RIGHT AGAINST SELF INCRIMINATION BY ALISHA BAWA @LEXCLIQ

 

“In a civilized state where law protects the interest of not only of victim but also of accused, then & there the seeds of privilege against self-incrimination germinates to shield the basic human rights”.

Right against self- incrimination is enshrined in article 20(3) of the Indian constitution, 1950. This provision is in consonance with the general principles of English and American jurisprudence which dictates that no person can be compelled to give testimony which has the potential of exposing him to prosecution for crime.

Basis:

This fundamental principle of criminal law is based upon a latin maxim ‘ Nemon tenetur seipsum accusare’ , which means that no person is obliged to accuse himself. This canon is also backed by various provisions of Indian law, such as:

  • Accused is presumed to be innocent unless proven guilty.
  • Burden of proof rests with prosecution.
  • Guilt should be proved beyond reasonable doubt.
  • Accused need not to make any statement against his will, i.e. right to remain silence.

Brief history:

The right against self -incrimination finds its roots in the medieval law of roman church and thereafter, it became an accepted doctrine of common law. Thereafter, it was adopted by united states of America via fifth constitutional amendment reads as, “no person shall be compelled in any criminal case to be a witness against himself”.

In Indian context, this right was provided with an iron shield in the year of 1978 via 44th amendment, giving it an inviolable status even in case of emergency.

Ingredients constituting privilege against self-incrimination:

Apex court has done full justification in widening the scope of art 20(3). In M.P Sharma v. Satish Chandra (AIR 1954 SC 300), the apex court envisaged the following essentials:

1) This right pertains to “accused of an offence”

2) It provides protection against “compulsion to be witness”

3) It also provides protection against such ‘compulsion’ relating to his giving evidence “ against himself”

Accused of an offence :

Any person against whom actual trial or enquiry have commenced in court of law or any person against whom an FIR has been filed and investigation is ordered by the magistrate can be termed as accused. Umbrella of article 20(3) is narrower as compared to English and American law. In Indian context, this privilege is confined to accused only, while in American as well as English context, this privilege is extended to the witnesses also.

Compulsion to be a witness:

In M.P. Sharma V. Satish Chandra(AIR 1954SC 300), apex court made a very wide interpretation of the word witness. In consonance with The Indian Evidence Act, the court stated that a person can be a witness not merely by giving oral evidence but also by providing documents or other substantial documents.

Hence, this wide interpretation by apex court had the potential to hamper the effective administration of criminal justice. Therefore, in state of Bombay v. Kathi kalu( AIR1961 SC 1808) , Supreme Court narrowed down its previous interpretation of “witness’. It stated that “to be a witness” cannot be taken as synonym for “furnishing evidence”. Hence, taking compulsory photographs, specimen of writings, fingerprints will not attract article 20(3) of Indian constitution. Compulsion to give evidence “against himself” To attract the provision of article 20(3), it shall be proved that accused was compelled to give statement, which was incriminative of himself.

In Nandini Satpathy v. P.L. Dani( AIR 1977SC 1025) , supreme court broadened the scope of article 20(3) and embodied that “compelled testimony” does not pertain to physical torture but also extends to psychological interrogation.

Hence, it goes without any doubt that law is an organic study area which keeps on evolving with the passage of time. Right against self- incrimination is itself an evidence that in the present era of reasoning violation of human rights will not be a child’s play as it used to be in ancient era.

  BY: ALISHA BAWA

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