Martin James
Article 20(3) of the Indian Constitution guarantees that ‘no person accused of any offence shall be compelled to be a witness against himself’. This doctrine of nemo tenetur se ipsum accusare, i.e., no one should be forced to accuse oneself, is one of the oldest principles of criminal jurisprudence. Yet, despite being constitutionally enshrined, this protection remains largely illusory in India. In practice, the procedures followed during investigation and trial stand in open contradiction to both the letter and spirit of this right. Extended police custody for interrogation, routine bail conditions demanding ‘cooperation’ with investigators and the continued operation of Section 27 of the Indian Evidence Act/Section 23 of the Bharatiya Sakshya Adhiniyam collectively render the constitutional promise hollow. The system continues to rely on custodial interrogation as a primary investigative tool, showing how far Indian criminal procedure still diverges from the ideals of fairness that Article 20(3) was meant to secure.
The privilege against self-incrimination has a long history under common law, originating as a reaction to the coercive procedures of the Court of Star Chamber in seventeenth-century England1. In the United States, the Fifth Amendment declares that “no person...shall be compelled in any criminal case to be a witness against himself”, constitutionalising the common law privilege and transforming it into a fundamental right.
In India, the British Indian government recognised a limited statutory principle against self-incrimination. Sections 24 to 26 of the Indian Evidence Act excluded confessions obtained through coercion or made in police custody, though section 27 carved out an exception for ‘discovery’ of facts. The logic was not constitutional but evidentiary, centred on the reliability of such confessions. The Criminal Procedure Code similarly assumed that statements extracted in custody were inherently suspect. When India adopted its Constitution, the Constituent Assembly elevated this principle into a fundamental right. This clause was influenced by the Fifth Amendment of the U.S. Constitution, but included the phrase ‘accused of an offence’. The drafting committee added this restrictive qualifier to preserve the constitutionality of section 132 of the Evidence Act2, which allows compulsion of witnesses to answer questions but grants them immunity from prosecution for the answers given.
The Supreme Court has interpreted Article 20(3) to include persons substantially suspected of an offence3 and has recognised that compulsion may take psychological as well as physical forms4,5. These principles make the conditions of custodial interrogation central to the real meaning of the right. In practice, the most serious contradiction between Article 20(3) and investigative procedure lies in India’s remand structure. Unlike most common law jurisdictions, Indian law allows prolonged police custody for interrogation. Under the BNSS, police custody may extend up to fifteen days and this period can be sought in parts during the initial 40 or 60 days before filing the charge sheet, unlike the previous Criminal Procedure Code. This change deepens an already problematic provision. Extended police custody, even when judicially authorised, exerts inherent pressure and is effectively State-sanctioned compulsion. The persistence of custodial torture in India, repeatedly acknowledged by the Supreme Court and by successive Law Commission reports, shows how this system undermines the constitutional protection. If the accused has the right to remain silent, there can be no justification for extended police custody beyond the limited time necessary to collect material evidence. Comparative provisions in the United States and the United Kingdom place strict limits on investigative detention and tightly regulate custodial questioning. There are clear and enforceable safeguards governing the questioning of suspects while in investigative custody. The persistence of prolonged custodial interrogation in India reveals how little has changed since the period of British imperial rule, notwithstanding the adoption of a constitutional rights framework.
Closely related is the routine practice of conditioning bail on ‘cooperation with investigation’. Courts frequently impose this as a standard requirement, and investigating officers often construe it to mean answering questions rather than merely appearing when required. A system that respects the accused’s right to silence cannot operate on this understanding. Yet, High Courts have cancelled bail on the grounds of ‘non-cooperation’ or ‘evasive answers’ by the accused6,7. These practices amount to indirect compulsion. Thus, bail jurisprudence in practice fails to give meaningful effect to the constitutionally protected right against self-incrimination. Judicial reaffirmation is required to ensure that ‘cooperation’ does not become a euphemism for compelled self-incrimination. In fact, in a legal system that respects a right against self-incrimination, there is no justification for the requirement of an accused ‘cooperating’ with the investigation.
Section 23 of the Bharatiya Sakshya Adhiniyam (formerly Section 27 of the Indian Evidence Act) highlights a statutory inconsistency that sustains this problem. Sections 23(1) and 23(2) exclude confessions made in police custody on the ground of unreliability. Yet Section 23 creates an exception by admitting so much of a statement as distinctly relates to a fact discovered in consequence of it. This exception was introduced in the Indian Evidence Act era, when the concern was primarily evidentiary reliability rather than constitutional compulsion; in its present form, it now sits uneasily with Article 20(3). As has been previously argued8, this exception, in effect, constitutionalises coercion by rewarding custodial disclosures. Since police custody is inherently coercive, any confession obtained therein, without effective safeguards, violates Article 20(3) and must be treated as unconstitutional.
Three related deficiencies aggravate the problem. First, there is no statutory or constitutional requirement to inform an accused of their rights under Article 20(3) at the time of arrest or interrogation. Second, while Article 22(1) guarantees the right to consult counsel, courts have not recognised a right to have counsel present throughout the interrogation. Third, Indian law lacks any form of the ‘fruit of the poisonous tree’ doctrine to exclude derivative evidence obtained through illegal or coerced means. Introducing Miranda-style warnings9 would be a modest but essential step toward enforcing these rights. Guaranteeing the presence of counsel during interrogation is equally critical, particularly given the limited legal literacy among citizens. While Section 38 of the BNSS entitles an accused to meet with counsel during interrogation, the right is limited in scope since the advocate is not permitted to remain present throughout the interrogation and may only be allowed to meet the accused at specified intervals, leaving the questioning itself outside the continuous oversight of legal counsel. The Supreme Court’s judgment in Delhi Judicial Service Association v. State of Gujarat10 recognised that even judicial officers must be protected from coercion during interrogation and required the presence of counsel or peers during their questioning. This special protection for judicial officers ironically underscores what could benefit all accused: the presence of counsel. If a judicial officer, who is knowledgeable of the law, could be coerced or framed, an ordinary citizen is much more liable to be mistreated by the investigative authority. So any fair protection under law and application of 20(3) and 22(1) should see that all accused should have the right to have counsel present during interrogations.
The cost of ignoring Article 20(3) is not only constitutional but human. Custodial torture and deaths remain endemic. According to NHRC data, 160 deaths in police custody were reported in 2023-24, and recent reports from the National Campaign Against Torture confirm that many of these result from systematic abuse. Coerced confessions are unreliable, and their acceptance leads to wrongful convictions, as tragically illustrated by the Akshardham Temple attack case11, where innocent persons were convicted on coerced evidence before being acquitted years later. These incidents are the tragic cost of a legal system that doesn’t respect Article 20(3). When law enforcement substitutes confession for investigation, it undermines the rule of law, discourages witnesses from coming forward and erodes public faith in justice. The overreliance on confessions also stunts the development of professional policing and scientific investigation.
Article 20(3) was meant to embody the civilized restraint of a constitutional democracy, but in practice, it remains a legal fiction. The persistence of custodial coercion, compelled cooperation and statutory exceptions shows that the Indian criminal process has yet to internalise the principle that the burden of proof lies on the State, not the citizen. To realise the spirit of this right, concrete legislative and judicial reforms are needed. The most crucial step would be to amend section 23 of the Bharatiya Sakshya Adhiniyam by deleting its discovery exception or to subject it to a constitutional test under Article 20(3). Its amendment would align Indian law with both the constitutional ethos of fairness and international best practices, while reducing the incentive for custodial torture. Adopting an exclusionary rule for coerced and derivative evidence and mandating warnings and counsel's presence during interrogation would further protect this right. Unless such reforms are undertaken, the right against self-incrimination will remain what it largely is today, a constitutional promise seldom honoured in practice.
1. The Trial of John Lilburn and John Wharton, 3 Howell’s State Trials 1315 (1637)
2. B. Shiva Rao, The Framing of India’s Constitution Vol 3 (1966)
3. Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424
4. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
5. Selvi v. State of Karnataka (2010) 7 SCC 263
6. K. Madal Virupakshappa v. State of Karnataka, 2023 (3) AKR 90 (Karnataka HC)
7. Lalit Mohanlal Kothari v. State of Maharashtra, Criminal Application (St.) No. 3901 of 2020, decided 27 January 2021 (Bombay High Court)
8. Khagesh Gautam, ‘The Right Against Self-Incrimination Under the Indian Constitution and the Admissibility of Custodial Statements Under the Indian Evidence Act, 1872’, Doctoral dissertation, Maurer School of Law - Indiana University (2021)
9. Miranda v. Arizona, 384 U.S. 436 (1966)
10. Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Others (1991) 4 SCC 406
11. Adambhai Sulemanbhai Ajmeri v. State of Gujarat (2014) 7 SCC 716