The Right to Silence

In one line

An accused in India may remain silent from the moment of police interrogation, and silence costs him nothing, because the burden of proof never shifts and because the law of evidence shuts out almost everything he might say to the police.

Where the right comes from

Article 20(3) gives it constitutional form: no person accused of any offence shall be compelled to be a witness against himself. Its content is set out in the chapter on self incrimination, and two holdings there carry this chapter.

Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424, where a former Chief Minister was called to a Vigilance police station, handed a long written list of questions, refused to answer, and was prosecuted for refusing to answer a public servant. The Court quashed that prosecution, holding that the prohibitive sweep of article 20(3) goes back to the stage of police interrogation and does not begin only in court; that the ban on self accusation and the right to silence goes beyond the case under investigation and protects the accused in respect of other offences pending or imminent; and that compelled testimony includes evidence procured not only by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like.

Selvi v. State of Karnataka, (2010) 7 SCC 263, adds that article 20(3) protects an individual's choice between speaking and remaining silent, whether the resulting testimony would be inculpatory or exculpatory, and that the protection extends to suspects and witnesses examined during an investigation and not only to a person formally accused.

What silence costs

Nothing, and that is the answer to the question. It is worth setting out why, because the reasons are separate.

The burden of proof never shifts to the accused on the offence itself. The prosecution must prove its case beyond reasonable doubt. The exception is the General Exceptions, where the evidence law places the burden of proving the circumstances on the accused, but even there the standard is a preponderance of probabilities, as the chapter on raising and proving the plea sets out.

A confession to a police officer cannot be proved at all. Section 23(1) of the evidence law: no confession made to a police officer shall be proved as against a person accused of any offence. Since a confession made in the police station is inadmissible, an accused loses nothing by not making one.

Nor can a confession made in police custody. Section 23(2): no confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved against him.