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against self-incrimination i.e. he cannot be compelled to be a witness against himself.

All the three ingredients must necessarily co-exist before the protection of Art.20 (3) can be claimed. In the absence of any of these, Art.20 (3) cannot be claimed.

Apart from the constitution, the Criminal Procedure Code too gives some protection against self-incrimination. Sub. Sec. (2) of Sec. 161 of the code [31] grants a right to silence during interrogation by the police. The right to silence has been considered by the Supreme Court of India in a three-Judge Bench in Nandini Satpati vs. P.L. Dani [32] where the Supreme Court in tune with the earlier English law and Miranda rights [33] case of American Supreme Court had held that the accused does not have a duty to answer any question that would expose his guilt. Krishna Iyer J observed as follows:

“…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 incrimination is the system of torture by investigators and courts from medieval times to modern days. Law is response to life and the English rule of the accuser’s privilege of silence may easily be traced as a sharp reaction to the Court of Star Chamber when self- incrimination was not regarded as wrongful. Indeed then the central feature of the criminal proceedings, as Holds worth noted, was the examination of the accused.”

Ambit of right to silence in India

The right to silence is a Fundamental Right under the Constitution of India. The Art. 20(3) provides against the right to self-incrimination. It provides that no person accused of an offence shall be compelled to be a witness against himself. Essentially this can be divided into three elements, namely [34] ;

It is a right available only to a person accused of an offence. [35]

It is a protection against ‘compulsion’ ‘to be a witness’ [36]

It is a protection against such ‘compulsion’ resulting in his giving evidence ‘against himself’

It is submitted that to invoke the constitutional guarantees against testimonial compulsion under Article 20(3) it must appear that a formal accusation has been made against the party pleading the guarantee and that it relates to the commission of an offence which in the normal course may result in prosecution. Here again the nature of the accusation and its probable sequel or consequence is regarded as important. Sinha, C. J., speaking for the majority of the Court in Kathi Kalu Oghad's case stated thus :

“To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.”

The natural corollary that must follow is that the wide reach of art. 20 (3) do not extend to such persons who have not been formally charged of any offence. Justice V.R.Krishna Iyer in his Judgement in Nandini’s case relied upon an unreported judgment Ghagwandas Goenka v. Union of India Crl. Appeals Nos. 131 & 132/61 dt. 20-9-63 (Unreported judgement) where it was observed that :

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