Right Against Self-Incrimination

Article 20(3) protects an accused person from being forced to provide evidence of a testimonial or communicative character that could incriminate that person. It states that no person accused of an offence shall be compelled to be a witness against himself or herself. It thus constitutionalises the right to silence, while not creating immunity from the lawful collection of all evidence.

Conditions for protection

The guarantee applies when three conditions coexist: there must be an accusation of an offence, the evidence must be compelled, and it must have a tendency to incriminate the accused.

• The protection is available only to a person against whom a formal accusation has been made, not to every witness examined during an investigation.
• The expression compulsion covers physical or psychological coercion and is not confined to testimony given inside a courtroom.
• In Nandini Satpathy v. P.L. Dani, the Supreme Court recognised that the protection operates during police interrogation as well as at trial.

Evidence covered by the guarantee

The phrase "to be a witness" covers compelled personal testimony, including oral answers and communicative acts that convey the accused's personal knowledge.

• An accused may refuse to answer questions when the answers would have an incriminating tendency.
• In Selvi v. State of Karnataka, the Supreme Court held that involuntary narcoanalysis, polygraph examination and brain-mapping techniques violate testimonial autonomy under Article 20(3).
• A voluntary statement is not prohibited by Article 20(3), though its admissibility must satisfy other applicable legal rules.

Limits of the protection

Article 20(3) distinguishes compelled testimony from the collection of physical or identifying evidence. It protects the accused from being made a source of personal testimony, not from being the source of material evidence.

• In State of Bombay v. Kathi Kalu Oghad, the Supreme Court held that giving fingerprints, handwriting specimens or similar identifying material is not testimonial compulsion.
• The lawful collection of physical evidence, such as blood samples, ordinarily falls outside Article 20(3).
• A search or seizure does not by itself compel the accused to become a witness against himself or herself.