The vow vs the law

Serving her sentence at the Parappana Agrahara central prison in Bengaluru, ousted interim general secretary of the AIADMK, VK Sasikala, had refused to furnish a statement to the Income Tax department maintaining that she had taken a vow of silence – apparently since Jaya’s first death anniversary last December. 

Now, speculations are rife that she might take refuge under the vow even when retired justice A Arumughaswamy, the one-man commission probing the hospitalisation and subsequent death of former Chief Minister J Jayalalithaa, comes calling, seeking clarifications on what transpired in those 75 days. 

Under the present circumstance where the information vacuum is filled with rumours, speculations and even conspiracy theories, does Sasikala have the right to remain silent? 

“The burden is on the prosecution to prove one’s guilt. That burden should be discharged only by the prosecution, through their own witness. They cannot in any way seek the help of the accused to discharge their burden. In view of this criminal jurisprudence, the accused has a constitutional right to remain silent. If the accused is forced to make a statement, that is a violation of Article 21 of the Constitution,” said advocate M Radhakrishnan, explaining the legalities of the matter. 

That is, even without the vow of silence, Sasikala is well within her rights to remain silent. She cannot be forced to reply any question that is put to her in this regard. 

This does allow the court to make an adverse finding against the accused who refuses to make a statement to the investigators but produces ‘evidence’ during the trial. It has led to debates world over, with the UK and EU introducing such a provision. But in India, in view of the constitutional provisions against self-incrimination, the prosecution has to prove guilt without basing it on confession or even narco analysis.

Pointing out that the crux of the argument is the legal principle that none can be a witness against herself, legal experts admitted that there is a possibility that truth may never surface in some cases. “But within the realm of present law, there is no way to find the truth other than examining all other circumstances, leaving aside the silence of the person who may know everything,” said an expert. 

However, this is not a blanket exemption from cooperating with any interrogation, as made clear by a judgment of the Madras High Court.

“An accused in a criminal case cannot object to his custodial interrogation claiming he has got an absolute right to maintain silence to questions posed, and therefore no purpose would be served in taking him under police custody,” held the High Court, while hearing a police inspector’s plea seeking permission for custodial interrogation of a DMK legislator. 

Passing the order, Justice S Nagamuthu brought in the nuance that the right of the accused to maintain silence was restricted to questions which might expose him to a criminal charge, penalty or forfeiture. In other words, the accused is bound to answer all other questions related to the case, and refusal to do so would amount to an offence under Section 179 of the Indian Penal Code. 

This is not the first time that the right to remain silent is invoked, but the political nature of the case and the magnitude of the allegations have prompted at least a section of lawyers who spoke to DTNext to seek ways and means to legally circumvent the loophole. “When a person refuses to disclose the truth known to her, the law should not become helpless; there should be some provision to punish such persons,” said an advocate. 

Concurring with the view, advocate Radhakrishnan added, “Though every citizen has a constitutional right not to be a witness against herself in any criminal or inquiry proceedings, she is supposed to disclose all the truth which does not in any way prejudicially affect her. When such statement is not forthcoming, the law should ensure that the person is appropriately punished.”

Agreeing to this, senior counsel P Wilson noted that the commission had issued notice under Section 8B of the Commissions of Inquiry Act of 1952 – this provides opportunity for any person, whose reputation is likely to be affected by the inquiry, to present her case before the commission. 

“When Sasikala remains silent and avoids the inquiry commission, her silence is a silent approval against accusations. The commission can very well draw adverse inference against her,” Wilson contended. 

While the questions about Jaya’s last days and death continue to linger on even after a year, all focus is on the commission to throw light on the sequence of events. But with her closest aide Sasikala – perhaps the most significant part of the mystery – remaining steadfast on her vow, the silence is only bound to make things murkier.

20 (3): No person accused of any offence shall be compelled to be a witness against himself

No person shall be deprived of his life or personal liberty except according to procedure established by law

(2): Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them

(1): Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that

(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial

The Commission shall have the power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the commission, may be useful for, or relevant to, the subject-matter of the inquiry [and any person so required shall be deemed to be legally bound to furnish such information within the meaning of section 176 and section 177 of the Indian Penal Code, 1860]