Oral Testimonial Compulsion - A Comparative Study Of India And USA

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:42:14.047544+00:00

Updated: 2026-08-26T17:10:14.906+00:00

ORAL TESTIMONIAL COMPULSION: A COMPARATIVE

STUDY OF INDIA AND USA

Swati Mishra, Gujarat National Law University, (Silvassa)

ABSTRACT

This paper undertakes a comparative legal analysis of the doctrine of oral testimonial compulsion, focusing on the constitutional safeguards provided to accused individuals in India and the United States. At the core of this study lies the principle of protection against self-incrimination—a vital component of criminal jurisprudence in democratic societies. In India, Article 20(3) of the Constitution enshrines the right of an accused to remain silent, thereby prohibiting the state from compelling an individual to testify against themselves in a criminal proceeding. This constitutional safeguard has been interpreted expansively by Indian courts to ensure procedural fairness and the protection of personal liberties.

In contrast, the United States offers a similar safeguard under the Fifth Amendment, which provides that no person "shall be compelled in any criminal case to be a witness against himself. " Although the two provisions are rooted in common law traditions and share a similar objective, they differ significantly in their scope, interpretation, and practical enforcement. This paper explores these differences by examining judicial precedents, statutory frameworks, and the underlying philosophical foundations of the right against self-incrimination in both jurisdictions. The study delves into the implications of oral testimonial compulsion, especially in the context of custodial interrogations, polygraph tests, and narco-analysis, and evaluates the evolving legal standards governing these practices. It also analyzes landmark case laws such as Nandini Satpathy v. P. L. Dani and Selvi v.

State of Karnataka in India, and Miranda v. Arizona and Chavez v. Martinez in the United States, to trace the development of this right over time. Through this comparative lens, the paper seeks to highlight the delicate balance between state interests in effective prosecution and the individual's fundamental rights, emphasizing the need for robust legal safeguards to prevent coercive practices. Ultimately, this analysis aims to contribute to the discourse on criminal justice reform by suggesting ways in which the legal systems of India and the United States can learn from each other to strengthen the protection against compelled self-incrimination.

INTRODUCTION

The right against self-incrimination is one of the fundamental rights guaranteed to an accused of any offence. This concept was developed through a legal maxim i. e. “Nemo Tenetur Seipsum Accusare” which means “No Man is obliged to accuse himself” It is being traced in the roots of medieval times which was first appeared in the English Common law, as well as other ideas such as "burden of proof resting on the prosecution" and "establishing guilt beyond a reasonable doubt," was first acknowledged in the 18th century1. They provided the accused with some tools to defend themselves against the coercive actions of the state, thus minimising the damages done to the defendants. The precept of criminal law jurisprudence is shaped by it. It is enshrined under the Constitution of the United States under the Fifth Amendment and the Indian Constitution under Article 20(3).

This right has also been incorporated under Article 11(1) of the “Universal Declaration of Human Rights, which states that Everyone charged with a penal offence has the right to be presumed innocent until proved guilty. ”2 according to the law in a public trial at which he has had all the guarantees necessary for his defence, as well as in article 1& 14 of the “International Covenant on Civil & political Rights, stating, all peoples have the right of self-determination. Under that right, they freely determine their political status and freely pursue their economic, social, and cultural development. ”3.

“The fundamental right given under Article 20(3) acts as a protective umbrella against testimonial compulsion in respect of persons accused of any offence from becoming witnesses against themselves4The protection given to the accused commences as a formal accusation is being made against the person, which can be made through: • Initiating the filing of a First Information Report • Submitting a complaint in court • Serving a show-cause notice under a special criminal statute 1 Riya Raj, Why Is Compulsory Self-Incrimination Considered to Give Privileges? , JUS CORPUS L. J. (2022), https://www. juscorpus. com/why-is-compulsory-self-incrimination-considered-to-give-privileges/ (last visited Feb. 16, 2025)

2 Universal Declaration of Human Rights art. 11(1), Dec. 10, 1948.

3 International Covenant on Civil and Political Rights art. 1, Dec. 16, 1966, 999 U.N.T.S. 171.

4 Justice U.C. Srivastava, Immunity from Self-Incrimination under Article 20(3) of the Constitution of India, JTRI J. (1996), https://ijtr.nic.in/articles/art19.pdf (last visited Feb. 18, 2025).

This leads us to the conclusion that there must be a proceeding initiated against a particular person. The interpretations of this protection were modified to broaden the application of article 20(3). It was no longer limited to evidence obtained during the trial before the court, but also extended to safeguard the individual during police interrogation and investigation subsequent to becoming accused of an offence. Personal testimony includes. , oral and written testimonies, both of them were covered by the Fifth Amendment, which safeguards individuals from being compelled to provide self-incriminating evidence. In contrast to India, where this protection only extends to the accused, in the United States, both witnesses and defendants have the right to invoke protection against self-incrimination during investigations and court proceedings.

This right is being backed by certain principles of criminal law: • "Item quilbet presumitur innocens nisi probetur nocens,” which means a person is presumed innocent until proven guilty. “This principle acts as protection against erroneous convictions and ensures that an accused is not oppressed by the immense power and resources of the State”5. • “Ei incumbit probation qui dicit, non qui negat” which means that the onus to prove the guilt rests upon the prosecution beyond any reasonable doubt and not on the defendant. • The person who is accused has the right to stay silent and cannot be forced to provide any information that would incriminate themselves.

RATIONALE BEHIND THE RIGHT AGAINST SELF-INCRIMINATION

The idea behind this right has been put forth in the case of “Saunders v. United Kingdom”6 in which the European Court of Human Rights has ruled that the right to a fair trial encompasses the right to remain silent where there is an apprehension that would incriminate the accused. The court said that, “the right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seeks to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the 5 Sachin Suryakant Patil, Critical Analysis of Presumption of Innocence and Reverse Burden of Proof in India with Comparative Study (Research Proposal, Swami Ramanand Teerth Marathwada Univ. 2022), https://shodhgangotri. inflibnet. ac. in:8443/jspui/bitstream/20. 500. 14146/11614/1/final%20synopsis- %20s%20s%20patil.

pdf (last visited Feb. 18, 2025).

6 Saunders v. United Kingdom, 23 Eur. H.R. Rep. 313 (1997).

accused” 7. It was suggested that to prevent the state from interfering in the interests of the accused, which could result in miscarriage of justice, it is crucial to ensure protection for the accused. I.

ORAL TESTIMONIAL COMPULSION

Compulsion means duress, meaning thereby, an act of applying force on someone to do something against the volition of the person, which can be achieved through physical or mental force. Thus, testimonial compulsion is the act of being compelled to give testimony. At the point of oral communication with the tribunal, a witness may assert the privilege against selfincrimination only in the context of "testimonial compulsion"8. The provision of selfincrimination serves as an exception to the general rule of testimonial compulsion In the case of In Re, Central Calcutta Bank Ltd. , Justice P. B. Mukharji observes: — ‘‘Testimonial compulsion is the very foundation of the law of evidence for without such compulsion every refusal to give evidence will render administration of justice impossible”9.

The constitutional provision of self-incriminating evidence was incorporated to defend justice and to ensure the protection of an accused from such traps. Oral personal testimony can include pieces of evidence made through verbal and written statements, along with gestures in case of dumb witnesses. Section 119 of the Indian Evidence Act, 1872 says that “A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence” 10. Similarly, in the US, they do not exclude witnesses based on disabilities, even witnesses who are deaf and unable to speak can provide evidence through gestures or written statements by appointing an interpreter or assistants.

7 Id.

8 Jerry E. McAdow, Self-Incrimination: Testimonial vs. Non-Testimonial Evidence, 43 DENV. L. REV. 483 (1966), https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=3822&context=dlr#:~:text=173%20(1884).&text=At %20the%20point%20of%20oral,elements%20of%20testimonial%20evi-%20dence (last visited Feb. 20, 2025). 9 Central Calcutta Bank Ltd. v. Deputy Secretary, Government of West Bengal, AIR 1957 Cal. 520, 61 Cal. W.N.

709 (India).

10 Indian Evidence Act, No. 1 of 1872, § 119 (India).

II.

CONSTITUTIONAL PROVISIONS IN INDIA

Article 20(3) of the Indian constitution ensures the fundamental right of protection against selfincrimination, “No person accused of an offence shall be compelled to be a witness against himself”11, this provision serves as a protecting mechanism for those who are termed as an accused of any offence from being forced to testify against himself through any criminal trap. This provision has a broad scope and remains effective even during emergencies and cannot be suspended by virtue of the 44th Amendment Act, 1978.

SCOPE AND ESSENTIALS

The court, while interpreting this provision, tried to resolve the very connotation of “to be a witness” with “furnishing evidence”. There should exist a balance between the collection of evidence and the rights of the accused person. The Supreme Court of India in the case of “M. P. Sharma v. Satish Chandra”12 has established the components of the provision as:

This right pertains to “an accused of an offence” • The protection is provided against the “compulsion to be a witness” • The protection is in place to prevent him from being forced to provide evidence "against himself. " The issues of this case revolve around the question of in respect of article 20(3) was such that whether the search and seizure of documents under Sections 94 and 96 of the Code of Criminal Procedure is classified as a compelled production as outlined in Article 20(3) of the Constitution. In interpreting this case, the court has emphasized that a defendant may be forced to provide evidence against themselves through spoken or written statements, as well as through non-verbal means such as producing an item or evidence using other methods. The evidence may be given verbally or through the presentation of an item or document.

Moreover, the court ruled in this instance that an individual accused in the F. I. R. by the police and subject to investigation ordered by the magistrate could seek the protection of this guarantee.

11 INDIA CONST. art. 20, cl. 3.

12 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 (India).

The use of term "to be a witness" in Article 20(3) is noteworthy, as it indicates that the protection against compelled testimony extends beyond oral testimony to encompass the compelled production of documents, it was observed that under evidence law, one could be a witness by methods other than giving oral evidence, through the production of documents. Therefore, the Court held that Article 20(3) would apply to the production of documents as well as oral testimony. The Supreme Court in the case of “State of Bombay V Kathi Kalu Oghad”13 had established that court had given a very broader view of the term “to be a witness in the case of M. P. Sharma, a second attempt was made to clarify the meaning of “to be a witness”.

It was stated by the Hon’ble SC that, "To be a witness means imparting knowledge in respect of relevant fact”,14 through oral or written statements based upon his knowledge to be communicated to the court or the person conducting the inquiry or investigation. Providing information covers only those facts which are known to the person per se, and it should be communicated by his positive volition. The mechanical process of producing documents in the court cannot be included to provide insight into the disputed issue. The judgment did not offer protection to material evidence such as fingerprints, thumbprints, photographs, and blood samples, which the court considered to be beyond the scope of Article 20(3).

Consequently, the court concluded that an individual can only be compelled to produce physical evidence, and “to be a witness" may only refer to providing oral or written statements rather than a broader interpretation. In the case of “Nandini Satpathy v. P. L. Dani”15, Smt. Nandini Satpathy, former Chief Minister of Odisha, was accused of corruption under the Prevention of Corruption Act. She was summoned by the police for interrogation at the police station. The issue raised before the court of law was such that whether the accused has the right to remain silent during police interrogation and whether, by virtue of section 161 of CrPC, the accused can be compelled to give evidence against himself.

The court held that article 20(3) can be invoke during police interrogation, however, the police is authorised to examine the witness under section 161 Crpc but “such authority does not extend to compel such witness to give testimony against himself - right of witness to keep silence extents to other matters also if it exposes him to criminal charges in other cases - compelled testimonies cannot be admitted as potent evidence”16. The

13 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 (India).

14 State of Bombay, supra note 13.

15 Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025 (India).

16 Code of Criminal Procedure, No. 2 of 1974, § 161(2) (India).

court stated that, right to remain silent has the same status as that of a constitutional right against self-incrimination. The technological advancement has no doubt increased the ambit of this provision to a greater extent. Based upon this advancement, the Supreme Court encountered a case named “Selvi v. State of Karnataka”17 the issue was such that, whether the polygraph test (Lie detector test), Brain Electrical Activation Profile Test (BEAP), and Narcoanalysis are violative of Article 20(3)? The 3-judge bench in this case answered the constitutional validity of the involuntary administration of these techniques, The court stated two rationales of the said provision: I) reliability of the information provided and II) voluntariness of the statements admitted as

evidence. Involuntary administration of such techniques is violative of Article 20(3) irrespective of it being inculpatory or exculpatory in nature. These tests bear the status of “testimonial” and not material evidence, thus evidence procured by these tests by means of compulsion could not stand a chance of being admissible in the court of law. The Narcoanalysis techniques have a testimonial character as they involve the accused to speak while being in drug drug-infused state, hence, compulsory and involuntary administration of such technique would destroy the very essence of Article 20(3). III.

CONSTITUTIONAL PROVISIONS IN THE US

The provision of self-incrimination is guaranteed under the Fifth Amendment of the U.S. Constitution, which is being borrowed by the Indian Constitution under Article 20(3). The Fifth Amendment reads as “no person shall be compelled in any criminal case to be a witness against himself”. Individuals are protected from being forced to incriminate themselves by a Constitutional right. They have the right to choose not to respond to questions, opt not to provide statements that could implicate them, or decline to give testimony in a criminal trial. The principles of this provision are almost same as that of article 20(3), but its scope is broader than article 20(3) of Indian Constitution, as it is relevant not just for individuals accused of a crime, but for anyone involved in any legal case (whether civil or criminal) who might face the risk of self-incrimination.

17 Selvi v. State of Karnataka, (2010) 7 SCC 263 (India).

SCOPE OF FIFTH AMENDMENT

The scope of the Fifth Amendment is broader compared to Article 20(3). Both oral and written testimony are covered by the Fifth Amendment, which safeguards individuals from being compelled to provide self-incriminating evidence. In contrast to India, where the protection only extends to the accused, in the United States, both witnesses and defendants have the right to refuse to provide self-incriminating evidence during investigations and trials. In the U. S. , there is a certain notification called Miranda Rights that is rightly followed, which acts as a warning statement given by the police to the criminal suspect while interrogating them in police custody, which acts as advice given to the accused to inform them of the consequences of such interrogation.

The four Miranda Warnings are as follows: • Right to remain silent • Whatever you say may be used against you in a legal proceeding • You are entitled to have a lawyer • If you are unable to afford a lawyer, one will be provided for you In the case of “Miranda v. Arizona”18Ruled about the right against self-incrimination under the 5th and 6th amendments of the United States Constitution. Miranda's confession being used as evidence was found to violate his constitutional rights under the 5th and 6th Amendments. The 5th Amendment ensures protection from self-incrimination and mandates that the police inform the detainee about their rights, while the 6th guarantees criminal suspects the right to a personal or state-appointed attorney. The U. S. court held that any statements made by an individual without a Miranda warning are inadmissible in a court of law. In the case of “Chavez v.

Martinez”19 the U. S. court ruling in this instance made it clear that the Fifth Amendment's safeguard against self-incrimination is mainly intended for use in court proceedings. It was determined by the court that coercive police questioning does not, by itself,

18 Miranda v. Arizona, 384 U.S. 436 (1966).

19 Chavez v. Martinez, 538 U.S. 760 (2003).

breach the Fifth Amendment unless the resulting statements are utilized in a criminal prosecution against the individual. IV.

COMPARISON OF PROTECTIONS IN INDIA AND THE USA

Both nations provide a strong mechanism to protect an individual from being self-incriminated by the incorporation of a constitutional right against self-incrimination. However, the methods for enforcement, applicability, and scope vary between the two countries. The scope of the Fifth Amendment provision is broader than Article 20(3) because it is derived from the same. While the Fifth Amendment serves as the foundation, Indian courts have developed their interpretation of this provision in light of technological advancements, allowing for the recording of evidence through testimonial compulsion. The expansion of protection against self-incrimination has been actively pursued by the Indian judiciary. Fair treatment of the accused during interrogations has been underscored by the courts.

The Indian courts, through their various judgments, mandated the very fact and even accused has a selfdignity and privacy, and that needs to be protected to a greater extent. Elimination of involuntary administration of harmful and tactful means upon the accused should be restricted to establish the principle of “innocent until proven guilty”. The U. S. Constitution, by establishing the connotation of Miranda warnings, provides a safeguard to the individual about the possible consequences. However, the American courts have established that the silence of the accused can only be considered when determining the severity of the punishment. V.

CHALLENGES

Despite such protective measures serving as a constitutional right, nations' challenge towards the reliable and complete applicability of such rights never ends. In the Indian context, the challenge would be the absence of rights such as Miranda warnings, which should be mandated in the Indian constitution to make the accused aware of their right to remain silent at the time of inquiry and interrogations. Moreover, in the U.S. Even with strong procedural protections in place, police officers can still obtain coerced confessions without infringing upon the Fifth Amendment as long as the

statements are not utilized in a criminal trial. This results in a loophole in safeguarding individuals during custodial interrogations. VI.

CONCLUSION

The Legal system throughout the world works on the “Common Saying that it is Better that Ten Guilty Persons Escape than that one Innocent Suffer”, as quoted by the great jurist Blackstone. In the light of this principle, the constitutional right against self-incrimination provides a safeguard to the accused from being self-incriminated. The system can proactively participate in the advancement of science & technology, but it shouldn’t violate in any condition the basic demand of the society, i. e. , equity and fairness. The right is enshrined under the Fifth Amendment of the U. S. Constitution and Article 20(3) of the Indian Constitution; prima facie protects the interests of the accused while it also preserves the interest of the state, which is primarily responsible for maintaining law & order in the society.

Criminal incrimination is a broad principle, and the judiciary should establish it considering the ethical, social, and technological aspects of mankind. The rationale behind this law is solely to keep the accused away from being trapped in any criminal incrimination; however, in the U. S. , under the Fifth Amendment, this protection extends to witnesses as well. However, in India this law doesn’t extends to the suspects and witnesses per se, but by interpreting section 161(2) read as “Examination of witnesses by the police”, under which the prime suspects & the witnesses in a criminal case are not bound to answer those questions that could incriminate them. The principle is evident in various declarations and legal documents from the past fifty years, beginning with the Universal Declaration of Human Rights in 1948.

It is particularly emphasized in the European Convention on Human Rights in 1954 and the International Covenant on Civil and Political Rights in 196620. These documents serve as a moral code of conduct that could significantly safeguard the innocents from being harassed by the state. Moreover, it is the prime duty of the judiciary to look into the substantial facts in a such a way that no innocent could end up in jail, the ideology behind this law in both the nations required

20 Anshika Parth, Presumption of Innocence in Indian Law, LAWYERS CLUB INDIA (2024),

https://www.lawyersclubindia.com/articles/presumption-of-innocence-in-indian-law-16707.asp (last visited Feb. 22, 2025).

to be followed in an absolute manner, so that the foundation of righteousness and impartiality could be achieved. However, Certain loopholes exist in the implementation of this law, which may result in situations where the police apply aggressive interrogation techniques on individuals who are unaware of their basic rights. This fear leads them to confess to the crime, it makes the role of the judiciary more crucial making them duty bound to look into the matter more precisely. Lastly to summarise, it is the duty of the state to scrutinise every fact and circumstances to assure the security of the individual from any unfair treatment.

Ensuring fairness in legal proceedings and safeguarding individuals from abusive practices by law enforcement is essential, both the countries apply this law in their respective legal systems, having challenges at some extent in cases of terrorism or organised crime investigations.

BIBLIOGRAPHY

Primary sources Constitution of India Indian Evidence Act, 1872 Criminal Procedure Code, 1973 Universal Declaration of Human Rights, 1948 International Covenant on Civil and Political Rights, 1966 Case Laws Saunders v United Kingdom (1997) 23 EHRR 313 Central Calcutta Bank Ltd AIR 1957 Cal 520, 61 Cal WN 709 M.P. Sharma and Ors. v Satish Chandra and Ors AIR 1954 SC 300 State of Bombay v Kathi Kalu Oghad AIR 1961 SC 1808 Nandini Satpathy v P L Dani AIR 1978 SC 1025 Selvi v State of Karnataka” (2010) 7 SCC 263 Miranda v Arizona 384 US 436 (1966) Chavez v Martinez 538 US 760 (2003) Secondary Sources Journals, Articles & Reviews • Immunity from Self-Incrimination under Article 20(3) of the Constitution of India (1996) • Critical Analysis of Presumption of Innocence and Reverse Burden of Proof in India with

Comparative Study • Self-Incrimination: Testimonial vs. Non-Testimonial Evidence' (1966) 43(4) • Presumption of Innocence in Indian Law (2024) • Why Is Compulsory Self-Incrimination Considered to Give Privileges? (2022)