Right to remain silent is adopted from British law that offered privilege and disappointment to both the witnesses and accused at the same time. For ages, the provision of the right to remain silent in the constitution of various countries prevails in both criminal and civil laws for delivering judgments. The initial encroachment of the right to silence started during times when terror activities were at their zenith in Ireland under the Criminal Evidence (Northern Ireland) order, 1988. The right to remain silent is accepted in the court of England and applied to all criminal and civil cases where an accused has a right to remain silent.
Right To Remain Silent in India
In India, the right to remain silent is a fundamental right under part III of the Indian Constitution. Article 20 of the Indian Constitution ensures a fair trial and lawful arrest of a person. The right to remain silent is guaranteed under Article 20(3) of the Indian Constitution. The right to remain silent is against self-incrimination in India, which immunes a person accused of an offense compelled to be a witness against himself.
The foundation principle of self-incrimination is based on fair trial and silence, which do not amount to the conviction of an accused until the accused is proven guilty beyond reasonable doubt in the court of law. The principle of self-incrimination was introduced in India by the founding father of the Indian Constitution to protect the interest of the accused and witnesses in the court of law.
The right to remain silent is based on the principle of ‘nemo debet prodere ipsum’ which means no man is obliged to accuse himself. In India, the right against self-incrimination is incorporated in cause 3 under article 20 of the Indian Constitution after Maneka Gandhi V. Union of India. In the case of Maneka Gandhi V. Union of India, the respondent confiscates the petitioner’s passport without offering any justification for the arbitrary and unilateral decision on the part of the External Affairs Ministry on the grounds of public interest.
Origin Of Self-incrimination
The principle of self-incrimination was dated back to the 16th century in England. The English Court of Star Chamber and High Commission used to practice compelling suspects to take an ex officio oath and after taking the oath accused is bound to answer questions without framing any formal charges in the court. If a person refuses to administer the oath, he might be tortured or subjected to harassment by the authorities. The political courts of Star Chamber and High Commission violated the principle of fair trials. Clauses that allow the authorities to torture the accused mentally and physically have been abolished on the ground of human rights violations.
The right to remain silent is the principle of common law which ensures that an accused should not assume to be guilty merely for not responding to the questions put forth by the police or by the court. The right cover both the accused and the witnesses present before the court.
Scope Of Right To Remain Silent
Right to remain silent in India has various aspects where an accused is presumed to be innocent until proven guilty beyond reasonable doubts in a court of law. The evidential burden of proof lies on the state or prosecution to establish that the accused is guilty of an offense. We all know that rights are not absolute but subject to exceptions. According to Article 20 (3) of the Indian Constitution, an accused might compel to submit to investigation by allowing investigating authorities to take material evidence such as handprints, blood samples, hair and other bodily material for a DNA test, photograph, voice recording etc.
It is mandatory that an accused was allowed to appoint a lawyer at the time of interrogation by the police and at the time of trial before the court. The accused must be informed that he has the right to consult a lawyer. A lawyer is present during the interrogation and whenever the accused is questioned by the authorities to avoid using arbitrary measures against the accused. In case, a lawyer advised an accused to remain silent during interrogation, the fairness of the advice shall not be enquired and there is no compulsion to disclose such advice. It was also suggested that both the accused and the lawyer need to be cross-examined during interrogation but it will lead to further confusion and resulted in a large number of litigation, further confusion, more uncertainty, and more acquittal cases in India.
Right To Remain Silent In Other Laws
Some aspects of the right to remain silent are mentioned in the international treaties and declarations. Article 11.1 of the Universal Declaration of Human Rights, 1948 stated that everyone has a right to be presumed innocent until proven guilty beyond reasonable doubt according to the law in a court trial where an accused has all the guaranteed rights for his defense.
International Covenant on Civil & Political Rights, 1966 is a multilateral treaty that commits states parties to respect the civil and political rights of the individual. India is one of the state parties to the treaty. According to Article 9.1, no one shall be deprived of their liberty except on the grounds and procedure established by law. Article 9.2 states that a person shall inform the grounds of arrest and charges framed against him at the time of the arrest. Article 11.3 refers to the right to be produced in a court for a trial, similar to Article 22 (2) of the Indian Constitution allows every person who is arrested and detained in the custody of police shall be produced before the nearest magistrate within 24 hours of such arrest. A person should not be detained for more than 24 hours without producing the accused before a magistrate except in the cases of preventive detention. Article 14(3)(g) of the International Covenant on Civil and Political Rights states that no one shall be compelled to testify against himself or forced to confess guilt.
Article 6(1) of the European Convention for the Protection of Human Rights & Fundamental Freedom stated that the accused has a right to have a fair trial. Article 6(2) states that every person is presumed to be innocent until proven guilty beyond reasonable doubt in the court of law.
Cases Related To The Right To Remain Silent
There are a few cases that raise a question about the validity of the right to remain silent in India. In the case of Banwarilal V. State, the Supreme Court held that an accused is presumed to be innocent and the evidential burden to establish the guilt of the accused is laid on the prosecution. The criminal system in India has adopted an adverse system of trial which provides that a person who was arrested by the police with the reason to believe that the person must have committed an offense.
In the case of the state of Bombay V. Kathi Kalu, the Supreme Court held that self-incrimination can only mean conveying information based upon personal knowledge of a person and cannot include the mechanical process of producing shreds of evidence in the court but it should not contain any document of the accused which is based upon his knowledge.
In the case of State (Delhi Administration) V. Jagjit Singh, the Supreme Court of India held that once an accused is granted a pardon under section 306 of the Code of Criminal Procedure, 1973, in that case, he is ceased to be an accused and becomes a witness for the prosecution. The evidence which was used to prove him guilty shall not be used against him. Section 132 of the Indian Evidence Act, protects a witness from being prosecuted based on the responses given orally in the criminal proceeding that might incriminate a person directly or indirectly.
Right against self-incrimination is immunity that ensures that an accused shall not be subjected to physical or mental harassment by the authorities to compel him to be a witness against himself. It also guaranteed that silence did not amount to the conviction of an accused. It also ensures that the right to remain silent shall not result in adverse inference because silence does not amount to evidence. The accused remain silent because of shock, illiteracy, encounter foreign language, desire to protect someone, reprisal, drug dependency, or bonafide advice of his lawyer, or might be some other reason unknown to the jury or prosecution.
The prosecution needs to establish a prima facia case that proves the guilt of the accused before the court. It quoted that a verbal denial shall not be equivalent to silence. It is clear from the facts that an accused shall not be convicted merely based on silence. it was also believed that at the stage of interrogation when charges against the accused have not been framed, the suspect remains silent due to several reasons. At the stage of the trial, charges have been framed and shreds of evidence have been produced before the court. At this stage, a suspect needs to prepare himself for the questions that were supposed to ask during the court trial. Section 161 of the Code of Criminal Procedure, 1973 grants the right to remain silent during interrogation by police.
Section 313(3) of the CrPC, 1973 protects the accused and allows him to remain silent at the trial. These three sections in the CrPC, 1973 presume that an accused is innocent until proven guilty beyond reasonable doubt and grant a right to remain silent at the stage of interrogation and the stage of the court trial.
Frequently Asked Questions
Does the right to remain silent in India is absolute?
No, it is not an absolute right and is subjected to reasonable restrictions.
A person threatens to confess a crime that he does not commit. Is it against any right?
Yes, it is against Article 20(3) of the Indian Constitution which is right against self-incrimination. A person shall not become a witness against himself.
I confessed a crime in the police station because of fear and threat imposed by police personnel. Is my confession valid in court of law?
No, confession before the police is not a valid confession in court of law.
 Law Commission of India, 108th report on article 20(3) of the Indian Constitution, by Justice M. Jagannadha Rao, 23 May 2022
 Article 20 of the constitution of India, 24 May 2022
 Maneka Gandhi V. Union of India, 1978(1) SSC 248, 23 May 2022
 Banwarilal V. State, Lawyer Services, 23 May 2022, Banwari Lal and Another v State on 23 December 1955 – Judgement – LawyerServices
 State of Bombay V. Kathi Kalu, legal service India, 23 May 2022, Silence of The Lambs – Article 20(3) In Administrative Proceedings (legalserviceindia.com)
 State (Delhi Administration) V. Jagjit Singh, legal service India, 23 May 2022, Silence of The Lambs – Article 20(3) In Administrative Proceedings (legalserviceindia.com)