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minate him. Yet when he has stolen a bicycle this is the accepted situation vis a vis police and court, entrenched in our Constitution. He does not even have to raise this defence, the constitution does it for him. And we don’t find it absurd! We don’t consider whether the legal walls that we erect that impede society’s search for the truth are warranted. And we have no inkling of the cost of our strange procedure in monetary terms and in wasted judicial, prosecutorial and police man-hours. Those that know are silent.”

K van Dijkhorst.

Bentham calls the rule “one of the most pernicious and irrational notions ever to have entered a man’s mind”. Eminent jurists have expressed very firmly in favour of the right to question the accused to elicit relevant information. Drawing an adverse inference on the silence of the accused is a corollary that flows from the right to put questions to the accused. If the court can draw an adverse inference against the accused from his silence there would be less incentive for the police to resort to compulsion or trickery to obtain a confession. If drawing of such adverse inference were not permissible it would tend to encourage such behavior. It needs to be recognized that this right originated in a different context; in a different era and law being a living process that it is should reflect the changing contours of societal values, ethics and mores.

The Malimath Committee is of the considered view that adverse inference should be drawn from the silence of the accused. Many countries are toeing this line. Crime and Criminals have become sophisticated and more threatening to the sovereignty of the nation in light of recent terrorist violence. It is submitted that extending such a right of silence to such person accused or suspected and prevent him from being subjected to various scientific tests shall amount nothing more than gross miscarriage of justice. In this light, the stance taken by the High Court that being subjected to brain mapping or narco analysis is not testimonial compulsion, is commendable and progressive. It is heartening that judiciary for a moment has shunned the robes of activism and donned the hat of realism. It is ignorance at its best and illogical at its worst to suggest that right to silence provides for better police detection and methods. In this age, when the role of police force in a welfare state is multidimensional, it is indeed pragmatic to expect them to interrogate the suspects in the shade and than go about in the sun hunting evidence.

These days, hardly any section of our public life, is corruption-free. The corruption has its genesis in the nexuses of the corrupt politician with the dishonest bureaucrat. Unprincipled businessmen (like Telgi, Harshad Mehta) also stand to benefit from this state of affairs. So criminals, indulging in extortion and looting, have joined their kin in bureaucracy and politics. Murderers, dacoits, rapists and hit men of various hues have made it to the national and state legislatures. The cushions of legal safety, in the form of appeals after appeals, and the principles such as ‘everybody is innocent till proved guilty’ and ‘no one has the right to be witness against himself’ leads to the guilty escaping for one reason or the other. Such persons hire the best legal brains, who are able to get them out of trouble, by legal quibbling.

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