The Law Commission
of India, in its 180th Report on "Article 20(3)
of the Constitution of India and the Right to Silence", has
opposed changes in citizen’s fundamental right to silence stating
that such changes would go against our constitutional protection
and also lead to serious problems which are being faced in the
United Kingdom today. It has said if the right is to be curtailed,
it will be ultra vires Article 20(3) and Article 31 of the Constitution
of India. The Law Commission has, therefore, recommended that
law relating to right to silence should not be changed in India.
The right to silence
means that a person can not be compelled to give evidence against
himself, and when he remains silent no adverse inference can be
drawn against him. In India, Article 20(3) of the Constitution,
which comes under the chapter of Fundamental Rights, confers right
against self-incrimination. Similarly, Section 161 (2) Section
313 and Section 315 of the Code of Criminal Procedure, 1973 also
recognize this right to silence. Besides, Article 21 of the Constitution
of India granting fundamental right to life and personal liberty
to the people of India has been interpreted by the Supreme Court
in the Maneka Gandhi case in 1978 to mean that ‘procedure’ as
contemplated in Article 21 should be just, fair and reasonable.
In the UK and Australia,
right to silence of the accused has been diluted at the stage
of interrogation and trial proceedings. The Law Commission in
this report has made an analytical study of legal provisions and
decided cases in respect of right to silence in countries like
USA, UK, Australia, Canada and China.
In UK, some changes
were brought in the law relating to right to silence in 1994.
These changes permit that a ‘proper inference’ may be drawn from
the silence of the suspect during interrogation of the accused
at the trial. The court can comment on the silence in its summing
up to the jury. The jury can take the silence into consideration.
However, in 1999 again some changes were made by introducing provisions
requiring the suspects or accused to be informed of his right
to call an attorney. But English Courts are presently facing several
new practical problems after the 1994 amendments made in the law
relating to right to silence. The Law Commission has referred
to these problems in the report.
In Australia, though
the New South Wales Law Commission has clearly recommended that
provisions like UK which permit the court or jury to draw inferences
from the silence of the suspects or accused, should not be introduced
into the statute in New South Wales, yet it has recommended that
the accused can be compelled to disclose various facts relating
to his defence failing which the prosecution and court can make
comment.
In USA, the Fifth
Amendment relates to the fundamental right against self incrimination
which is similar to Article 20(3) of Indian Constitution. However,
American courts have laid down that silence of the accused can
be taken into consideration only while deciding about the quantum
of punishment. Same is the position in Canada. China has also
introduced a regulations in some regions which entitle an accused
to remain silent. The International Covenant and Civil and Political
Rights, 1966 to which India is also a party, also recognize right
to silence.
