Right to Remain Silent

The Right to Silence is a legal principle that guarantees any individual the right to refuse to answer questions from law
enforcement or any court officials. Article 20(3) of the Indian Constitution talks about the Right of the accused that is no person
shall be compelled to be a witness against himself. Section 313 of the Code of Criminal Procedure, 1973 talks about the power to
examine the accused. This Section provides the power to the Court to question the witness at any stage of the trial.

Introduction:
The derivation of the concept of self-incrimination has its legal source in America which tells that no one shall be compelled to
give testimony which exposes him to prosecution. In any Criminal investigation, suspect and the accused plays an important role
in extracting the truth. Thus, The right to silence is an essential right of the accused recognized by the law. The origin of the Right
to Silence is attributed to Sir Edward Coke.

It comes from Article 20(3) of the Indian Constitution which talks about the Right to protection against self-incrimination. Also
governed by the Criminal Law which states that the prosecution must prove the guilt of the accused as he is presumed to be
innocent until proven guilty. Section 313 of the Code of Criminal Procedure, 1973 talks about the Power to examine the accused.
It also emphasis on the various judicial interpretation of the Indian courts and the constitutional validity of such practice about
the legislative intent of the framers of the Code of Criminal Procedure,1973.

Section 313 of the Code of Criminal Procedure, 1973 stipulates the power of the Court to question the witness at any stage of the
trial about the circumstances appearing in the evidence against him. The accused cannot take the oath when he is examined
under the sub-clause (3) of Section 313 and will not be liable for punishment even if he is not answering the question or providing
the false answer during the examination.

Section 313 and the Right to Silence:

Section 313 of the Code of Criminal Procedure, 1973 talks about the Power to examine the accused.

The legislative scheme of the provision is to allow the accused to explain the circumstances which are appearing to be
incriminating to him.

There is no express provision that mandates the accused to explain and also the refusal to answer doesn’t make him punish.

It acts as an aid to the accused to explain any incriminating evidence against him as he deems fit.

This Section also provides that the answers given by the accused may be taken into consideration by the courts. So the accused
must answer when he is certain that his answer should not be taken as evidence against him for further queries.

Constitutional Right under Article 20(3)

The fundamental right against self-incrimination relates to the fifth amendment of the United States.

The Right to Silence comes from Article 20(3) of the Indian Constitution which states that no person shall be compelled to be a
witness against himself.

This Section provides the Fundamental Right to accused against self-incrimination.

The Characteristics of the privilege are as follows:-

It is a right about a person accused of an offense.

Protects against the compulsion to be a witness.

Protection against compulsion results in giving evidence against himself.

A person against whom the FIR has been recorded by the police and investigation by the Magistrate can claim the benefits of the
prosecution.

In Case State of Bombay v. Kathi Kalu Oghad[1] the Bench consists of eleven judges established that clause(3) of Article 20 is
against the self-incrimination by the accused person. Self – incrimination means conveying the information based on the personal
knowledge of the person and not merely the producing document in the court. Also, the third component of Article 20(3) is a
prohibition only against the compulsion of the accused to give evidence against himself. If the person was in police custody when
he made the statement is not a foundation for interference that he compelled to make the statement. 

Article 21 talks about the Right to life and personal liberty which cannot be taken away except by the procedure established by
law. The Indian Constitution raises the rule against self-incrimination and the purpose of this protection is to prevent torture and
inhuman treatment of the accused at the hands of the investing agencies.

Jurisprudence on drawing Adverse Interferences

This is being questioned under Section 313 of the Code of Criminal Procedure, 1973 against the accused. In Ramnaresh & Ors. V.
State of Chattisgarh [2] It was held that the Court is entitled to draw interference as it may be accepted following the law. Even
though the accused has the right to remain silent at the time of trial under Section 313 of the Code of Criminal Procedure, 1973 it
did not preclude the Court from drawing such an interference. 

Case laws related to the Right to Silence

Smt Selvi v. State of Karnataka

In this case, the Supreme Court of three judges bench held that involuntary administration of the impugned techniques violates
the right of self-incrimination. Also, the Court recognized the protective scope of 20(3) extends to the investigation stage when it
is read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects the accused person as well as the witness who is
examined during the investigation. Article 20(3) protects an individual’s choice between speaking or to remain silent. It also
violates the basic human right as the forcible administration amounts to cruelty. The impugned technique also violates the
standard of substantive due process of law which is given under Article 21(3) of the Indian Constitution.

Nadini Satpathy v. P. L. Dani and Ors

In this case, the Supreme Court held that the scope of Section 161 of the Code of Criminal Procedure, 1973 includes actual
accused and suspects. A person witnessed against himself is not confined to a particular offense but it extends to other offenses
as well. The Honorable Supreme Court took into consideration M. P. Sharma v. Satish Chandra (1954) case and guarantee that
Article 20(3) of the Indian Constitution would be available to those persons against whose First Information Report has been
recorded as accused.

Amrit Singh v. State of Punjab

In this case, the Supreme Court observed that the accused has the right not to give hair under the protection of the self-
incrimination.
Presumed innocent, Right to Remain Silent and Burden of Proof –
 The guarantee of presumption of innocence has a direct link to the Right to self-incrimination that is the accused person has the
burden of proving innocent instead of requiring the prosecution to prove guilty. Article 20(3) of the Indian Constitution has a
connection with the multiple dimensions of the personal liberty under Article 21 of the Indian Constitution which includes the fair
trial and the substantive due process. The purpose of this protection is to prevent torture and inhuman treatment of the accused.
It also stated that if the protection was intended to be confined to being a witness in Court then it would be idle protection.

Conclusion
Right to Silent is a fundamental human right recognized by the legislature that is Parliament. Due process embodies the principle
of liberalism. The Jurisprudence adverse inferences from the silence of the accused. It was inserted to aid the accused in
providing information regarding the incriminating circumstances. Allows the court to draw interference from the answers
provided to them and not from the accused’s silence. Under Section 313 of the Code of Criminal Procedure, 1973 it extent to rely
on such evidence to convict the accused.

Also, Article 20(3) of the Indian Constitution reinforces the Right to Silence of the accused. The legislative intent of the framers
adverse the interference to be drawn from the refusal of the accused to answer a question under Section 313 of the Code of
Criminal Procedure, 1973.

 Thus Judiciary recognizes the Right to Silence as an unbridled right which forms a part of Article 21 establishing its significance in
Criminal Jurisprudence.

Hence, enacting provisions like Article 20(3) in the Indian Constitution gives the right to the accused and witnesses but sometimes
this right can be misused as well. So the better option is to check the cases properly at the pre-trial stages with all the
reasonableness and remove the silence of lamb.