The Hindu : 'Right to silence clause should not be amended'

Online edition of India's National Newspaper
Sunday, Dec 22, 2002

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'Right to silence clause should not be amended'

By J. Venkatesan

NEW DELHI DEC. 21. The Law Commission has opposed changes in the citizen's fundamental "right to silence" saying that such changes would go against Constitutional protection.

In its 180th report on "Article 20 (3) of the Constitution", the commission said if the right were to be curtailed, it would be ultra vires Article 20 (3) and Article 31. It, therefore, recommended that the law relating to "right to silence" should not be changed.

The "right to silence" meant that a person could not be compelled to give evidence against himself and "when he remains silent, no adverse inference can be drawn against him". However, in Australia and the United Kingdom the "right to silence" of the accused had been diluted at the stage of interrogation and trial proceedings.

The commission made an analytical study of the legal provisions and decided cases in respect of "right to silence" in the United States, the United Kingdom, Australia, Canada and China.

In the U.K., changes were brought in the law relating to the right in 1994, permitting that a proper inference might be drawn from the silence of the suspect during interrogation of the accused at the trial. The court could comment on the silence in its summing up to the jury, which could take it into consideration.

However, in 1999, provisions requiring suspects or accused to be informed of his right to call an attorney were introduced. But English courts are, at present, facing several practical problems in this regard.

In the U.S., though there is a provision against self-incrimination, the courts have laid down that silence can be taken into consideration while deciding the quantum of punishment. A similar legal situation prevails in Canada. After considering all these provisions, the commission has decided against making any amendments to the "right to silence" clause and has conveyed its decision to the Government.

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