Legal Articles

Right to Silence

We have heard the following dialogue endless times in movies  and TV serials – “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”
Free expression is the fundamental fountain-head of democracy. The ‘right to silence’ is a principle of common law and it means that normally courts ortribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors,that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.
The International Covenant on Civil and Political Rights, 1966 to which India is a party states inArt. 14(3) (g): “Not to be compelled to testify against himself or to confess guilt.”

Article 20(3): Protection Against Self Incrimination And Right To Silence
The principle of protection against self-incrimination is a fundamental principle of the British system of criminal jurisprudence. From there the principle find its place in all civilized legal systems following common law jurisprudence. It has been adopted by the American system by the Fifth Amendment of the American Constitution, which provides that no person shall be compelled in any case to be a witness against himself. Thusthe protection in American Constitution is available to all persons and in every proceeding, civil or criminal, and the Courts have given a very wide interpretation to the protection. Under Indian law the principle hasbeen given Constitutional status by incorporating it under Article 20(3) of the Constitution. It says that-

“No person accused of any offence shall be compelled to be a witness against himself.”
In the Indian context, clause (3) of Art. 20 of the Constitution of India guarantees a fundamental right against self-incrimination. Art. 21 grants a further fundamental right to lifeand liberty and states that the liberty of a person cannot be taken away except by a procedurelaid down by the law. The Constitution of India raises the rule against self-incrimination to the status ofconstitutional prohibition. The purpose ofthis protection is to prevent torture and inhuman treatment of the accused at the hands ofinvestigating agencies to extort confessions.
What is stated in the Constitutions and Laws is quite evident. It is pleasing to note that the legal ideology resonates with the great minds which remain a guiding light even today. To quote a few –
“It is better to remain silent at the risk of being thought a fool, than to talk and remove all doubt of it.” ¯ Maurice Switzer

“Silence is the language of God, all else is poor translation.”¯ Rumi

“Blessed is the man who, having nothing to say, abstains from giving us wordy evidence of the fact.” ¯ George Eliot

“The right word may be effective, but no word was ever as effective as a rightly timed pause.” ¯ Mark Twain

Just because we can talk, doesn’t give us a right to say anything. Every right is restricted by some rules and exceptions. For example, we do not have the right to defame someone simply because we have the right to expression. Rights have been fought for and should be valued as such.

The value of good communication is being hugely recognized and rightly so. Courses on soft skills and effective communication rule the day. Besides the finer nuances of these courses, what lies at its fundamental root is the need to communicate at a basic effective manner. Human beings are essentially social creatures. We need to communicate with each other. That’s why to be put in isolated detention is a grave punishment. It goes against the basic human grain.

What is heartwarming to see is when uneducated people can communicate so effectively. What this goes to show is that many of the social skills are inherent in us. Of course, they can be polished and further enhanced. Grand mothers who barely attended school or were 10th grade passed were masters of communication. The basis of their talks were kind and loving words, care and concern, the feelings and words so genuine, that they were conveyed most effectively, even though the words may not have been of great caliber.

The mesasage of this article is that speak well and effectively. Make meaningful conversation, rather than plain noise. Else we all have the right to remain silent. It is in this context it is said, “Silence is Golden.”
Put across in profound wisdom – “Speak only if it improves upon the silence.” ¯ Mahatma Gandhi

 

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