Privilege against self-Incrimination and Article 20(3) in INDIA

Privilege against self-Incrimination and Article 20(3) in INDIA

Fundamental Right is the essential human rights of all citizens or person. Fundamental Right history started from many documents asserting right in different parts of the world, such as, in 1215 Magna Carta, in English Bill of Rights in 1689, after French Revolution Declaration on the Rights of Man in 1789, and the US Constitution Bills of Right in 1791.

In India Fundamental Rights history can be traced from ancient times, modern human rights or fundamental rights can be seen during the freedom struggle. In 1931, the Karachi Session of INC adopted a resolution on Fundamental Rights. After independence constituent assembly was formed and the constitution was framed by INDIAN himself. The Framer of the Indian constitution gave much focus on the human right of citizens or people. And added part III in the constitution or part III deals with Fundamental rights, Articles 14-32 give different types of fundamental rights.

Article 20 deals with Protection in respect of conviction for offences.

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 an indication which may expose him to prosecution for a crime. The basic theory of criminal law which is actually the bedrock of English jurisprudence is that an accused must be supposed to be innocent till the contrary is proved.

However, the foremost issue arose who is the accused person?

The term accused person connotes a person against whom evidence is required to be led in criminal proceedings.

The term accused person in section 24 of the Evidence Act built-in a person who afterwards becomes an accused, and 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 Mistry 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.

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 spontaneously 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 1978 it 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 meagre issue of a notice of contempt of court to a person for the pendency of contempt of court proceeding against him, does not attract Article 20(3).

The use of the Narcoanalysis test involves fundamental questions pertaining to judicial matters and also to human Rights. The legal point of applying this system as an investigative aid raises authentic issues like violation of an individual’s rights liberties and freedom.

In the case State of Bombay V. Kathi Kalu AIR 1961, court held that the accused person hadn’t take to has been compelled to be a witness against himself merely because he made a declaration that he was in police custody, without no matter which more.

In Kalawati V. H.P court held that applicability of article 20(3) there must be a compulsion to be a witness. Article 20(3) does not apply to classes where there 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.

Section 3(38) of General Clauses Act defines. The protection under Article 20(3) is available only in criminal proceedings.

A difference of opinion between the High Court on the question of whether section 151 of CrPC 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.

Concept of Res Sub Judice under Section 10 of CPC- 1908

 Article 20(3) is not applicable to administrative investigation even though the main aim of these proceedings may be to get out whether the individual has committed an offence or no.

Cases- Popular Bank v. Madhava nair, AIR 1965, K. Joseph Augusthi v. Narayanan, AIR 1964 etc. In 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 claimed only by a person who is accused at the offence at the time he is compelled to make the incriminating statement.

The 5th Amendment of the US Constitution provides 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 a wider concept. The privileges against self-incrimination have been applied both on the 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 an offence shall not be compelled to find out documents which incriminate himself.

       Thus, incriminates 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 is imposed directly by Article 20(3) in criminal proceedings. In India privilege against self-incrimination is only in criminal proceedings, not for civil. In US Constitution privileges not only provided in criminal proceedings but also in civil proceedings. In Britain common law system also provides privileges against self-incrimination.

In India SC deals with many cases regarding Article 20(3) or privilege against self-incrimination in criminal cases. Many petitions had been filed in SC, in respect of privileges against self-incrimination in a civil case, but the court explained 20(3) only for criminal proceedings not civil proceedings.