Accused’s Right to Silence

Why in News?

• The Supreme Court (SC) has said that all accused have a right to silence and they cannot be forced to speak up their guilt by the investigators.

Background

• The matter pertains to the facts where the wife has levelled charges of dowry and assault against the husband.
• The Allahabad High Court, in February 2023 dismissed the pre-arrest bail of the man, the Supreme Court thereafter protected him from arrest in May 2023.
• Now, when the matter again came up for hearing before the Supreme Court, adjournment was sought by the husband’s advocate.
• The same was objected to by the other side on the ground that the husband was not cooperating in the probe.

Court’s Observations

• A bench of Justices Surya Kant and Dipankar Datta retorted that one cannot argue that an accused is not cooperating on the basis that he has not confessed to all the charges as “cooperation” during an investigation cannot mean “confession”.
• The Court further stated that the investigating agency cannot make out a case against the accused just because they choose to remain silent.
• While emphasizing that the right against self-incrimination is a fundamental canon of law, the court held that right to silence emanates from Article 20(3) of the Indian Constitution, which provides that an accused has the right against self-incrimination.

Legal Provisions

• Example of self- incrimination – Suppose an accused is brought for questioning by an officer, it is the duty of the accused to answer truly to all the questions. Where such an officer threatens him or uses force to compel him to answer the questions, then his right to self-incrimination would arise and he can refuse to answer such questions.
• Confession - It is admission suggesting the inference that the person making it has committed the crime.
• Judicial Confession – Confessions made in court or before the magistrate in the legal proceeding.

Constitutional Law Aspect

• Criminal Law rests upon the principle that prosecution must prove the accused guilty beyond reasonable doubt.
• The Constitution of India grants right against self-incrimination under Article 20(3) which enshrines under its ambit the following:
• The accused is presumed to be innocent;
• The prosecution has to prove him guilty beyond reasonable doubt;
• The accused cannot be forced to give a statement against his will.
• Article 20(3) – No person accused of an offence shall be compelled to be a witness against himself.
• It is based on the legal maxim nemo tenetur prodere accusare seipsum, which means no man is obliged to be a witness against himself.

Case Law

Selvi v. State of Karnataka (2010)

• The Supreme Court in this case considered the constitutionality of various neuroscientific investigative techniques including narcoanalysis, BEAP (Brain Electrical Activation Profile) or ‘brain mapping’, and polygraph tests.
• The court opined that a narcoanalysis test without the consent of the accused would amount to violation of the right against self-incrimination.

Confession under other Legislations

Indian Evidence Act, 1872

• Section 24 - Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
  • The provision provides that a confession made under the circumstances provided above would not be relevant in criminal proceedings against the accused.

Criminal Procedure Code, 1973

Section 164 - Recording of confessions and statement — (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial.

Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

• According to the above said provision any Metropolitan Magistrate or Judicial Magistrate, not even having jurisdiction in the case, has the authority to record a confession or statement made to him by a person, in the course of an investigation or after it, but prior to the inquiry or trial.
• The Magistrate should tell the accused that he is before a Magistrate independent of police and give assurance that he would not be under threat for not making a confession or a statement and if he makes any, it can be used against him. This should be made clear to him in the plainest words possible rather than in a ritualistic manner.
• No oath is administered to the accused while the confession is recorded.