Privilege against self-Incrimination in INDIA
Fundamental Right is an essential human right of all citizen or person. Fundamental Right history started from many document asserting right in different part of the world, such as, in 1215 Magna Carta, in English Bill of Right in 1689, after French Revolution Declaration on the Right of Man in 1789, and the US Constitution Bills of Right in 1791.
In India Fundamental Right history can we trace from ancient time, modern human right or fundamental right can we see during freedom struggle. In 1931, Karachi Session of INC adopted a resolution on Fundamental Right. After independence constituent assembly formed and constitution frame by INDIAN himself. Framer of Indian constitution given much focus on human right of citizen or people. And added part III in constitution or part III deal with Fundamental right, Article 14-32 given different types of fundamental rights.
Article 20 deals with Protection in respect of conviction for offences.
Privilege againstSelf-Incrimination in India
Clause (3) of Article 20 provides that no person accused of any offence shall be constrained to be a witness against himself. So Article 20(3) embodies the common doctrine of English and American jurisprudence that no one shall be compelled to give indication which may expose him to prosecution for crime. The basic theory of criminal law which is actually bed rock of English jurisprudence is that an accused must be supposed to be innocent till the contrary is proved.
However the foremost issue arose that who is a accused person?
Who is accused?
The term accused person connotes a person against whom evidence is required to be led in criminal proceeding.
The term accused person in section 24 of the Evidence Act built-in a person who afterward becomes an accused, and that he need not have been accused of an offence when he made the confession in question. (State of UP V. Deoman upadhyaya AIR 1960)
The protection of Article 20 Clause 3 of the Indian constitution becomes existing to a person as in a little while as he is named as an accused either in FIR made under section 154 of Cr.P.C .
(Narayanla Bansilal v. Maneek Phiroz Misstry AIP 1961)
The fortification given under Article 20(3) is in the character of privilege to be exercised by person accused of any offence. Accused includes a infer or a person whom there are some oral evidence pointing toward guilt.
Person Accused of offence
The privilege under article 20(3) in just accessible to accused. It’s however not obligatory to avail the privilege that the authentic trial commenced before court. Therefore person against whom the FIR recorded spontaneous by Magistrate can claim the detriment of the safeguard.
Yet name is not point out in the FIR an accused, it will not take out of the kind. In America the right against self incrimination in not only available to accused but also to witness. But not in India.
In case Nandini satpathey V. P.L. Dani AIR 1978it was held that, the right extends to witness and accused alike.
In case Narayan lal V. Maneek S. Mistry AIR 1961 SC 29, it must appear that a formal accusation have been made not in favor of the party insistent the assurance and that it relates to the commission of offence which in the normal course result in persecution.
In Sharma V. Satish SC has point out that there is no grounds to believe that the protection of Article 20(3) is ‘’to be a witness and not to appear as a witness’’.
In Delhi Judicial Service Association V. State of Gujarat AIR 1991 SC held that meager issue of a notice of contempt of court to a person for pendency of contempt of court proceeding against him, does not attract Article 20(3).
Compulsion to be witness
The use of Narcoanalysis test involves the fundamental question pertaining to judicial matters and also to human Right. The legal point of applying this system as investigative aid raises authentic issues like violation of an individual’s right liberties and freedom.
In case State of Bombay V. Kathi Kalu AIR 1961, court held that the accused person can’t taketo has been compelled to be a witness against himself merely because he made a declaration which he was in police custody, without no matter which more.
In Kalawati V. H.P court held that applicability of the article 20(3) there must be compulsion to be witness. Article 20(3) does not apply to class where have been no compulsions.
Section 342, Cr. P.C., 1898, or s, 313 Cr. P.C., 1973, permits the court to question the accused generally after witness for him have been examined.
The SC held in R.M.Malkani V. State of Maharashtra AIR 1973 that the telephonic chat could be used in proof as is was deliberate and there was no compulsion to take out the equivalent.
Section 15 of TADA Act confession made by the accused was made admissible in evidence. In Ayub V. State of UP 2002, SC held.
Article 20(3) Different proceeding
Section 3(38) of General Clauses Act define. The protection under Article 20(3) is available only in criminal proceeding.
A difference of opinion between High Court on the question whether section 151 of Cr. P.C could be invoked to compel a person to be subject to a medical examination was resolved by the SC in Sharda v. Dharmpal 2003.
In cases Shyam Sunder Chowkhani V. Kajal Kanti Biswas AIR 1999, Gangardharappa V. Basavaraj AIR 1996, Nokbul V. State of Bombay AIR 1953, Narayan Lal V. Raneek AIR 1961 SC held that the protection of Article 20(3) does not therefore extend to parties and witness in civil proceeding other than criminal.
Article 20(3) is not applicable to administrative investigation even through the main aim of these proceeding may be to get out whether the individual has commit an offence or no.
Cases- Popular Bank v. Madhava nair, AIR 1965, K. Joseph Augusthi v. Narayanan, AIR 1964 etc. In also these cases court held that there are no volition of article 20(3).
In Illias V. Collector of Customs 1970 it was held that the customs offices are not police and any statement recorded them is not inadmissible in evidence.
In Poolandi V. Superintendent, Central Excise 1992 the Supreme Court explanation of article 20(3) which embodies a guarantee against self-incrimination. A guarantee against self-incrimination can be claim only by a person who is accused at the offence at the time he is compelled to make the incriminating statement.
Privilege Against self-incrimination in USA and Britain
The 5th amendment of the US constitution provide inter alia:
‘’ No person….. Shall be compelled in any criminal case to be a witness against himself.’’
USA judicial system tried to interpret this concept in wider concept. The privileges against self-incrimination have been apply both on accused and witness as well as in proceedings – civil and criminal.
It is a fundamental theory of the common law that a person accused of offence shall not be compelled to find out document which incriminate himself.
Thus, incriminate himself protected by the Indian constitution. In Article 20(3) given privilege against self-incrimination. Article 21 grants a further fundamental right to life and liberty and states that the liberty of a person can’t taken away except by a procedure laid down by law.
The constitution of India made rules against self-incrimination. The probation impose direct by the article 20(3) in criminal proceeding. In India privilege against self-incrimination only in criminal proceeding, not for civil. In USA constitution privileges not only provided in criminal proceeding but also in civil proceeding. In Britain common law system also provide privileges against self-incrimination.
In India SC deals with many cases regarding Article 20(3) or privilege against self-incrimination in criminal cases. Many petition had filed in SC, in respect of privileges against self incrimination in civil case, but court explain 20(3) only for criminal proceeding not civil proceeding.