Article 20 (3) reads as:
“No person accused of any offence shall be compelled to be a witness against himself.”
“The Article in the constitution of India dealing with protection in respect of conviction for offences 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 antechamber of a police station. And in the long run, that investigation is the best which uses stratagems least that policeman deserves respect who gives his fists rest and his wits restlessness.”- Halsbury’s Laws of India
The right to remain silent is a legal right of any person subjected to police interrogation or summoned to go to trial in a court of law. This right is recognized, explicitly or by convention, in many of the world's legal systems. The right covers a number of issues centered on the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a trial, hearing or any other legal proceeding.
Historical Development of the Right
Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions. The legal shift from widespread use of torture and forced confession dates to turmoil of the late sixteenth and early seventeenth century in England. Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was taken for guilty. Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly employed to compel "cooperation."This created what has been termed the ‘cruel trilemma’ whereby these accused faced the prospect of one of perjury (which was believed to be a mortal sin) (if they lied under oath to protect themselves), harsh punishment for contempt of court (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honor their oath).Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with thirteen demands, of which the right against self-incrimination (in criminal cases only) was listed at number three. These protections were brought to the American shores by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights. The evidence of that is to be seen in the near-identical systems of criminal law still in operation in those nations that inherited the English system - including the US. The two different but diverging paths along which these rights evolved and operate in Anglo-American jurisprudence (one through rights expressed in the Constitution, the others in Acts of Parliament specifying rights or protections at common law) can be seen today in Commonwealth countries like Australia and New Zealand, where police officers are still required at common law to issue "Miranda-style rights" (but which are completely unrelated to the US Miranda warning ruling) and inform an arrested person that they do not have to answer any questions but that whatever they do say (or do) can be used in court as evidence. They must also ask an arrested person whether they understand these rights. Any failure to do so can jeopardise a criminal prosecution. The right to counsel, which also became increasingly entrenched in the US following the American Revolution, gave defendants a practical method of mounting a defense while remaining silent and the development of the modern police force in the early 1800s opened up the question of pre-trial silence for the first time. The key American case of Bram v. United States paved the way for the right to be extended to pre-trial questioning. The practice of warnings became established in the US and elsewhere following the case of Miranda v. Arizona in 1966.
International Charters
Under article 14.3(g) of the U.N. Covenant on Civil and Political Rights, 1966, provides:
“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(g) Not to be compelled to testify against himself or to confess guilt"
Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 provides: " in the determination of his civil rights and obligation, or of any criminal charges against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." the right to remain silent of an accused was considered by the European Court, while considering the scope of the above article. It was held: "Although not specifically mentioned in article 6 of the convention, there can be doubt that they remain silent under the police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under article 6.[1] Whether the drawing of adverse influence from the accused’s silence infringes article 6 is a matter to be determined in the light of all circumstances of the case, having particular regard to the situation where inferences may be drawn the weights attached to them by national courts in their assessment of evidence and degree of compulsion inherent in the situation. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriage of justice and to secure the aim of article 6." What is at stake in the present case is whether the immunities are absolute in the sense that the exercise by an accused of the right of silence cannot under any circumstances be used against him at trial or alternatively whether informing him in advance that under certain conditions, his silence may be used, is always to be regarded as’ improper compulsion.’In appropriate cases, the judge should direct the jury as to the proper limits of the inference of silence. The Judicial Studies Board has provided a specimen direction, which has been accepted by the European Court of Human Rights.[2] Failure to give a valid direction, does not, however, render a conviction automatically unsafe.A defendant in a criminal trial may choose whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries.
Read more at http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/146.html
“No person accused of any offence shall be compelled to be a witness against himself.”
“The Article in the constitution of India dealing with protection in respect of conviction for offences 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 antechamber of a police station. And in the long run, that investigation is the best which uses stratagems least that policeman deserves respect who gives his fists rest and his wits restlessness.”- Halsbury’s Laws of India
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.The right to remain silent is a legal right of any person subjected to police interrogation or summoned to go to trial in a court of law. This right is recognized, explicitly or by convention, in many of the world's legal systems. The right covers a number of issues centered on the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions before or during a trial, hearing or any other legal proceeding.
Historical Development of the Right
Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions. The legal shift from widespread use of torture and forced confession dates to turmoil of the late sixteenth and early seventeenth century in England. Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was taken for guilty. Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly employed to compel "cooperation."This created what has been termed the ‘cruel trilemma’ whereby these accused faced the prospect of one of perjury (which was believed to be a mortal sin) (if they lied under oath to protect themselves), harsh punishment for contempt of court (if they refused to answer), or betraying their "natural" duty of self-preservation (if they told the truth to honor their oath).Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for "freeborn rights" were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell's revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with thirteen demands, of which the right against self-incrimination (in criminal cases only) was listed at number three. These protections were brought to the American shores by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights. The evidence of that is to be seen in the near-identical systems of criminal law still in operation in those nations that inherited the English system - including the US. The two different but diverging paths along which these rights evolved and operate in Anglo-American jurisprudence (one through rights expressed in the Constitution, the others in Acts of Parliament specifying rights or protections at common law) can be seen today in Commonwealth countries like Australia and New Zealand, where police officers are still required at common law to issue "Miranda-style rights" (but which are completely unrelated to the US Miranda warning ruling) and inform an arrested person that they do not have to answer any questions but that whatever they do say (or do) can be used in court as evidence. They must also ask an arrested person whether they understand these rights. Any failure to do so can jeopardise a criminal prosecution. The right to counsel, which also became increasingly entrenched in the US following the American Revolution, gave defendants a practical method of mounting a defense while remaining silent and the development of the modern police force in the early 1800s opened up the question of pre-trial silence for the first time. The key American case of Bram v. United States paved the way for the right to be extended to pre-trial questioning. The practice of warnings became established in the US and elsewhere following the case of Miranda v. Arizona in 1966.
International Charters
Under article 14.3(g) of the U.N. Covenant on Civil and Political Rights, 1966, provides:
“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(g) Not to be compelled to testify against himself or to confess guilt"
Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 provides: " in the determination of his civil rights and obligation, or of any criminal charges against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." the right to remain silent of an accused was considered by the European Court, while considering the scope of the above article. It was held: "Although not specifically mentioned in article 6 of the convention, there can be doubt that they remain silent under the police questioning and the privilege against self-incrimination are generally recognized international standards which lie at the heart of the notion of a fair procedure under article 6.[1] Whether the drawing of adverse influence from the accused’s silence infringes article 6 is a matter to be determined in the light of all circumstances of the case, having particular regard to the situation where inferences may be drawn the weights attached to them by national courts in their assessment of evidence and degree of compulsion inherent in the situation. By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriage of justice and to secure the aim of article 6." What is at stake in the present case is whether the immunities are absolute in the sense that the exercise by an accused of the right of silence cannot under any circumstances be used against him at trial or alternatively whether informing him in advance that under certain conditions, his silence may be used, is always to be regarded as’ improper compulsion.’In appropriate cases, the judge should direct the jury as to the proper limits of the inference of silence. The Judicial Studies Board has provided a specimen direction, which has been accepted by the European Court of Human Rights.[2] Failure to give a valid direction, does not, however, render a conviction automatically unsafe.A defendant in a criminal trial may choose whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries.
Read more at http://www.goforthelaw.com/index.php/browsearticles/loadarticleview/146.html
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