could only help their clients with questions of law and could not make submissions related to the facts.

The practice of requiring the accused persons to narrate or contest the facts on their own corresponds to a prominent feature of an inquisitorial system, i.e. the testimony of the accused is viewed as the `best evidence’ that can be gathered. The premise behind this is that innocent persons should not be reluctant to testify on their own behalf. This approach was followed in the inquisitional procedure of the ecclesiastical courts and had thus been followed in other courts as well. The obvious problem with compelling the accused to testify on his own behalf is that an ordinary person lacks the legal training to effectively respond to suggestive and misleading questioning, which could come from the prosecutor or the judge.

Furthermore, even an innocent person is at an inherent disadvantage in an environment where there may be unintentional irregularities in the testimony. Most importantly the burden of proving innocence by refuting the charges was placed on the defendant himself. In the present day, the inquisitorial conception of the defendant being the best source of evidence has long been displaced with the evolution of adversarial procedure in the common law tradition.

Criminal defendants have been given protections such as the presumption of innocence, right to counsel, the right to be informed of charges, the right of compulsory process and the standard of proving guilt beyond reasonable doubt among others. It can hence be stated that it was only with the subsequent emergence of the `right to counsel’ that the accused’s `right to silence’ became meaningful.

With the consolidation of the role of defence lawyers in criminal trials, a clear segregation emerged between the testimonial function performed by the accused and the defensive function performed by the lawyer. This segregation between the testimonial and defensive functions is now accepted as an essential feature of a fair trial so as to ensure a level-playing field between the prosecution and the defence.

In addition to a defendant’s `right to silence’ during the trial stage, the protections were extended to the stage of pre-trial inquiry as well. With the enactment of the Sir John Jervis Act of 1848, provisions were made to advise the accused that he might decline to answer questions put to him in the pre-trial inquiry and to caution him that his answers to pre-trial interrogation might be used as evidence against him during the trial stage.

Reference from US Supreme Court

The judgment in Nandini Satpathy v. P.L. Dani, (1978)[3], referred to the following extract from a decision of the US Supreme Court in Brown v. Walker,[4] (1896), which had later been approvingly cited by Warren, C.J. in Miranda v. Arizona,[5] (1966):

“The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which have long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, were not uncommon even in England.

While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the case with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition.

The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the inequities of the ancient system impress themselves upon the minds of the American colonists that the State, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.”

Underlying rationale of the right against self-incrimination

As mentioned earlier, `the right against self-incrimination’ is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage.

When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the `rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.

The concerns about the `voluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements – often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, `the right against self-incrimination’ is a vital safeguard against torture and other `third-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation.

The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such `short-cuts’ will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the `right against self- incrimination’ is a vital protection to ensure that the prosecution discharges the said onus.

The right against self-incrimination is a shield against torture and inhuman investigation techniques

These concerns have been recognised in Indian as well as foreign judicial precedents. For instance, Das Gupta, J. had observed in State of Bombay v. Kathi Kalu Oghad, [1962][6]:

“… for long it has been generally agreed among those who have devoted serious thought to these problems that few things could be more harmful to the detection of crime or conviction of the real culprit, few things more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth.

If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law `to sit comfortably in the shade rubbing red pepper into a poor devils’ eyes rather than to go about in the sun hunting up evidence.’ [Sir James Fitzjames Stephen, History of Criminal Law, p. 442]

No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false – out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution makers were clearly well aware and it was to avoid them that Article 20(3) was put in the Constitution.”

THE RATIONALE BEHIND THE FIFTH AMENDMENT IN THE U.S. CONSTITUTION was eloquently explained by Goldberg. J. in Murphy v. Waterfront Commission, (1964)[7]:

“It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state- individual balance by requiring the government to leave individual alone until good cause is shown for disturbing him and by requiring the government in its contests with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self- deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent.”

A similar view was articulated by Lord Hailsham of St. Marylebone in Wong Kam-ming v. R , [1979][8] :

“… any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions.

It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary.”

V.R. Krishna Iyer, J. echoed similar concerns in Nandini Satpathy’s case, (supra):

“…And Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station. And in the long run, that investigation is best which uses stratagems least, that policeman deserves respect who gives his fists rest and his wits restlessness. The police are part of us and must rise in people’s esteem through firm and friendly, not foul and sneaky strategy.”

Criticism of the ‘right against self-incrimination’

In spite of the constitutionally entrenched status of the right against self-incrimination, there have been some criticisms of the policy underlying the same. John Wigmore (1960)[9] argued against a broad view of the privilege which extended the same to the investigative stage. He has asserted that the doctrinal origins of the `rule against involuntary confessions’ in evidence law and those of the `right to self-incrimination’ were entirely different and catered to different objectives. In the learned author’s opinion, the `rule against involuntary confessions’ evolved on account of the distrust of statements made in custody.

The objective was to prevent these involuntary statements from being considered as evidence during trial but there was no prohibition against relying on statements made involuntarily during investigation. Wigmore argued that the privilege against self-incrimination should be viewed as a right that was confined to the trial stage, since the judge can intervene to prevent an accused from revealing incriminating information at that stage, while similar oversight is not always possible during the pre-trial stage.

In recent years, scholars such as David Dolinko (1986), Akhil Reed Amar (1997) and Mike Redmayne (2007)[10] among others have encapsulated the objections to the scope of this right. It is argued that in aiming to create a fair state-individual balance in criminal cases, the task of the investigators and prosecutors is made unduly difficult by allowing the accused to remain silent. If the overall intent of the criminal justice system is to ensure public safety through expediency in investigations and prosecutions, it is urged that the privilege against self-incrimination protects the guilty at the cost of such utilitarian objectives.

Another criticism is that adopting a broad view of this right does not deter improper practices during investigation and it instead encourages investigators to make false representations to courts about the voluntary or involuntary nature of custodial statements. It is reasoned that when investigators are under pressure to deliver results there is an inadvertent tendency to rely on methods involving coercion, threats, inducement or deception in spite of the legal prohibitions against them.

Questions have also been raised about conceptual inconsistencies in the way that courts have expanded the scope of this right. One such objection is that if the legal system is obliged to respect the mental privacy of individuals, then why is there no prohibition against compelled testimony in civil cases which could expose parties to adverse consequences. Furthermore, questions have also been asked about the scope of the privilege being restricted to testimonial acts while excluding physical evidence which can be extracted through compulsion.

Answer of the Criticism- Conclusion

In response to John Wigmore’s thesis about the separate foundations of the `rule against involuntary confessions’, we must recognise the infusion of constitutional values into all branches of law, including procedural areas such as the law of evidence. While the above-mentioned criticisms have been made in academic commentaries, we must defer to the judicial precedents that control the scope of Article 20(3).

For instance, the interrelationship between the privilege against self-incrimination and the requirements of observing due process of law were emphasized by William Douglas, J. in Rochin v. California, (1951)[11]:

“As an original matter it might be debatable whether the provision in the Fifth Amendment that no person `shall be compelled in any criminal case to be a witness against himself’ serves the ends of justice. Not all civilized legal procedures recognize it. But the choice was made by the framers, a choice which sets a standard for legal trials in this country. The Framers made it a standard of due process for prosecutions by the Federal Government. If it is a requirement of due process for a trial in the federal courthouse, it is impossible for me to say it is not a requirement of due process for a trial in the state courthouse.”

Reference

1.Selvi v. State of Karnataka, (2010)

2. References in the article as quoted by Court in the judgment


[1] Leonard Levy, `The right against self-incrimination: history and judicial history’, 84(1) Political Science Quarterly 1-29 (March 1969)

[2] [John H. Langbein, `The historical origins of the privilege against self- incrimination at common law’, 92(5) Michigan Law Review 1047-1085 (March 1994)]

[3] (1978) 2 SCC 424, at pp. 438-439

[4] 161 US 591 (1896),

[5] 384 US 436 (1966)

[6] [1962] 3 SCR 10, at pp. 43-44

[7] 378 US 52 (1964), at p. 55

[8] [1979] 1 All ER 939, at p. 946

[9] John Wigmore, `The privilege against self-incrimination, its constitutional affectation, raison d’etre and miscellaneous implications’, 51 Journal of Criminal Law, Criminology and Police Science 138 (1960)

[10] David Dolinko, `Is There a Rationale for the Privilege Against Self-Incrimination?’, University of California Los Angeles Law Review 1063 (1986); Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven: Yale University Press, 1997 at pp. 65-70; Mike Redmayne, `Re-thinking the Privilege against Self- incrimination’, 27 Oxford Journal of Legal Studies 209-232 (Summer 2007)]

[11] 342 US 166 (1951), at p. 178