CIA- 3

CONSTITUTIONAL LAW - 1

“COMPARATIVE ANALYSIS OF
THE RULE AGAINST SELF
INCRIMINATION IN UNITED
KINDOM, UNITES STATES OF
AMERICA AND INDIA.”
COMPARATIVE ANALYSIS OF THE RULE AGAINST SELF
INCRIMINATION IN UNITED KINDOM, UNITED STATES OF AMERICA
AND INDIA.

I. INTRODUCTION
The right against self-incrimination is a criminal defendant’s or witness’s
constitutional right guaranteeing that a person cannot be compelled by the
government to testify if the testimony might result in the person’s being criminally
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prosecuted.

The privilege against self-incrimination is a generally recognized international

standard available to all human beings. Article 14.3(g) of the International Covenant
on Civil and Political Rights, 1966 states that “in the determination of any criminal
charge against him, everyone shall be entitled to the following minimum guarantees,
2
in full equality: (g) not to be compelled to testify against himself or to confess guilt.”

This right forms the cornerstone of the criminal justice system. It is a right provided
for by every democratic nation, as it is an integral element of a free and fair trial
which is enumerated in the Principles of Natural Justice. The Latin maxim nemo
tenetur prodere or nemo tenetur scripsum accusare meaning ‘no man is bound to
accuse himself’ found its origin in a “rebellion against the inquisitorial and
manifestly unjust methods of interrogating accused persons… The change in the
English criminal procedure in that particular seems to be founded upon no statute
and no judicial opinion, but upon a general and silent acquiescence of the courts in a
3
popular demand.”

Further, the right against self-incrimination was one of several defendant’s rights
incorporated in the United States constitution due to its prominence in the English
common law. In India the inclusion of the Fundamental Rights under Part III is
inspired by the US constitution. Thus we see that the law of US, UK and India are all
interlinked and have inspired each other. Therefore it shall be interesting and of
academic relevance to compare one specific right, the right against self-incrimination

1 HENRY CAMPBELL BLACK, BLACK'S LAW DICTIONARY (8th Ed., 2004).

2 UN General Assembly, International Covenant on Civil and Political Rights, 16 December

3Brown v. Walker, (1896) 161 US 596.

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available to the accused in these different contexts.

II. THE PRIVILEGE AGAINST SELF INCRIMINATION EXISTENT IN THE

UNITED KINGDOM

The concept of inalienable human rights in the UK goes back ‘to Magna Carta in
1215, the Petition of Right of 1629, the Bill of Rights in 1689 in England and the
4
Claim of Right of 1689 in Scotland.

The UK does not have a written constitution. Its legal framework is a product of
development over centuries with both Parliament and the courts playing an integral
part. The UK has incorporated into domestic law rights contained in European Union
law and the European Convention on Human Rights (hereinafter referred to as
ECHR). However the UK has been bound by the ECHR only since 1953 and many of
its guarantees reflect rights long protected in the UK. One such protection is the
privilege against self-incrimination by which the prosecution was burdened with
proving the guilt of the accused and the right of the accused to refrain from making
any statements that he may not want to. This was introduced as a fundamental
principle of the criminal justice system after the inquisitorial system was abused by
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the Star Chamber and the ecclesiastical courts in the 16th century.

The Human Rights Act 1998 is the domestic law which lays down the fundamental
rights available to persons in the UK and allows them to seek remedy in courts if their
rights are violated.

III. THE PROTECTION AGAINST SELF INCRIMINATION PRESENT IN

THE UNITED STATES OF AMERICA.

The United States of America was subject to the British colonial rule and understood
the perils of the inquisitorial method adopted by an arbitrary government. Thus the
framers of the constitution found it necessary to adopt an accusatorial rather than an
inquisitorial system of criminal justice.

The first ten amendments to the US constitution is collectively referred to as The Bill

4
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/334999/review-of-boc-
between-uk-eu-fundamental-rights.pdf (last visited Sept. 8, 2016).
5DURGA DAS BASU, 3 COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. LexisNexis 2012).

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of Rights, 1789. The Fifth Amendment to the Constitution states that “No person…
shall be compelled in any criminal case to be a witness against himself.” Further,
Article 8(2)(g) of the American Convention on Human Rights provides for the right to
not be compelled to be a witness against himself or to plead guilty.

It is established in the US that an accused may provide evidence in his own case, of
his own accord. However, if he chooses to remain silent and not provide evidence,
this cannot be used against him. This was most recently upheld in Mitchell v. United
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States .

7
The case of Miranda v. Arizona is the landmark judgment which held that if a person
is in custody and subject to questioning, then they must be first and foremost
informed in unambiguous terms that they have the “right to remain silent”. Such a
warning was declared to be an absolute and unavoidable pre-requisite to interrogation.

The protection against self-incrimination available to individuals in the US has been

widened in scope due to the liberal judicial interpretation. Thus, resulting in the
privilege being extended to witnesses and parties in civil and criminal proceedings, it
covers documentary and oral evidence, extends to every type of disclosure including
answers which by themselves support a criminal conviction or establish a link in the
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chain of evidence required for a conviction. In US v. White , the Supreme Court
extended this right to any disclosure, which included production of chattel.

This right has been firmly imbedded in the American jurisprudence and this is the
extent of the protection against self-incrimination afforded to the accused in the US.

IV. THE RIGHT AGAINST SELF INCRIMINATION IN THE INDIAN

CONTEXT

In India, Section 3 of Act 15 of 1852 first recognized the right against self-
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incrimination of the accused in a criminal proceeding. Later on the manifestation of
this right was seen in Section 203 and 204 of The Code of Criminal Procedure
(hereinafter referred to as CrPC), 1861 and then Section 250 of the CrPC, 1872, etc. It

6 (1999) 526 US 314.

7
(1966) 384 US 436.
8 McCarthy v. Arndstain, (1924) 266 US 34 (40).
9 (1944) 322 US 694.
10 Supra note 16.

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 11
also finds its place in The Code of 1973.

Article 20 (3) of the Indian Constitution bestows the right against self-incrimination
upon individuals in the country. This Article is considered as the humane Article,
which assures dignity and integrity of the person. The inclusion of this Article in the
Constitution signifies a refusal to reduce and transform an adversarial system into an
inquisitorial one.

V. ANALYSIS & CONCLUSION

The protection against self- incrimination available to the accused is provided by most
nations whose laws flow from the principles of natural justice and adhere to
international norms and standards. The UK, US and India are all democratic countries
that afford this protection to individuals. There are common themes and similarities
that exist in the different versions of this right, owing to the fact that they have the
same origin. First, and the most essential element of this right is that no person can be
compelled, coerced or threatened to be a witness in his own trial. He however of his
own volition may choose to provide evidence that may incriminate himself in a trial.
The right in all three countries can be waived by parties. This is owing to the fact that
the protection against self-incrimination is a privilege afforded to the accused.
Second, the protection against self-incrimination is not only provided to the accused,
but also to the witness. This was applicable in India only after the case of Selvi v.
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State of Karnataka . Third, the right covers only testimonial evidence and not
physical evidence, such as finger print identification, blood tests, etc. This rule was
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upheld in India in the case of Banwarilal v. State of Uttar Pradesh . Fourth, the
effect of exercising the right to remain silent is the same in all three countries. That is,
a person exercising his choice to not provide any evidence to the prosecution, cannot
be commented upon or used to the detriment of the accused.

Even though there exists several similarities in the application of the right, there exists
various differences as well. In the USA and in India the protection against self-
incrimination is in explicit terms recorded in the constitutions of the land, however in
the UK this right is implied from the phraseology of the Human Rights Act,

11 Supra note 16.

12 AIR 2010 SC 1974.
13 AIR 1956 All 341.

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