Right to Call a Lawyer

In any criminal investigation, interrogation of suspects and the accused play an important role. Gathering evidence against the accused is the cornerstone of any criminal investigation. The responsibility of prosecuting an accused lies on the government, as a result, there is always a possibility that the state having enormous muscle power might infringe the rights of the accused by proceeding with the trial in an unjust manner. In order to protect the accused from the possible threat of being convicted unjustly, certain rights have been devised. These rights have also been recognized by the framers of the Indian Constitution and in turn, inserted the rights in Article 20 under the heading “protection in respect of conviction for offences”.

The rights under Article 20 could be availed by the citizens as well as non-citizens. The term “person” for the purposes of Article 20 also includes a corporation which is accused, prosecuted, convicted or punished for an offense. The right is so critical to the justice delivery mechanism that it cannot be suspended even during an emergency. It also constitutes a limitation on the legislative power of the parliament or the state legislatures under Article 246, read with the three Legislative Lists contained in the Seventh Schedule to the constitution.

In this paper, the third clause of Article 20 shall be discussed in detail, which appears with the wording- “No person accused of any offence shall be compelled to be a witness against himself”. This clause is based on the maxim ‘Nemo tenetur prodere accussare seipsum”, which means that “no man is bound to accuse himself”. It is known as the Miranda Principle. This provision embodies the principle of protection against compulsion of self-incrimination, which happens to track its origin to being one of the most important principles in the British system of jurisprudence. This principle was also enacted into the United States Constitution by the 5th amendment. The constitution of India has also accepted the principle and raised its status to being a constitutional prohibition.

The characteristic features of Common Law criminal jurisprudence are that an accused must be presumed to be innocent till the contrary is proved and that the accused shouldn’t be made to make any admission or statement against him. It is the duty of the prosecution to establish the guilt of the accused.

The privilege under Article 20 (3) of the Indian Constitution is given to a person who has been accused of committing a crime. An accused for the purposes of the Article is a person against whom a formal accusation relating to an offence has been made which in normal course will result in prosecution. However, in order to avail the benefit under Article 20(3), it is not necessary that the actual trial or inquiry should commence before a court or a tribunal. If against a person, a First Information Report (FIR) has been recorded by the police and investigation has been ordered by a magistrate, then that person can seek protection under Article 20(3). A person who has not been named in the FIR can still be provided protection under the provision if oral or circumstantial evidence point to the guilt of the said person and he has been taken into custody on that basis.

In the United States of America, the privilege against self-incrimination is given to accused as well as the witnesses. Under English law too protection has been extended to the witnesses, where a witness is protected from answering the questions which may lead to criminal prosecution or any other penalty or forfeiture. In India, a witness is not protected under the provision as it would make things difficult for the police and many criminals would go scot-free.

Nandini Satpathy, the former Chief Minister of Orissa, was directed to appear at the Vigilance Police Station, Cuttack, in connection with a vigilance case against her. Nandini Satpathy was given a long list of questions in writing about her alleged acquisition of assets disproportionate to her known sources of income. She exercised her right under Article 20(3) of the Constitution and refused to answer the questions. Article 20(3) guarantees that no person accused of any offence shall be compelled to be a witness against oneself.

She was booked under Section 179 of the Indian Penal Code (refusing to answer a public servant authorized to question). When the magistrate issued her summons of appearance she challenged it before the High Court, saying her right under Article 20(3) was infringed.

Her appeal was allowed magistrate‘s proceedings against her were quashed. Besides, it was likely that some of the questions posed to her were self-incriminatory. It was in this case that the Supreme Court laid down that the prohibitive sweep of Article 20(3) went back to the stage of police investigation. Justice Krishna Iyer held that an accused person was entitled to keep his or her mouth shut if the answer had a reasonable prospect of exposing him or her to guilt in some other accusation, actual or imminent, even though the investigation under way was not with reference to that. However, Justice Iyer said an accused was bound to answer where there was no clear tendency to criminate. The “right against self-incrimination” is now viewed as an essential safeguard in criminal procedure. Its underlying rationale corresponds broadly with the objectives of ensuring the reliability of statements made by an accused and ensuring that such statements are made voluntarily.

Right to call a Lawyer

The Court also laid down some guidelines for the due observance of Article 20 (3) by police authorities one of which was that they (the police) must inform the accused that he has a right to call a lawyer before answering to any of their questions The Nandini Sathpathy judgment also held that under Article 20(3), a suspect is also protected. Hence this case has been an important event in the process of declaring Article 20(3) vital to the democracy.

The guarantee in Article 20(3) is against the compulsion ‘to be a witness’ to be a witness means making of oral or written statement in or out of court by a person accused of an offence. In other words, it means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing made or given in a court or otherwise. Such statements are not confined to confessions but also cover incriminatory statements, i.e. to the statements which have a reasonable tendency strongly to point out the guilt of the accused. “To be a witness” is not equivalent to “furnishing evidence” in its widest significance, that is to say, as including not merely making of oral or written statement but also the production of documents or giving materials which may be relevant at trial to determine the guilt or innocence of the accused.

The giving of thumb impression or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are nt included in the expression “to be a witness” in Article 20(3). So taking voice samples of an accused by the police during the investigation is not hit by this Article. But the results obtained through involuntary administration of either narco-analysis technique, polygraph examination or Brain Electrical Activation Profile (BEAP) Test come within the scope of “Testimonial Compulsion” and are, therefore, protected by Article 20(3).