Indian Journal of Law and Legal Research Volume II Issue II | ISSN: 2582 8878

SELF INCRIMINATION UNDER ARTICLE 20(3) OF THE

CONSTITUTION OF INDIA

Tripti Bhaskar, University of Lucknow & Anil Kumar Gautam, Baba Saheb Bhim Rao Ambedkar
University Lucknow

ABSTRACT
The Indian Constitution provides immunity to an accused against self-
incrimination under 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 teneteur prodre accussare seipsum”, which means “No man is
obliged to be a witness against himself.”

It was first incorporated in Criminal Procedure and later ingrained in Part III
of the Constitution of India under Article 20(3). A person against whom
criminal proceedings have been instituted must be conceded the right to
remain silent about the accusation. The privilege has been conferred upon the
accused by the application of the doctrine of presumption of the innocence
which is considered as a cardinal principle in the administration of criminal;
justice.

A defendant must be informed of their rights before making any statements

that may incriminate them. Defendants must not be compelled to give any
statements. In the case that a defendant is pressured into giving a statement
that is self-incriminating, the statement will not be admissible in a court of
law. The Code of Criminal Procedure and the Indian Constitution give
defendants the Right to Silence, i.e. the right to withhold self-incriminating
information to authorities.

The application of Narco-analysis test involves the fundamental question

pertaining to judicial matters and also to Human Rights. The legal position
of applying this technique as an investigative aid raises genuine issues like
encroachment of an individual’s rights, liberties and freedom. It is observed

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Indian Journal of Law and Legal Research Volume II Issue II | ISSN: 2582 8878

that the tests involve “minimal bodily harm” which is also not correct because
laxity in administration of drug can be fatal.

The application of Narco-analysis test involves the fundamental question

pertaining to judicial matters and also to Human Rights.

Polygraph testing combines interrogation with physiological measurements

obtained through the polygraph, or polygraph instrument, a piece of
equipment that records physiological phenomena-typically, respiration, heart
rate, blood pressure and electro-dermal response.

In India, the results of polygraph examination are not accepted as a sole

evidence in court. The main reason is that the scientific community feels that
the test is far from infallibility.

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INTRODUCTION

The Indian Constitution provides immunity to an accused against self-incrimination

under Article 20(3) – 'No person accused of an offence shall be compelled to be a
witness against himself'. ... This prohibition cannot be applied in cases where an object
or document is searched or seized from the possession of the accused.

The fundamental right guaranteed under Article 20 (3) is protective umbrella against
testimonial compulsion in respect of persons accused of an offence to be witness
against themselves.

This protection, as the language goes, is not confined to evidence before Court but
would even cover stage prior to it like investigation subsequent to becoming accused of
an offence. The protection is available not only in respect of evidence given in a trial
before Court but also at previous stage.

A person would thus be accused even if trial has not commenced. The benefit of
Article 20 (3) would be available if the person is accused when he made the statement
or falls in the position of a witness 'but not if he becomes accused' subsequent to the
making of the statement.

PROHIBITION AGAINST SELF INCRIMINATION

The fundamental rule of criminal jurisprudence against self incrimination has been
raised to a rule of constitution law in Article 20(3).
This guarantee extends to any person accused of an offence and prohibits all kinds of
compulsions to make him a witness against himself.

Explaining the scope of this clause in M.P. Sharma v Satish Chandra1 the supreme
court observe that this right embodies the following essentials:

1. it is a right pertaining to a person who is “accused of an offence “

2. it is a protection against “compulsion to be a witness”
3. it is a protection against such compulsion relating to his giving evidence “against
himself”

1
AIR 1954 SC 300

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In this case ,it was held that a person whose name was mentioned as an accused in the
F.I.R. by the police and investigation was ordered by the magistrate, could claim the
protection of this guarantee.

In Delhi Judicial Service Association v State Of Gujarat2 it has been held that mere
issue of notice or pendency of content proceeding does not attract Article 20(3) as the
contemnors’ are not (accused of any offence”

In the case of State Of Bombay V Kathi Kalu3 the supreme court held that the
interpretation of the phrase (to be witness) given in M.P.Sharma case was too broad and
required a qualification “ to be witness” is not equivalent to “furnishing evidence” that
is to say as including not merely making of oral or written statement but also
production of documents are giving material which may be relevant at a trial to
determine the guilt or innocence of the accused.

Self incrimination can only mean conveying information based upon personal
knowledge of the person giving information and cannot include merely the mechanical
process of producing document in court which may through light on any point
controversy but which do not contain any statement of the accused based on his
personal knowledge.

In the case of Nandini Satpathi V P.L. Dani4 Smt. Nandini Satpathy, a former Chief
Minister of Orissa and one time minister at the national level was directed to appear at
the Vigilance Police Station, Cuttack for being examined in connection with a case
registered against her by the Deputy Superintendent of Police, Vigilance, Cuttack,
Under Section 5(2) read with Section 5(1)(d) & (e) of the Prevention of Corruption Act
and Under Section 161/165 and 120-B and 109 I.P.C.

During the course of the investigation, she was interrogated with reference to a long
string of questions, given to her in writing. The dimensions of the offences naturally

2
(1991) 4 SCC 406
3
AIR 1961 SCC 1808
4
AIR 1878 SC 1025

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broadened the area of investigation, and to do justice to such investigation, the net of
interrogation had to be cast wide.

Inevitably, a police officer who is not too precise, too sensitive and too constitutionally
conscientious is apt to trample underfoot the guaranteed right of testimonial tacit
ness. This is precisely the grievance of the appellant, and the defense of the respondent
is the absence of the ‘right of silence’.

According to the court self incrimination is less than “relevant” and more than
“confessional”.
The accused person cannot be forced to answer question merely because the answer
thereto are not implicative when viewed in isolation and confined to that particular case.
He is entitled to keep his mouth shut if the actual or eminent even if the investigation is
not with reference to that. However he is bound to answer where there is no clear
tendency to criminate. This means that the protection is available when police examine
the accused during investigation under section 161 of the cr.p.c.

Mohd. Dastgir V State of Madras5 , the appellant went to the banglow of DSP to offer
him bribe in a closed envelop. The police officer on opening it found the envelope
containing currency note. He threw it at the face of the appellant who took it.
Thereafter, the police officer asked the appellant to handover the envelope containing
currency note.

The appellant took out some currency notes from his pocket and placed it on the table
which was ceazed by the police officer. The appellant contained in appeal before the
supreme court that the currency note should not be produced in evidence as he was
compelled by the police officer to give to him.

The supreme court held that accused was not compelled to produce the note as no
duress was implied on him to produce the notes more ever ,the appellant was not an
“accused “ at the time the currency note were ceazed from him.

5
. AIR 1960 SC 757

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In Amrit singh v State of Punjab6 the supreme court held that

asking an accused of his hair for purpose of identification amount to testimonial

compulsion. The accused has right to refuse to give specimen of his hair for purpose of
identification. He cannot be made witness against himself in view of Art 20(3) of the
constitution.

Yu s u fal i v state of M ah ar ash t r a 7

a tape recorded statement made by the accused thought made without knowledge of the
accused but without force or oppression was held to be admissible in evidence.

Is Narcoanalysis, poligraphy and brain finger printing test of accused violates Article
20(3)
In Selvi V State of Karnataka8 the three justice of the supreme court CJ K G
Balakrishnan, R V Ravindran , JM Panchi unanimously recognized that the above
scientific test method are self incrimination under article 20 and are therefore barred.
The court said that narco analysis technique is cruel in human and degrading behavior
and prohibited by article 21. This protection is also available to the witnesses. It also
violates Article 21 because polygraphy and brain finger prints that are done without the
consent of the accused violate a person right to privacy as it interferes with the pressure
of a person brain process. There is a difference between physical privacy and the
privacy of brain process and this violates both Article 20,21 . The mandatory narco test
of the accused also violates the right to jus, fair and reasonable.

CONCLUSION

In India, when an FIR is lodged against a person, the police, who is known as the
protector of public’s interest, forces the accused person to speak truthfully and for
gaining truth they end up compelling the suspect to accept the charges against themself
but the most affected lot in our country is the uneducated person who is not aware that
they have a right to be silent while in police custody or in the courts trial.

6
AIR 2007 SC 132
7
AIR 1968 SC 147
8
AIR 2010 SC 1974

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In cases where a person is held in jail because of his crime, is of a judge and he has to
understand the basic methodology of a police interrogation that includes mental and
physical torture when a person is not aware for imposing his right under Article 20(3)
because there is a possible chance of poor legal assistance to the vulnerable section of
our society.