The Hindu : Panel wants `right to silence' modified

Online edition of India's National Newspaper
Friday, Jun 20, 2003

Southern States

Southern States - Karnataka

Panel wants `right to silence' modified

By Our Special Correspondent

HUBLI June 19. The right not to be compelled to testify against oneself, given to the accused, popularly known as the right to silence, is a universally recognised phenomenon which has been enshrined under Article 14 of the International Convention on Civil and Political Rights and as a Fundamental Right under Article 20 (3) of the Constitution.

The Committee on Reforms in the Criminal Justice System, constituted by the Union Government, has felt that there is a need to modify the right with a view to rendering better quality of criminal justice in the country.

The accused, in most of the cases, is the best source of information and a way should be found to tap this "critical source of information", while respecting the right of the accused, says the committee in its report to the Government. Justice V.S.Malimath, former Chief Justice of the Karnataka and Kerala high courts, headed the committee.

The conclusion drawn by the committee on the basis of a review of the procedures obtaining in other countries, hearing jurists, the high courts, and State governments may not please puritans who are averse to any changes in the present system.

But Mr. Justice Malimath says he wants a full-fledged debate on the subject since the time has come for making a break from the past in the quest of truth.

Without subjecting the accused to any duress, the committee says that the court should have the freedom to question the accused to elicit information and draw adverse inference against the accused in case the latter refuses to answer.

At present, the committee has noted that the participation of an accused in the trial is minimal.

This, the committee says, impedes the search for truth. It has, therefore, felt that the accused should be required to file a statement to the prosecution disclosing his stand.

The committee has recommended that Section 313 of the Criminal Procedure Code be substituted by Section 313-A, 313-B, and 313-C which will enable the court to question the accused after all the witnesses are examined, and explain personally any circumstances appearing in evidence against him; call the accused on his defence and put such questions necessary to discover the truth and draw appropriate adverse inference for the refusal to answer any questions; and that no oath be administered to the accused and that he is not liable to punishment for refusal to answer the questions.

The committee has said that suitable provisions be incorporated in the Cr.P.C., requiring the prosecution to prepare a statement of prosecution containing particulars of the offence and serve the same on the accused.

The accused, in turn, shall submit a "defence statement" within two weeks, and give specific replies to every material allegation made against him. If the accused pleads guilty, he need not file the defence statement. In the event of the reply being general and vague, the court may call upon him to rectify the same within two weeks, failing which it shall be deemed that the allegation is not denied.

If the accused claims the benefit of any general or special exception or the benefit of any exception or provisio, of claims alibi, he shall specifically plead the same, failing which he shall be precluded from claiming benefit of the same.

In the light of the plea taken by the accused, it becomes necessary for the prosecution to investigate the case further, which can be made with the leave of the court, the committee says.

On considering the prosecution and defence statements, the court shall formulate the points for determination that arise for consideration, and they shall indicate on whom the burden of proof lies. The allegations that are admitted or not denied need not be proved and the court shall make a record of the same, the committee says.

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