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 Right to Silence and the Law:
A Comparative Analysis
Dr Arun Kumar Singh1

I. Introduction
A civilised system of criminal jurisprudence generally accord to the
judiciary some means of excluding confession or admission obtained by
improper method. This is because in a civilised society it is vital that a
person in custody or charged with an offence should not be subjected to ill
treatment for extracting evidence. This 'Right to Silence' protects an
innocent who find himself unable to corroborate the self-exonerating
accounts by verifiable evidence. This right is a universally recognised right
of the accused, which comes under the Adversarial System. The System is
followed in most of the Common Law countries which has basic principle of
'presumption of innocence of the accused'. Undoubtedly, an accused is a
good source of information about the commission of offence however, to
collect the evidence from an accused some extra-constitutional means are
adopted and sometimes the accused is even put under duress for the same.
Coming to the case of India, Article 20(3) of the Constitution provides 'right
against self-incrimination' for the protection of the accused. But the question
is whether this protection is available to the accused only or even to a
suspect? Does this Article give liberty to an accused to remain silent
throughout the proceeding or in a limited sense? Can adverse inference be
drawn against accused if he remains silent? These are the main issues which
have been discussed in this paper. For this discussion a comparative analysis
of provisions of different countries are taken into consideration. It also
attempts to highlight the role of Indian Judiciary in this context. At the end
of the paper some of the suggestions are muted as a part of the conclusion.

II. Concept of 'Right to Silence'

The 'right to silence' is a principle of common law and it means that
normally Courts or Tribunals should not be invited or encouraged to
conclude, by parties or prosecutors, that a suspect or an accused is guilty
merely because he has refused to respond to questions put to him by the
police or by the Court. 2 Most of the common law countries follow the

Assistant Professor, Department of Law, North Eastern Hill University, Shillong,

Meghalaya-793022 Email arunlaw69 @gmail.com, aksingh 111 @yahoo.co.in
2 Law Commission of India, 180'h Report on Article 20(3) of the Constitution of
India and the Right to Silence, 2002, p. 3 .
Adversarial System where the concept of 'presumption of innocence' i.e. a
person is presumed to be innocent unless the guilt is proved against him, is
applied. This presumption is different from the Inquisitorial System followed
by the civil law countries, where there is presumption of guilt. In earlier
Indian system there was a philosophy that 'maunam sweekar laxanam' i.e.
the silence on the question, means the acceptance of the same. The origin of
right to silence may not be exactly clear but the right goes back to the middle
age in England. During the 1 6th century, the English Courts of Star Chamber
and High Commission developed the practice of compelling suspects to take
an oath known as the "ex-officio oath" and, the accused had to answer
questions, without even a formal charge, put by the judge and the prosecutor.
If a person refused to take oath, he could be tortured. These Star Chambers
and Commissions were later abolished in 1641. This event is regarded as an
important landmark event in the evolution of 'right to silence'. It is based on
the principle that "No man is bound to accuse himself'. This principle found
its root from the maxim 'nemo debet prodere ipsum', i.e. there is privilege
against self-incrimination. The privilege is a fundamental canon of Common
Law Criminal Jurisprudence.' The basic feature of this principle is; (i) the
accused is presumed to be innocent, (ii) the prosecution is to establish the
guilt, and (iii) the accused is need not to make any statement against his
will.4 The maxim 'nemo debet prodere ipsum', had its origin in a protest
against inquisitorial system and unjust method of interrogating accused
persons. The 'right to silence' has various facets. One of them is 'actiori
incumbit onus probandi' which means, the burden of proof is on the State or
rather the prosecution to prove that the accused is guilty. Another philosophy
behind 'right to remain silent' is that a person cannot be compelled to
incriminate himself.

III. Right to Silence and International Scenario

The Universal Declaration of Human Rights, 1948 includes some
aspect of 'right to silence' in Article 11 para 1.5 Similarly, The International
Covenant on Civil and Political Rights, 1966 to which India is also a party,
provides about one or other aspect of right to silence.6 It also guarantees

3 Professor M.P. Jain, Indian Constitutional Law, Lexis Nexis, Butterworth

Wadhwa, Nagpur, 2010, p. 1 16 3
4 Ibid.
5 Article 11 Para one provides "Everyone charged with a penal offence has the
right to be presumed innocent until proved guilty according to law in a public
trial at which he has had all the guarantees necessary for his defence."
6 Article 9 para 1 says, "Everyone has the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law".
clearly that everyone has a right not to be compelled to testify against
himself or to confess guilt.
The European Convention for the Protection of Human Rights and
Fundamental Freedom, 1950 (herein after called European Convention on
Human Rights) came into force on September 1953. This Convention
provides that in the determination of his civil rights and obligation, or of any
criminal charges against him everyone is entitled to fair trial and public
hearing within a reasonable time by an independent tribunal established by
law.8 Similarly, Article 6(2) of the Convention states that everyone charged
with an offence shall be presumed innocent until proven guilty according to
Law. 9 However, the thing to be noted is that Article 6(1) of the European
Convention only speaks of a right to a fair trial and Article 6(2) talks about
presumption of innocence. There is no reference to a right against self-
incrimination. While considering the concept of fair trial the European Court
said that right to remain silent is the part of it.10 It is the crux of the fair
procedure that if police were questioning the accused regarding his self-
incrimination, he could remain silent.11 By providing the accused with such
a protection it was tried to avoid miscarriage of justice.
The American Convention on Human Rights which came into force
on July 11, 1978 stipulated a number of civil and political rights, for all
persons. It provides that everyone, subject to the jurisdiction of the State
parties, has right to fair trial. 12 Similarly, African Charter on Human And
People Rights which was adopted on 27 June 1981 and entered into force on
October 21, 1986, provides that everyone has right to have his cause heard
which comprises right to be presumed innocent until proved guilty.13

Article 9 para 2 says; that "anyone who is arrested shall be informed, at the time
of arrest, of the reasons for his arrest and shall be promptly informed of the
charges against him".
7 Article 14(3) (g) of International Covenant on Civil and Political Rights,1966
provides, "in the determination of any criminal charge against him, everyone
shall be entitled to the following minimum guarantee and full equality that not
to be compelled to testify against himself or to confess guilt.
Article 6(1) of the European Convention on Human Rights says, "every person
charged has a right to a 'fair' trial."
9 Article 6(2) of the European Convention on Human Rights says "everyone
charged with a criminal offence shall be presumed innocent until proved guilty
according to law."
10 D. D. Basu, Commentary on the Constitutional Law of India, Lexis Nexis
Butterworth, Wadhwa, Nagpur, 2008, p. 2 99 6 .
11 Ibid.
12 Article 8 of the American Convention on Human Rights
13 Article 7 of the African Charter on Human and People Rights
IV. Provisions in Other Countries
IV.I. Position in U.K.
It is a fundamental principle of English System of Criminal Justice
that a person accused of an offence shall not be compelled to disclose any
facts which incriminate himself. This principle of immunity is founded on
the 'presumption of innocence'. The European Court in Murray vs. United
Kingdom14 held that the encroachments into the right to silence made in
Ireland by the Irish law of 1988 did not violate the right to a fair trial nor the
presumption of innocence mentioned in Article 6 of the European
Convention. It was further held that the trial Judge could not draw an adverse
inference merely on account of the silence of the accused and that the guilt
of the accused must be prima-facie established by the prosecution. An
additional condition was laid down that the new provisions could not be
resorted to unless it was proved that the accused was given an opportunity to
express his views.Therefore, no presumption can be raised on account of the
silence of the accused unless a prima-facie case of guilt has been established
by the prosecution, it is difficult to see, and several jurists have also stated
similarly, there is no extra advantage in permitting the judge to rely on the
silence of the accused. After this judgment the English Parliament, which
had in the meantime introduced similar provisions in the Criminal Justice
and Public Order Act, 1994, as applicable to England and Wales, amended
the said Act by the Youth Justice and Criminal Evidence Act, 1999 by
introducing provisions requiring the suspect or accused to be informed of his
right to call an attorney. 15 Sub-section 2(A) was introduced in 1999 in
Section 34 and that section deals with pre-trial silence. 16 A similar provision
was introduced in Section 35 in the form of 3A which dealt with right to 1
silence at the trial. In another case, Condron vs. The United Kingdom 7
which was rendered in may 2000, is the case directly arose under the English
Act of 1994, the Court relied upon the judgment in Murray's case and stated
that the right to silence was not absolute but at the same time a prima facie
case must be made out and the safeguards mentioned in that judgment that
an opportunity must be given to the accused or suspect to call for a lawyer,
must be followed. In this case the accused persons exercised their right to
call for a lawyer and as the lawyer advised them to remain silent during
interrogation by the police, they remained silent and when cross-examined at
the trial (a procedure which does not obtain in India), they said that they

14 (1996) 22 EHRR 29
15 Supra note 1 p. 12
16 Section 34(2A) says; Where the accused was at an authorized place of detention
at the time of the failure, sub-sections (1) and (2) above do not apply if he had
not been allowed an opportunity to consult a solicitor prior to being questioned,
charged or informed as mentioned in sub-section (1) above."
17 Supra note 1 p. 13
remained silent because of the advice of the lawyer. The Court in this case
observed that, if the accused remained silent, they run the risk of an adverse
inference. But if they seek legal advice and state that their lawyer advised
them to remain silent, the Court would then say that there was a fair trial and
that they had waived their privilege of confidentiality. The Court further
observed that any other conclusion would be at variance with the
fundamental importance of the right to silence, a right which, as observed
earlier lies at the heart of the notion of a fair procedure. But presently a
problem is taking place that in most of the cases, the accused would say,
upon being questioned, that his lawyer had asked him to remain silent. When
and what suggestion was given by the lawyer is not clear. Also, the present
law requires the Court to draw a 'proper inference' against the accused that
has remained silent when questioned by the Police or by the Court. There are
no guidelines as to what type of inference should be drawn in different
situations or facts.In England, it has been lamented that the Government had
brought the changes in 1994 on the basis of the 11 Report of 1972 of the
Criminal Law Review Committee even though two other Royal
Commissions had recommended that the right to silence could not be
encroached upon. However, the Privy Council in case of Braw vs Scott18
observed that there was need for fair balance between the general interest of
the community and personal right of the individual. This right is not absolute
and the accused cannot remain silent throughout criminal proceeding, and if,
the Court seeks to evaluate the evidences against him and he did not speak
then adverse view may be drawn.

IV.II. Provision in USA

The Fifth Amendment of the U.S. Constitution relates to the
fundamental right against self- incrimination. It states: "No person shall be
compelled in any criminal case to witness against himself." First time the
question relating to the right to silence came to be considered in case of
1 9
Adamson vs. California. In this case the minority opinion referred the Fifth
Amendment and viewed that the right to silence was absolute and it could
not be curtailed. Subsequently, in another case Griffin vs. California20 the
Supreme Court of USA stated that the defendant has an absolute right not to
take the stand. An accused is permitted to give evidence on his own behalf if
he so elects. But if he is unwilling to give the evidence and exercises his
right to silence no adverse inference of guilt can be drawn. An innocent
defendant may want to avoid taking the "stand" because he feels that he is
likely to perform badly, being uninformed about the law as compared to an

18 (2001) 2 All ER 97
19 (1947) 332 US 46
20 (1965) 380 US 609
experienced prosecutor who is skilled in the artificial rules governing court
rooms and that the prosecutor may be able to trip him up. 1
In Miranda vs. Arizona 22 case the accused was arrested and taken to
the interrogation room where the confession of accused was taken. But
during interrogation police officer did not ensure the accused that he had free
choice to make the statement. The Court in this case held that when a suspect
person in police custody is subject to interrogation, it is duty of the police to
give information to the person who is suspect of the offence in clear and
unequivocal term that the suspect has a right to remain silent. He has also a
right to the presence of his attorney during the questioning. Nowhere it has
been laid down by the US Supreme Court that on account of the silence of
the accused, an adverse inference can be drawn or that the silence can be
treated as a piece of corroboration for inferring of guilt.
However, this 23
privilege is not absolute, it has certain limitations
which are as follow:
i. The accused is free to wave this privilege. But merely silence of
accused does not allow to presume the waver of this privilege. This
is because the provision made against self-incrimination is made
solely for the benefit of witnesses.
ii. Where an accused has been pardoned or otherwise given immunity
from prosecution he may be compelled to give such evidence.
iii. This protection is available to the witness from giving evidence
against his consent. If he himself voluntary wants to give the
evidence this provision does not bar him.
iv. It does not include any immunity from criminal liability for perjury
committed while giving evidence. Justice Warren has also expressed
his concern regarding protection against self-incrimination. He said
that accused must be warned that he had right to remain silent
anything he was saying could be used against him.

V. Indian Position
Silence can always be consistent with innocence. This is because the
accused might remain silent because of shock, confusion, embarrassment, or
have desire to protect another person or to avoid reprisals. Sometimes, it may
be that he has problem of language or literacy. This is the universally
recognised right which has been conferred as fundamental rights under

21 Supra note 1 p. 3 1
22 (1966) 384 US 436
23 Supra note 9 p. 2994
Article 20(3) of the Constitution of India in the form of protection against
self-incrimination. It provides, "No person accused of an offence shall be
compelled to be witness against himself." From the analysis of the Article it
appears that, (i) this right is available to a person 'accused of an offence';
(ii) it provides protection against 'compulsion' to be witness, and (iii) it is a
protection against such compulsion resulting in his evidence 'against
himself'. All these three things must be simultaneously present to get the
protection of Article 20(3). The area within which this doctrine operates
should not be enlarged, but within its limited area it should be given full
effect. 24 Article 20(3) is a humane Article which guarantees and ensures
dignity and integrity of an individual. The refusal of it is a violation of
Adversarial System.
Similarly, section 315 of the Criminal Procedure Code, 1973
provides protection of the accused against self-incrimination. The section
says that an accused is always a competent witness for his defense but he
cannot be compelled to give evidence unless he himself requests for that and
his failure to give evidence is not subject to form adverse opinion. Not only
this but section 164 of the Criminal Procedure Code also, provides that a
person cannot be compelled to give evidence which incriminates him. The
magistrate must inform him that he is not bound to give such evidence which
incriminates him because that can be used against him.
The protection of accused against self-incrimination was available
even prior to the Constitution of India. Section 24 of the Indian Evidence
Act, 1872 excludes confession caused by any threat or promise. 26 However,
this promise or threat should not be spiritual but it should be temporal in
nature. Similarly, section 25 and 26 of the Act provides protection of the
accused.27 Section 27 also provides protection in limited sense. 2' However,

24 H. M Seervai, Constitutional Law of India, Voi. 2 1993, Universal Law

Publishing C. Pvt. Ltd. New Delhi, p.1062
25 Section 315(1) of The Criminal Procedure Code says; "Any person accused of an
offence before a Criminal Court shall be competent witness for the defence and
may give evidence on oath in disproof of the charge made against him or any
person charged together with him at the same trial:
Provide that-
(a) He shall not be called as witness on his own request in writing;
(b) His failure to give evidence shall not be made the subject of any comment by
any of the parties or the Court or give rise to any presumption against himself
or any person charged together with him at the same trial.
26 According to section 24 of theIndian Evidence Act, "A confession made by an
accused is irrelevant in a criminal proceeding, if the making of confession
appears to the Court to have been caused by inducement, threat or promise...."
27 Section 25 of the Indian Evidence Act says; "No confession made to police
officer shall be proved as against a personaccused of any offence"
there are certain provisions under the Indian Evidence Act, 1872 which
impose obligation on the accused to give evidence in his favour. 2 9 Although
it is a cardinal principle of criminal jurisprudence that actiori incumbit onus
probandi (burden of proof of an offence will always lie on prosecution).3 0
But simultaneously, section 102 of the Indian Evidence Act says that once
prosecution proves his case the onus of proof sifts on the other party to
disprove the proof given by the prosecution. If he does not disprove the case
then he can be held liable. Supreme Court in case of A. Raghvamma vs.
Chenchamma31 held that there is an essential distinction between burden of
proof and onus of proof. Burden of proof lies upon the person who has to
prove a fact and it never shifts but onus of proof shifts. Same view has been
endorsed in Anil Rishi vs. Gurubaksh Singh3 2 case. Although, the role of
accused is just to create reasonable doubt against the evidence given by the
prosecution, because the standard of proof in criminal cases under the
Adversarial System is to prove the case 'beyond reasonable doubt',
otherwise benefit of doubt is given to the accused. However, if the accused
remains silent and does not create reasonable doubt he cannot avail such
benefit. Similarly, section 105 of the Indian Evidence Act 1872 says that if a
person is accused of an offence, it is to the accused to provide the
circumstances or proof to bring the case within any of the general exceptions
in the Indian Penal Code or within any special exception in any other Code.
If the accused is unable to do so the Court shall presume the absence of such
circumstances.
From the provision of Article 20(3) and other Indian Provisions it
appears that benefit of the protection against self-incrimination is applied to
the accused in criminal proceeding not in civil proceeding. And also, it does
not protect all witnesses as in USA. This proceeding must be before a Court
of Law or other Judicial Tribunal before whom a person may be accused of
an offence.33 The immunity of Article 20(3) starts when the name of the

Section 26 of the Act provides; "No confession made by any person while he is
in the custody of a police officer, unless it be made in the immediate presence of
a Magistrate, shall be proved as against such person"
21 Section 27 says "Provided that, when any fact is deposed to as discovered in
consequence of information received from a person accused of any offence, in
the custody of a police officer, so much ofsuchinformation,whether it amounts
toconfession or not, as relates distinctly to the fact thereby discovered may be
proved"
29 Section 101, 103, 105 of the Indian Evidence Act, 1872
30 Section 101 of the Indian Evidence Act provides; "Whoever desires any Court to
give judgmentas to any legal right or liability dependent on the existence of fact
which he asserts must prove that those facts exists.
31 AIR 1964 SC 138
32 AIR 2006 SC1971
33 Maqbool vs State of Bombay (1953) SCR 710
person is mentioned as accused in the First Information Report or a
complaint which would result in prosecution and he is compelled to make
the statement.34 But one more situation is there under section 41 of the
Criminal Procedure Code, 197335 where the police officer may arrest a
person on the basis of suspicion that the accused was involved in the
commission of a cognizable offence or he was having such weapon which
could be used for the commission of cognizable offences. During the custody
if he makes some incriminating statement then it is inadmissible under
section 2536 as well as section 2637 of the Indian Evidence Act, 1872 and
these provisions are prior to the Constitution of India. However, section 27
of the Indian Evidence Act says that, if the arrested person makes confession
and narrates some relevant statement (such as about the weapon used in the
crime) which leads to discovery of the fact then the second part of the
statement is relevant whereas the first part i.e. confessional part is
inadmissible. But what will be the situation if the statement which leads
discovery was obtained under compulsion? 38 Section 24 of the Indian
Evidence Act says that all confession made under inducement threat or
promise are irrelevant. However there is no such provision under section 27
of the Act. So there is contradiction between section 24 and 27. However,
Supreme Court in case of Ramakrishna vs. State of Bombay39 said that
Article 27 was an exception of section 24, 25 and 26. So, the section 27
allows that part of the statement made by the accused to the police "whether
it amounts to confession or not" which relates distinctly to the fact thereby
discovered, to be proved. Thus, even a confessional statement before the
police which distinctly relates to the discovery of the fact may be proved
under section 27. 4 0 But the Court made itclear in case of Pulukuri Kottaya vs.
Emperor4 1 that the 'fact discovered' and 'object produced' cannot be treated
same. The "fruits of poisonous tree" doctrine which was incorporated in
section 24, 25 and 26 of the Indian Evidence Act forbids evidence obtained
directly or indirectly as result of violation of a defendant's constitutional

34 M.P.Sharma v Satish Chandra 1954 SCR 1077 at 1088

35 Section 41 of the Criminal Procedure Code
36 Section 25 of the Indian Evidence Act provides, "No confession made to a police
officer shall be proved as against a person accused of any offence"
37 Section 26 of the Indian Evidence Act says; "No confession made by any person
whilst he is in the custody of a police officer, unless it be made in the immediate
presence of Magistrate, shall be proved as against such person."
38 Supra note 9 p. 3 0 13
39 AIR 1955 SC 104
40 Ram Jethmalani and D. S. Chopara, The Law of Evidence, Thomson Reuters,
Legal 2013, p. 4 3 4
4' AIR 1947 PC 67
rights. It was said in the case of Nandani Satpathi vs. PL Dani42 that the net
of privilege should not be spread out in such a way as to misuse it.
Besides, the above discussed point another important issue in this
regard is whether the immunity under Article 20(3) is confined to the
statement made at the trial within the Court room or it extends to pre-trial
statement too? It must be noted that section 161(1) of Cr. PC empowers
police officer to ask the question to any person who is acquainted with the
facts but such person is not bound to answer those question which would
have tendency to expose him to a criminal charge. Section 161(2) castes a
wider protective net to protect normally accused person as well as those who
are examined as suspect and witness during the investigation stage.4 3
Therefore, right against self-incrimination protects person who have been
formally accused as well as those who are examined as suspect in criminal
cases. Although, Article 20(3) uses the word accused for this protection. So
a harmonious construction should be done between Article 20(3) of the
Constitution and section 161(2) of the Criminal Procedure Code and include
suspects of offences in the purview of its protection. Supreme Court in case
of M. P. Sharma v Satish Chandra44 said that the phrase used in Article
20(3) is 'to be witness' not 'to appear as witness' which reflects that 'to be
witness' is not merely in respect of testimony given under compulsion before
the Court-room but testimony obtained previously from him.

VI. Rationality and Right to Remain Silent

As discussed in the preceding paragraphs of the paper the 'right to
silence' is an essential safeguard in the criminal procedure. Its underlying
rationale broadly corresponds with two objectives. Firstly, that of ensuring
reliability of the statement made by an accused, and secondly, ensuring that
such statement are made voluntarily.45 If an accused is compelled to testify
there is every likelihood of such testimony being false. Right against self-
incrimination is also a check upon the working of the police during
investigation against torture and other third degree methods adopted against
the accused. If this right is not available the investigators would be more

42 AIR 1978 SC1025

43 Section 161(1) of the Criminal Procedure Code, 1973 says "Any police officer
making an investigation under this Chapter, or any police officer not below the
such rank as the State Government, may by general or special order, prescribe in
this behalf acting on the requisition of such officer, may examine orally any
person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case
put to him by such officer other than questions the answer to which would have
tendency to expose him to a criminal charge or to a penalty or forfeiture.
44 AIR1954 SC 300
45 Supra note 39 p. 3 7 3
inclined to extract information through such compulsion as a matter of
course. 46 These concerns have been recognized in India as well as in foreign
countries. Supreme Court of India in case of State of Bombay vs. Kathi Kalu
Oghad47 has said that "if it is permissible in law to obtain evidence from the
accused person by compulsion why tread the hard path of laborious
investigation and prolonged examination of other men, materials and
documents? An abolition of this privilege would be an incentive for those in
charge of enforcement of law "to sit comfortably in shade rubbing red peeper
into a poor devils' eyes rather than to go about the sun hunting up evidence."
And also if this right is abolished the accused persons may be induced to
furnish false evidence against themselves under duress. Similarly, in
Nandany Satpathy's case48 the Court opined that the refusal of Article 20(3)
of the Constitution of India is to convert adversarial system in inquisitorial
system. Not only this but in the USA and Canada it has been provided that
no adverse opinion can be drawn against accused if he remains silent and
fails to testify.

VII. Conclusion
Right to silence is not really a right but a privilege which provides
immunity to the accused. So the accused should not be forced to testify
during trial. Although English law permits adverse inference being drawn
when the accused remain silent both at the stage of investigation and at the
stage of trial but this inference is subject to two conditions: (i) there is prima
facie case against the accused and (ii) accused has access to lawyer. As far as
the Indian context is concerned it is difficult to comply the English
conditions. It is also difficult to expect a prima facie case being established
before investigation is complete. However, such problem will not arise if the
accused is questioned during the trial after charge is framed.49 The latter is
done only after investigation is complete and statement of witness and other
relevant materials are collected and the Court is satisfied that there is prima
facie a case. So far as access to lawyer is concerned it is also not difficult
because the accused is entitled to take the assistance of a lawyer of his
choice. But the Court should ask the question tactfully to discover the truth
without affecting such right of accused. The provision does not protect the
right of accused to remain silent but only protects improper method of
interrogation. But it is very difficult to create a fair state-individual balance
by allowing accused to remain silent in criminal cases. The basic objective
of criminal justice system is to ensure public safety and the right to remain

46 ibid
47 AIR 1961 SC 1808 Para 30
48 AIR 1978 SC 1025
49 Committee on Reform of Criminal Justice System Report, Vol. I, March, 2003,
p. 5 3
silent protects guilty at the cost of such utilitarian objective. Right against
self-incrimination does not deter improper practice during investigation
instead it encourages the investigator to make false representation before the
Court because they are under pressure to deliver result. Moreover, we must
recognize the constitutional value in all branches of law. There should be a
positive obligation imposed by law on the witnesses to assist in the
investigation and if so required by the Court to give evidence. If accused is
silent then Court should be allowed to draw proper inference by amending
the Criminal Procedure Code of 1973. Also, in heinous crime and terrorist
related activities the accused should not have any right to remain silent and
refuse to answer the question. However, no change regarding adverse
inference should be drawn otherwise it will be ultravires.