This article has been written by kumari sheetal , a 4th year BALLB student from SRMS college of law , bareilly mjp rohelkhand university .
INTRODUCTION
The right to remain silent is one of the most important fundamental right which protects against self incrimination. The law says that an accused is presumed to be innocent until proven guilty, and the provision under Article 20(3) is required for this purpose. Article 20(3) of the Indian Constitution safeguards the right of the accused and protects him against any inhuman treatment. Three essentials are provided to invoke this section. The right is available only to an accused person and the right can be invoked in criminal proceedings and not civil.
ARTICLE 20
The article 20(3) says that accused person could not be forced to speak or do anything which could be witness against himself . article 20(3) of Indian constitution guarantees the fundamental rights . it is known as doctrine of self incrimination , that no person shall be complelled to be a witness against himself
Article 20(3) in The Constitution Of India 1949
(3) No person accused of any offence shall be compelled to be a witness against himself
Can a person waive the privilege given under Article 20(3)?
It is given that the fundamental rights cannot be waived. The privilege provided under Article 20(3) of the constitution is subject to its exercise by the accused, it is in the form of privilege and the person accused of an offence may choose not to exercise it. The right gives power to the accused to not ‘testify compulsorily’ but he can ‘testify’. Thus, if the accused chooses to testify out of his free will, he can do so.
In the case of D.K. Basu v. State of West Bengal legitimate rules and methodology was set down to ensure the denounced. The court additionally held that when an individual has captured the privilege of quietness as given under Article 20(3) should be explicitly educated. Mindfulness must be spread and each individual has the option to realize that a correction exists on his kindness. Consequently, it shows that nobody can power to give an explanation which will influence the individual himself and reserve the option to stay quiet. It joins the privilege of free discourse and articulation.
NANDANI SATPATHY V, PL DANI
In this case the former chief minister of orissa nandani sathpatty was instructed to appear before the police in cuttack with regard to a vigilance case against her , she was provided with questions in relation to her alleged acquisition of disproportionate assets . she thereafter exercised her right under article 20(3)of the Indian constitution and refused to answer the questions .. upon her refusal to answer questions , the deputy superintendent of police filed a complaint against her to answer a public servant authorized to question as provided under section 179 of the Indian penal code , she challenged the magistrate decision to issue her summons of appearance stating that article 20(3) and the immunity under section 161(2) of the criminal procedure code ( not bound to answer questions that exposes her to a criminal charge ) were wide enough to shield her . when the high court refused to entertain her petition she appealed to the supreme court of India
What was the question of law before the supreme court –
- What is the scope and meaning of article 20(3)in the constitution as regards the term accused and compelled to be a witness against oneself
- What is the meaning and scope of section 161(2) of the criminal procedure code?
- Does mens rea form necessary component of section 179 I.P.C and if so . what is its precise nature ? can a mere apprehension that any answer has a guilty potential salvage the accused or bring it into play ?
These three important questions were before the apex court and most important thing was the judgment of the court
JUDGMENT –
The court took a considerably wide view of the scope of article 20(3) holding that its prohibitive scope extends not only to the procedure in court but also at the stage of investigation . the ban on self – accusation is not confined to the offence regarding which interrogation is made , but it extends to other offences about which the accused of implication from his answer .guarding against involuntary self crimination in the face of pressure from police officers , the court found compelled testimony to mean evidence procured not only by physical threats and violence but also as physic torture , atmospheric pressure , environmental coercion , tiring interrogative prolixity , overbearing and intimidatory methods . it also held that legal perils following upon refusal to answer , or answer truthfully , cannot be regarded as compulsion within the meaning of article 20 (3) .
The court suggested , the presence of a lawyer during the course of interrogation , as a solution to the self –crimination secured through secrecy or coercion
Mens rea is an essential element of section 179 of the IPC ( refusing to answer public servant authorized to question) although an offence cannot be made under it in this case there is an apprehension of implication on answering the question put forth by the public authorities , an accused cannot deny to do the same on reasonable and vague apprehensions and possibilities .
The court held that an accused was bound to answer where there is no clear tendency to riminate him .
M. P. Sharma v. Satish Chandra, AIR 1954 SC 300, wherein their Lordships observed as follows:
“Article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporated as an article of its Constitution. It has also, to a substantial extent, been recognized in the Anglo-Indian Administration of criminal justice in this country by incorporation into various statutory provisions.”
“So far as the Indian law is concerned, it may be taken that the protection against self-incrimination continues more or less as in the English common law, so far as the accused and production of documents are concerned, but that it has been modified as regards oral testimony of witnesses, by introducing compulsion and providing immunity from prosecution on the basis of such compelled evidence.”
“Analysing the terms in which this fundamental right has been declared in our Constitution, it may be said to consist of the following components: (1) It is a right pertaining to a person ‘accused of an offence’; (2) It is a protection against ‘compulsion to be a witness’; and (3) It is a protection against such compulsion resulting in his giving evidence ‘against himself’.”
“Broadly stated, the guarantee in Article 20(3) is against ‘testimonial compulsion’. But there is no reason to confine it to the oral evidence of a person standing his trial for an offence when called to the witness stand. The protection afforded to an accused in so far as it is related to the phrase ‘to be a witness’ is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which, in the normal course, may result in prosecution.”
“Considered in this light, the guarantee under Article 20(3) would be available to persons against whom a First Information Report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them.”
Conclusion
Hence it can be concluded with the above discussions that if someone has committed a crime and then asked in court that whether he did it or not , and the person have to answer that question then many cases would have solved easily . but in India it is not easy as our constitution consist of article 20(3) which gives right to remain silent which means no one can force the accused to answer a question or to give a information which can be used against him .
References
https://indiankanoon.org/doc/366712/
https://indiankanoon.org/doc/820/
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