Police Interrogation and the Right to Remain Silent

Editable vector silhouettes of a handcuffed man being interrogated by two detectives

On March 1, 2023, while deciding criminal appeals relating to some
Chhattisgarh bureaucrats, the Supreme Court made the following

“We quite appreciate that there could be cases of innocent public
servants being entangled in investigations arising out of motivated
complaints and the consequent mental agony, emotional pain and social
stigma that they would have to encounter in the process, but this
small price has to be paid if there is to be a society governed by the
rule of law.”

The context in which these observations were made was allegations of
corruption and illegal amassing of wealth by certain civil servants
for which there was sufficient prima facie evidence supporting the
allegations. The presence of the above quoted words at the fag end of
an otherwise laudable and lucid judgment, however, starts bells
ringing about the rights of innocent persons falsely accused of any
offence for extraneous considerations. Such cases are not unknown in
India, as the present writer had experienced during his long career as
a civil servant at considerable cost to himself and his family.
Whether that was a small price or unduly large and avoidable is a
subjective judgment and the pain of the wearer of the pinching shoe
may be considerably different from that of a detached observer
evaluating that pain.

In India, the word “investigation” is inseparably linked to
allegations of torture.  In this column on November 9, 2020 we had
written under the heading “Law of Evidence and Democracy” and the
observations of the apex court have prompted us to revisit the issue.
We had mentioned that a democratic state has the unenviable task of
reconciling the dual obligations of protecting the rights of
individuals and of protecting the society against individuals inimical
towards social order. We recognised the difficulties of the
investigator because a “successful” criminal will do his utmost to
hide his tracks and hence the temptation on the part of the
investigator to resort to shortcuts.  Faced with a brick wall, he
either “persuades” the accused during interrogation to disclose
evidence against himself, or fabricates evidence. Readers may neither
take our word for this assertion nor trust the apocryphal stories
about the existence of interrogation centres and the screams emanating
from these dungeons at night. Yet, they may not as easily ignore the
assertion of the Law Commission of India in their May, 2002 Report on
“Article 20 (3) of the Constitution of India and the right to Silence”
of a person accused.

The Commission had listed three facets of the right to silence viz.
the burden on the prosecution to prove the guilt of the accused, the
presumption that an accused is innocent till he is proved guilty and
the right of the accused against self-incrimination. It is the last
that gives an accused the right to remain silent during investigation
and trial so that the state does not use coercion or fraud of any kind
to make him incriminate himself and thus facilitate the discharge of
the burden of proof cast on the state. The Law Commission Report says
that “One may ask the question as to in how many cases Police Officers
in India are strictly following the rules laid down by the Supreme
Court in D K Basu’s case? In a pending public interest litigation in
the Supreme Court, it was reported by the amicus very recently that,
according to the information received from various States, it was
clear that D K Basu guidelines are not being followed in most of the
States. Can anybody assure that in India, the Police invariably would
inform a person in detention that he has a right to call a lawyer at
the time of his interrogation? Even if we introduce a rule to that
effect and even if the Police record in their diary that such an
opportunity was given, one cannot say how much credence can be given
to such a noting in India.” M. Jagannadha Rao, former Judge of the
Supreme Court and other members of the Commission had signed the

In our 2020 article, we had mentioned that in China, 99 per cent of
criminal cases end in confession. While in India, the arrested person
has to be produced before a court within 24 hours of arrest, in China,
the period of non-judicial detention can be up to six months. Thus it
is that the arrest becomes disappearance, till some months later the
person appears before cameras and confesses to his crime. Yet,
unbelievable though it may seem, the right to remain silent was
brought on the statute book in China in 2000 when it was prescribed
that convictions shall not be based on confession but on impersonal
and reliable proof. This just goes to show that mere existence of
safeguards in the criminal code or even in the constitution will not
confer rights on the individual unless the society and the three
pillars of the state jealously guard such rights. In India too, there
are express provisions in the Constitution granting a right to the
accused to remain silent and against self-incrimination. Article 20(3)
of the Constitution says, “No person accused of any offence shall be
compelled to be a witness against himself.” Section 161(2) of the
Criminal Procedure Code says that during interrogation a person may
not answer “questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture.” In the
face of these safeguards, the judgment in D K Basu case mentioned by
the Law Commission laments, “Experience shows that the worst
violations of human rights take place during the course of
investigation, when the police with a view to secure evidence or
confession often resorts to third degree methods including torture…”
Yet, one of the grounds for seeking remand remains that the accused is
not cooperating with the investigation or is giving evasive answers.

This brings us back to the “small price” mentioned by the Supreme
Court, paid by an innocent person, in terms of “mental agony,
emotional pain and social stigma” and not infrequently in terms of
physical torture, when he is investigated for a motivated complaint.
What the apex court writes creates a norm, legal, social or moral. The
moral norm created by these words of the court will marginalise the
sufferings of the innocent. The condition of the law of torts in our
nation is pathetic and not many sufferers have the resources or the
will left in them to seek recompense. It would have helped if the
court had added a few words to these observations to the effect that
in such cases, the person initiating and conducting investigation into
a false and motivated complaint as well as the state shall be liable
to adequately compensate the innocent for all the price, small or
large, paid by the innocent and his family. It should have added that
the right to silence and the right to legal counsel during
interrogation must be respected on the pain of the wrath of the Apex
Court itself. It will not be too late if the Court still wants to
revisit the issue and make amends.

The writer RN Prasher is a retired IAS officer of Haryana cadre | Personal Opinions

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