Analysing Section 132 of the Indian Evidence Act, 1872 in accordance with

Article 20(3) of the Indian Constitution, 1949 through the lens of Self-
incrimination

Abstract

“The right of silence, like all other good things, may be loved unwisely, may be pursued too
keenly, may cost too much”- Adopted from the case of Pearse v. Pearse1

The paper is based on the right against self-incrimination and examination of its scope in
light of Section 132 of the Indian Evidence Act while underscoring the essence of Article
20(3) of the Indian Constitution. It should be the need of the moment that each individual
present in society should be mindful of his rights. Article 20(3) also protects and offers
immunity through the right against self-incrimination. This right has gained a lot of
relevance in the recent past when the application of the Narco Analysis test and Brain
mapping test have been done to prove the guilt of an individual. Still, the underlying
legislations lack adequate substance to justify such applications. The paper will provide a
comparative analysis between the two legislations- Section 132 and Article 20(3) and would
also incorporate the other legislations prevalent in different nations that focus on
safeguarding the arrested individual. It is also significant to focus on the judicial
interpretation of the provisions. Finally, it will critically analyse both the legislations and
will put forth certain recommendations with an aim to fill the existing gap in them.

1
Pearse v. Pearse, 63 (1846) Eng Rep 950, 957.
 Understanding the term “Self-incrimination”

The basic criminal law principle that an individual is assumed innocent unless proven guilty
by the prosecution is focussed on another crucial element of the Criminal Justice System- the
right to not declare against himself, as well distinguished as the right against self-
incrimination, that is the basic kind of right for citizens as per Article 20(3) of the Indian
Constitution, 1949.2 The constitutional drafters offered the right a “diminishing” position,
that signifies it will prevail even during urgent times, due to the Indian constitutional
amendment enacted in 1978. 3

The right has its source in the legal maxim “Nemo teneturseipsumaccusare,” which has been
incorporated in general doctrines of American and English jurisprudence, both inferring
towards the right of an individual to be safeguarded from the mandate of incriminating
himself in the process of a criminal trial.4 Accordingly, after introduction of this doctrine at
the Indian Constitutional level, it has been examined with three important components in the
judgment of M.P. Sharma v. Satish Chandra5 by the apex court. Here, it involved: i) “Right
pertaining to a person who is accused of an offence”, ii) Protection against “compulsion to be
a witness”, iii) “Protection against such compulsion resulting in his giving evidence against
himself.” Article 20(3) was identified as an important safeguard in criminal processes in
Santosh v. State of Maharashtra.6 It mainly offers to safeguard against “extorted confessions”
7
and “involuntary confessions.”8 In India, this right is constitutionally restricted to the
accused, but the implied exercise of this concept has been used to partly protect the right
against self-incrimination of witnesses in other important legal rights by nullifying the
impacts of self-incrimination.

Moreover, witnesses in India have been left unaffected by the Constitution and persist to be
regulated by Section 1329 and other clauses of the Evidence Act. Section 132 states that a

2
INDIA CONST. art. 20, cl. 3.
3
INDIA CONST. art. 20, cl. 3, amended by The Constitution (Forty- Fourth Amendment) Act, 1978.
4
Dr. J.N. Pandey, Constitutional Law of India 247-250 (Central Law Agency, 53rd ed. 2016).
5
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 (India).
6
Santosh v. State of Maharashtra, (2017) 9 SCC 714 (India).
7
W Burr, Gard Jones & A Spencer, Law of evidence: Civil and Criminal 1603-1607 (Bancroft- Whitney Company,
5th ed. 1958.
8
Selvi v. State of Karnataka, (2010) 7 SCC 263 (India).
9
The Indian Evidence Act, 1872, § 132, No. 1, Acts of Parliament, 1872 (India).
witness shall not be exempted from responding to any question as to any issue significant to
the issue in focus in any case or in any criminal or civil process, on the basis that the remedy
to such question will criminate, or may lead to explicitly or implicitly to criminate, such
witness, or that it would reveal, or lead to explicitly or implicitly to reveal, such witness to a
fine or confiscation of any type. The phrase “shall not be excused” means that the Court may
caution witness that denying to respond to questions could result in a charge of contempt of
court or other disciplinary action.

It can be observed that Section 132 considered with illustrations (g) (h) to Section 114 of the
Evidence Act,10 puts an individual at risk of being self-incriminated in an effort to protect
himself at the witness box. The proviso to Section 132 is aimed at the elimination of this
threat. It is to be considered that these assumptions in law are acceptable but not necessary.
They do not decide the guilt of an individual. Accused individuals having no adequate
justification to provide for the situations in which they were discovered may choose to
comment nothing. An unfavourable implication cannot be produced out of it. In criminal
matters, it is always for the prosecution to determine the guilt of the accused beyond any
rational uncertainty.11

10
The Indian Evidence Act, 1872, § 114, No. 1, Acts of Parliament, 1872 (India).
11
Woolmington v. D.P.P., 1935 A.C. 462.
 Judicial Precedents in light of Section 132

The reasoning behind Section 132 was given in Laxmipat Choraria v. State of Maharashtra, 12
whereon Supreme Court decided that withdrawing the prerogative of denying to respond was
required for India to prevent the urge of speaking a lie. Still, the shield provided as per
Section 132 was essential. Article 20 (3) reinforces this shield even more by stating that no
individual accused of a crime might be forced to give evidence against himself. One can
understand from the given matter that Section 132 is in conformity with the constitutional
concept of the right against self-incrimination as per Article 20(3).

The concern has emerged because the fundamental part of Section 132 that requires each
witness to respond to questions that incriminate him does not apply the term “compelled”
while the safeguard in the provisions against conviction, prosecution, etc. is provided only to
those witnesses that are “compelled” to respond to incriminating questions.

In the case of Queen Empress v. Gopal Das,13 the majority held the narrow opinion that the
safety in the provisions is applicable only to those witnesses who objected and later
responded (i.e., forced) while Muthuswami Aiyer J. provided a broader interpretation to the
term “compelled” as involving any witness who observed he has to follow the directions in
the main provision of Section 132, and who didn’t raise an objection to the question.

Furthermore, the 69th Report of 1977, drafted by the Fifth Law Commission examined in
paragraph 70.53 that, in the matter of witness “compulsion,’’ it must be considered to have
emerged by force of law (i.e., the legal instructions in the middle portion of Section 132,
where a Court holds no power to exempt a witness). This is a rational construction provided
in the provision. Also, if the major portion of Section 132 is actually necessary and the court
possesses no power to exempt a witness from responding to an incriminating question, an
objection raised by the witness is completely worthless and if this is so, the difference
between a witness who raised objection and another one who had not raised objection but felt
forced by the major portion of Section 132 loses relevance. For this reason, as per the 69th
Report, Section 132 must be considered a legal necessity.

12
Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938 (India).
13
Queen Empress v. Gopal Das, (1878) ILR 3 Mad 271.
Furthermore, in R. Dineshkumar v. State,14 the Madras HC, taking note of the Supreme Court
decision of the KathiKaluOghad case,15 did not permit the prosecution witness to demand the
benefit of self-incrimination as per Article 20 (3) of the Indian Constitution on the basis of
him not being accused. Also, the decision of the court recommends that “compulsion” as per
Section 132 is compulsion by enactment, the question of the witness responding willingly
does not continue, and the witness would in any matter be authorized to the benefit provided
by the provisions of this Section. The Allahabad HC in the judgment of Emperor v. Chatur
Singh stated that objection is irrelevant while determining if the incriminating questions
responded to by the witness are enclosed in the safeguard clause provided by Section 132
even if a significant statement given by a witness on his own risk may be located on a distinct
footing. 16

14
R. Dineshkumar alias Deena v. State Represented by Inspector of Police and Others, (2015) 7 SCC 497.
15
Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 (India).
16
Emperor v. Chatur Singh, AIR 1921 All 362 (India).
 Comparative Analysis of Section 132 and Article 20(3)

The aim and intent of Section 132, Evidence Act, are quite distinct from Article 20(3) of the
Constitution. Section 132 is not a benefit provided to a witness, but a restraint upon him. Any
witness, whether in civil or criminal processes, should provide proof and answers in a proper
way appropriate to keep up the decorum of the court, court officials, lawyers, and
stakeholders. He shall not respond to a criminate question. Furthermore, he cannot deny
responding to a question that is significant to a case under investigation where he is
summoned as a witness even on the appeal of self-incrimination. But here also it doesn’t
imply that he should respond to all criminatory concerns, but he should respond to the issues
significant to the matter-in-issue. This means that a witness is benefitted and might not
respond to insignificant questions.

Article 20(3) of the Constitution states that no individual accused of any crime shall be forced
to be a witness against himself. The objective of this Article is to safeguard the accused from
being forced to provide proof against him. Hence, it is a basic right of an accused that he shall
not be forced to be a witness and shall not be forced to provide proof against himself. The
terms of this Article themselves reflect that the safeguard provided is aimed at criminal
matters, and that too specifically to an accused itself. This Article does not entail any witness.
This Article also does not include civil processes.
 Comparative Analysis with respect to other nations

If we consider the application of the right against self-incrimination from the viewpoint of a
witness in countries other than India, like the United Kingdom and the United States, we can
observe that the explanations are quite wide. As the Fifth Amendment to the United States
Constitution, sanctioned in 1793s,17 assures the right against self-incrimination, the extent of
that safeguard has been considerably elucidated by the courts. Its extent expands not only to
the accused but also to stakeholders and witnesses in criminal and civil proceedings,
considering both noted and oral evidence. In the judgment of the United States v. Hubbell, 18
the apex court of the United States stated that the right is not applicable only to the accused,
but also to anyone who offers evidence. But there are certain exceptions, like the preferred
abandonment of such safeguard, as in the judgment of Crooker v. California, 19 where the
court observed that the defendant knowingly gave away his Fifth Amendment rights after
applying the due process mechanism.

Contrarily, the UK acquires the model of American jurisprudence on the subject, where the
right against self-incrimination was expanded not just to the accused but also to witnesses,
although exceptions were formed in some situations, as stated in Lam & Chi-Ming v. the
Queen.20 As a consequence, such safeguards of the rights do not exist in a perfect form, as it
is open to exceptions under certain circumstances, as determined in Brown v. Stott, 21 as for
important and fundamental questions related to the inquiry. In the judgment of Customs and
Excise v. Harz22 related to exceptions, the UK Court also determined that the aim of the
statute or exclusive legislation might overrule the right to self-incrimination safeguard.

Through this, we can conclude that the right in both nations has a greater extent than in India,
but it is also restricted with certain exemptions for holding a balance between the doctrine of
self-incrimination and the procedure of executing criminal justice processes to deliver the
motives of justice.

17
Stephan A. Saltzburg, American Criminal Procedure: Cases and Commentaries 406 (West Academic Press, 3rd
ed. 1988).
18
United States v. Hubbell, 530 U.S. 27, 49 (2000).
19
Crooker v. California, 357 U.S. 433 (1958).
20
Lam & Chi-Ming v. The Queen, (1991) 2 AC 212 (UK).
21
Brown v. Stott, (2003) 1 AC 681 (UK).
22
Customs and Excise v. Harz, (1967) 1 AC 760 (UK).
 Critical Analysis

In India, the doctrine of self-incrimination is mainly employed through Article 20(3) of the
Constitution of India and it is an important doctrine of the criminal justice system that
attempts to safeguard the rights of the accused in criminal matters accompanied with other
fundamental requisites, like the right to silence. But it has a restricted extent outpacing the
characteristics of witnesses and its application in civil processes.

“Testimonial compulsion” is entailed in the legislation to ensure a smooth fact-finding

process of the court. Section 132, apparently, may not appear to be in conformity with the
fundamental rights, but it does provide an adequate benefit to the witnesses, through its
provisions, by protecting them from any step undertaken against him in any criminal process.
Also, the benefit of self-incrimination, having its extent restricted to the individual accused of
a crime, cannot be declared to be explicitly implemented in Section 132 which only considers
witnesses. Simultaneously, the implication of the statutory clause being in conformity with
FRs mentioned under Article 20 (3) can be determined from the legislature’s intention, as
asserted by the judiciary also. Still, there exists uncertainty in protection offered by Section
132 itself in relation to its employability in some circumstances like objection or willingness
by the witness at the time of providing the evidence out of necessity.

Moreover, one can observe a clear dispute between extreme rights accessible to the accused
as per Article 20(3) and under Section 132 of the Evidence Act. Once the constitution permits
an accused right against self-incrimination, law of evidence states that a witness cannot deny
to offer answers only by mentioning the cause of his incrimination. A witness is not immune
from his responsibility to respond to the questions asked from him. When an accused arrives
as witness and offers evidence that can have the consequence of incriminating the other party,
the accused provides it out of his own willingness. It has the same effect as that of the
exceptions under Article 20(3).

Hence there is a need to develop a balance between these two provisions, to ensure that the
fundamental right under Article 20(3) is not infringed as well as the effectiveness of the
criminal justice system is maintained. It is the need of the hour to coordinate “right to
silence” with “right to obtain evidences.” No individual should be compelled to give
testimony against himself. Nevertheless, if scientific capacity such as Narco tests and DNA
tests are employed, it is not infringing the clause as there is a distinction between compelling
to speak a specific thing and receiving information for collecting evidence. In recent times,
these techniques are permitted and it should be encouraged in an ethical manner as they hold
significance to collect evidence to offer legitimacy and fairness in the processes.
 Conclusion

Considering the gap and uncertainty in the interpretation of Section 132 with respect to
protection provided to the witness, certain measures should be undertaken to offer a
comprehensive legislation for the right against self-incrimination-

The extent of Article 20 (3) is very restricted as its protection is witnessed through the limited
viewpoint that is unable to incorporate the witness as there is the requirement to preserve the
stable approach between the rights of the witness and the measures to receive evidence from
an individual. Moreover, the premise of Article 20 (3) is limited to criminal matters;
nonetheless it is now mandatory to examine its utility in civil matters also. As the suggested
changes to the Article does not alter the fundamental framework of the Article, its range
should be broadened to incorporate mentioned facets as executed properly by other common
law nations.

If the constitutional amendment is not feasible at present, the balance can be renewed by
reinforcing other legislations. Section 132 of the Evidence Act is not very accurate as regards
its range of appropriateness with respect to willingness and criticism to respond incriminating
questions and there exists an inconsistency in the judicial pronouncements. The legislature
should provide clarity regarding the premise of Section 132.

These modifications are required as an adequate mechanism to solve the concern of invasion
on witness rights and construing Article 20 (3) in a manner that does not endanger the
doctrines and procedures that forms the essentials of the criminal justice system.