RIGHT TO SILENCE

The claim of a witness of privilege against self- incrimination has to be tested on a careful consideration of all the circumstances in the case and where it is clear that the claim is unjustified, the protection is unavailable.

"Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge."

It was further observed :--

"In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that it itself should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself."

Merely because he fancied that by such answer he would incriminate himself he could not claim the privilege of silence. It must appear to the court that the implications of the question, in the setting in which it is asked, make it evident that a responsive answer or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The apprehension of incrimination from the answer sought must be substantial and real as distinguished from danger of remote possibilities or fanciful flow of inference. Two things need emphasis. The setting of the particular case, the context and the environment i.e. the totality of circumstances, must inform the perspective of the Court adjudging the incriminatory injury, and where reasonable doubt exists, the benefit must go in favour of the right to silence by a liberal construction of the Article.

But the true test is; could the witness (accused) have reasonably sensed the peril of prosecution from his answer in the conspectus of circumstances ? The perception of the peculiarities of the case cannot be irrelevant in proper appraisal of self-incriminatory potentiality.

The policy behind the privilege under our scheme, does not swing so wide as to sweep out of admissibility statements neither confessional per se nor guilty in tendency but merely relevant facts which viewed in any setting, does not have a sinister import. To spread the net so wide is to make a mockery of the examination of the suspect, so necessitous in the search for truth. Over- breadth undermines, and such morbid exaggeration of a wholesome protection must be demurred. On the bounds between constitutional proscription and testimonial permission Art. 20(3) could be invoked only against statements which had a material bearing on the criminality of the maker of the statement. "By itself does not exclude the setting or other integral circumstances but means something in the fact disclosed a guilt element. The setting of the case is an implied component of the statement.

Two exculpatory channels are pointed out by Sri Rath, supplemented by a third paramount right founded on constitutional immunity against testimonial self-incrimination. To itemise them for ready reference, the arguments are that (a), 'any person in section 161(1) excludes an accused person (b) that questions which form links in the chain of the prosecution case-these include all except irrelevant ones-are prone to expose the accused to a criminal charge or charges since several other cases are in the offing or have been charge-sheeted against the appellant and (c) the expansive operation of the benignant shield against self-accusation inhibits elicitation of any answers which the accused apprehends may throw inculpatory glow. This wide vindication, if valid, will be the biggest interpretative bonus the court can award to criminals as it foredooms to failure of criminal justice and police truth tracking, says the learned Advocate General. True, courts self-criminate themselves if they keep the gates ajar for culprits to flee justice under the guise of interpretative enlargement of golden rules of criminal jurisprudence.

There is clearly discernible a tendency to reexamine the assumptions on which rest our complex of rules and doctrines which offer obstacles, perhaps wisely, to the discovery and proof of violations of law. In such a re- examination, the cluster of rules commonly grounded under the term 'privilege against self-incrimination', which has for many decades been under attack, peculiarly calls for restudy. In the words of Wigmore, 'Neither the history of the privilege, nor its firm constitutional anchorage need deter us from discussing at this day its policy. As a bequest of the 1600's, it is but a relic of controversies, and convulsions which have long since ceased...... Nor does its constitutional sanction, embodied in a clause of half a dozen words, relieve, us of the necessity of considering its policy.......... A sound and intelligent opinion must be formed upon the merits of the policy."

Justice Douglas made this telling comment: "As an original matter it might be debatable whether the provision of the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself' serves the ends of justice"

In a way this position brings us nearer to the Miranda mantle of exclusion which extends the right against self- incrimination, to police examination and custodial interrogation and takes in suspects as much as regular accused persons. Under the Indian Evidence Act, the Miranda exclusionary rule that custodial interrogations are inherently coercive finds expression (section 26), although the Indian provision confines it to confession which is a narrower concept than self-crimination.

Whether we consider the Talmudic law or the Magna Carta, the Fifth Amendment, the provisions of other constitutions or Article 20(3), the driving force- behind the refusal to permit forced self-crimination is the system of torture by investigators and Courts from medieval times to modern days. Law is a response to life and the English rule of the accused's privilege of silence may easily be traced as a sharp reaction to the court of Star-Chamber when self- incrimination was not regarded wrongful. Indeed, then the central feature of the criminal proceedings, as Holdsworth has noted, was the examination of the accused. The horror and terror that then prevailed did, as a reaction give rise to the reverential principle of immunity from interrogation for the accused. Sir James Stephen has observed :

"For at least a century and a half the (English) Courts have acted upon the supposition that to question a prisoner is illegal This opinion arose from a peculiar and accidental state of things which has long since- passed away and our modem law is in fact derived from somewhat questionable source though it may no doubt be defended.

Jagannadhadas, J., in M. P. Sharma's(1) case observed (1) [1954] S.C.R. 1077, at 1085, 1086.

"Since the time when the principle of protection against self-incrimination became established in English law and in other systems of law which have followed it, there has been considerable debate as to the utility thereof and serious doubts were held in some quarters that this principle has a tendency to defeat justice. In support of the principle it is claimed that the protection of accused against self-incrimination promotes active investigation from external sources to find out the truth and proof of alleged or suspected crime instead of extortion of confessions on unverified suspicion.... On the other hand, the opinion has been strongly held in some quarters that this rule has an undesirable effect an social interests and that in the detection of crime, the State is confronted with overwhelming difficulties as a result of this privilege. It is said this has become a hiding place of crime and has outlived its usefulness and that the- rights of accused persons are amply protected without this privilege and that no innocent person is in need of it. . . ."

In Hoffman v. United States (341 US 479) the Supreme Court of the United States considered the scope of the privilege against self-incrimination and held that it would extend not only to answers that would in themselves support a conviction but likewise embrace those which would furnish a link in the chain of evidence needed to prosecute the claimant. However, it was clarified that the link must be reasonably strong to make the accused apprehend danger from such answer. Merely because he fancied that by such answer he would incriminate himself he could not claim the privilege of silence.

Not that a lawyer's presence is a panacea for all problems of involuntary self-crimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not otherwise fully appreciated.

They must invariably warn--and record that fact about the right to silence against self-incrimination; and where the accused is literate take his written acknowledgement.