Report No. 69

III. Two Doctrines

70.9. Various doctrines.-

In order to appreciate the significance of this section, it is desirable to refer to a few juristic doctrines. There are several doctrines relevant to the question under consideration:

(a) the right of the accused to be silent;

(b) the privilege of the witness against incrimination of oneself;

(c) the privilege against incrimination of the spouse;

(d) immunity as a substitute for the privilege.

Two of these seem to be important. According to the rule relating to the right of the accused not to be questioned, neither the judge nor the prosecution is entitled1 at any state to question the accused unless he chooses to give evidence. "At the common law", says Blackstone, "nemo tenetur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men"2.

Then, there was another rule, namely, the privilege of any witness to refuse to answer an incriminating question; this is not in every respect identical with the rule relating to the right not to be questioned, which applies only to persons accused of crime, and prevents the question from being asked at all. Although the two doctrines very often overlap, and although the first is usually discussed along with the second, there is at least one situation where they do not overlap, namely, where a witness (who is not the accused) is asked incriminating questions. The privilege to be considered in such a case is merely that against self-incrimination, and not the right not to be questioned. Of course, Indian statute law does not incorporate the privilege in this particular form (section 132, proviso)3 but that aspect is not material at present, since what we are considering is the doctrinal background, and not the actual content of the law.

1. Cf. Miranda v. Arizona, (1966) 384 US 436.

2. Williams The Proof of Guilt, Chapter 3.

3. Indian law will be discussed later in detail.

70.10. Rationale of privilege against self-incrimination.-

Since the eighteenth century, English and American courts have recognised that an accusation should not come from a person's own mouth, and that nobody called as a witness in any kind of proceeding should be forced to reveal incriminating matter. It does not matter what the nature of the proceeding, is it can be a legislative committee hearing, an administrative agency proceeding, a civil case in any of its phases or a criminal case in any of its stages. However, the privilege is not a general one against taking an oath and testifying. Instead, it extends only to a right to refuse each individual answer as it is sought by the questioning authority.

70.11. Two distinct ideas.-

The proposition that the accused could not be compelled to testify in a criminal case, and the idea that no one could be obliged to jeopardise his life or liberty in answering questions on oath, are two ideas which, when necessity arises, could be kept distinct. The privilege not to testify in a criminal case when one is accused of the charge, originated in the unpopularity of the procedure adopted in the Star chamber, under which those who were charged with an offence were interrogated on oath.1 The idea that no one could be obliged to jeopardise his life and liberty by incriminating questions, came to be applied to all witnesses in all proceedings in the course of the seventeenth century2. It is possible that3 the right of the accused not to be questioned and the privilege of the witness, were recognised in the same century. But the two are not identical.

1. Cross on Evidence, (1974), pp. 146 and 243.

2. Cross on Evidence, (1974), pp. 146 and 243.

3. Holdsworth History of English Law, Vol. 9, p. 198 (middle of 17th Century).

70.12. Right to silence.-

We have referred above to the right to silence. The position has been thus stated1 with reference to England-

"Police officers are entitled to question any person, whether suspected or not, from whom they think that useful information may be obtained, whether or not that person has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted,2 "but if there are reasonable grounds for suspecting that a person has committed an offence, a caution must be given before any further questions are put."

We may refer to one case which illustrates its practical impact, though the actual point related to adverse inference from silence. In Hall v. R., (1971) 1 All ER 322 (PC).3the accused was convicted of the unlawful possession of ganja. A policeman told the accused after the search of his home (where ganja was discovered) that the co-accused had said that the ganja belonged to the accused Hall. He remained silent. He was convicted in Jamaica. He appealed to the Privy Council against his conviction.

1. Harold Williams O.C., LL.D., Foreword to Shoolbred, Criminal Justice in England & Wales (Pergamon Pres) (1960), p. viii.

2. Emphasis supplied.

3. For Indian statutory provisions, see sections 161(2), 164(2), 175(1), 313(3), 316, Cr. P.C. 1973.

Lord Diplock observed:

"It is a clear and widely known principle of the common law in Jamaica, as in England, that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. A fortiori he is under no obligation to comment when he is informed that someone else has accused him of an offence. It may be that in very exceptional circumstances an inference may be drawn from a failure to give an explanation or a disclaimer, but in their Lordship's view silence alone or being informed by a police officer that someone else has made an accusation against him cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation. This is well-established by many authorities such as R. v. Whitehead, (1929) 1 KB 99: 1928 All ER 507 CCA."

70.13. We are referring to this case as indirectly illustrating the right to silence. This right came to be recognised in the 17th century1. Right down to the middle of the seventeenth century, the examination of the accused is the central feature of the criminal procedure of the common law2. Nor do we read anywhere that a witness could refuse to answer on the ground that his answer might incriminate him.3 It was in the Commonwealth period that this privilege to refuse to answer incriminating questions is accorded to accused persons4. Its existence was well established after Restoration5; and it was then extended to ordinary witnesses.6

1. Holdsworth History of English Law, Vol. 9, pp. 199 and 277.

2. For later cases, see R. v. Sparrow, (1973) 2 All ER 129.

3. The first instance of this seems to have been R. v. Reading, (1679) 7 ST 296.

4. (a) King Charles' Trial, (1649) 4 ST 1101; (b) Lilburn's Trial, (1649) 4 ST 1292-1293 (1341).

5. R. v. Scroop, (1660) 5 ST 1039.

6. (a) R. v. Reading, (1679) 7 ST 296; (b) R. v. Rosewell, (1694) 10 ST 169.

70.14. History of self-incrimination.-

It is possible that the decision of the common law to allow a party the privilege of refusing to answer questions at the suit of his opponent, assisted indirectly the establishment of the privilege of parties and witnesses to refuse to answer incriminating questions-a privilege which made its appearance in the middle of the seventeenth century1. At any rate, the introduction of this privilege was helped forward by the hostility of the common law courts to the opposite methods pursued by the ecclesiastical courts in the exercise of their criminal jurisdiction.2

1. Holdsworth History of English Law, Vol. 9, p. 198.

2. Holdsworth History of English Law, Vol. 9, p. 196.

70.15. Privilege of accused as also of witnesses.-

Although, in practice, greater importance is attached to the privilege of the accused, it should not be forgotten that the privilege is not of the accused merely, but of the witnesses as well. The rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the Judge, have a tendency to expose the deponent to any criminal charge, penalty or forfeiture which the Judge regards as reasonably likely to incriminate him.1 Civil liability, however, is not an excuse2.

1. Blunt v. Parkleen Hotel Ltd., (1942) 2 All ER 187 (189).

2. Witnesses Act, 1806 (English).

70.16. Distinction illustrated in California Code of Evidence.-

The distinction made above.- namely, the distinction between the right not to be questioned and the right not to answer self-incriminating questions,-is brought out in clear terms in the California Evidence Code.1 Section 930 of that Code provides as follows:-

"Section 930. Privilege not to be called as a witness and not to testify-To the extent that such privilege exists under the Constitution of the United States or the State of California, a defendant in a criminal case has a privilege not to be called as a witness and not to testify."

Section 940 of the California Evidence Code is in these terms:

Section 940. Privilege against self-incrimination-To the extent that such privilege exists under, the Constitution of the United States or the State of California, a person has privilege to refuse to disclose any matter that may tend to incriminate him.

Section 404 reads-

"S. 404. Determination of whether evidence is self-incriminating-Whenever the proffered evidence is claimed to be privileged under section 940, the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence "is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege."

1. California Evidence Code, sections 930 and 940.

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