“Right to Silence”: A Commentary on Misinterpretation and Violation by the Indian Judiciary

Abstract

The Indian Constitution, being the lengthiest constitution in the world, seeks to accord the “right to silence” the status of a fundamental right, a particularly high threshold from which little to no derogation is permissible. This constitutional guarantee has also been given a statutory backing, wherein the silence of an accused cannot be used to draw an adverse inference against him. As a country which hails itself as a champion of personal liberty, it is disheartening to see that the reality of the situation is disappointing. The draconian pre-Constitution jurisprudence is still followed by most judgements, and often the silence of an accused is used as a “missing link” on the part of the prosecution to establish an accused’s guilt. This occurs either due to the correct provisions not being brought before the notice of the courts, or due to the courts adjudicating in derogation of statutory provisions and settled case laws. In this paper, the authors seek to establish the correct position of the law by taking into account its evolution in Indian and other jurisdictions, and then establish how India continues to fail to give effect to this right, by empirically analysing several judgements of the Supreme Court of India.