Right to Silence

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The Indian legal justice delivery system mandates ensuring fair trial to every individual. Although the accused is the best source of information in any case but extraction of information from him when he does not plead guilty is a different situation. The right to silence as is available under Article 20 (3) protects an individual from abstraining to answer any question which has the effect of incriminating him. As quest for truth should be the guiding star of a criminal justice system any impediment to discovery of the truth should be eliminated. In the present situation the question faced by us is whether the silence of the accused should be blame worthy or not, should any presumption be made of the guilt as a person? Abstaining from answering questions gives rise to suspicision.

In year 2003, the Committee on Reforms of Criminal Justice System, Ministry of Home Affairs chaired by Dr. Justice V.S. Malimath gave its report and recommendations as to whether any presumption of guilt raised on silence of the accused. In the considered view of the Committee, drawing of adverse inference against the accused on his silence or refusing to answer will no offend the fundamental right granted by Article 20 (3) of the Constitution as I does not involve any testimonial compulsion. Therefore, the Committee recommended drawing appropriate inference from the silence of the accused and also suggested for amendment of the Code as o provide for drawing appropriate inference from the silence of the accused.

The question which now arises is should the inference also be drawn on the silence of accused at he time of initial investigation of the case. It is observed that under the English law an adverse inference to the silence of the accused can be drawn both at the stage of investigation as also at the stage of trial when the accused remains silent. While the European Human Rights commission provides that the adverse inference can be drawn from he silence when a prima facie case exists against the accused and the accused has an access to a lawyer.

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