Dr. Justice V.S. Malimath Report First pages - Ministry of Home Affairs

48
The common man’s common sense approach to the doctrine of Right to Silence
is beautifully portrayed in the following extract:
It is normal for a child who has stolen a cookie to be questioned by
his parent on its disappearance. It would be absurd if the child’s
defence is that he may not be questioned and in any event cannot be
expected to reply as this might incriminate him. Yet when he has
stolen a bicycle this is the accepted situation vis a vis police and
court, entrenched in our Constitution. He does not even have to
raise this defence, the constitution does it for him. And we don’t
find it absurd! We don’t consider whether the legal walls which we
erect that impede society’s search for the truth are warranted. And
we have no inkling of the cost of our strange procedure in monetary
terms and in wasted judicial, prosecutorial and police man hours.
Those that know are silent.
K van Dijkhorst.
3.31 The origin of the right to silence according to Wigmore is as
follows:
In 1637 John Lilburn was charged with printing or importing
seditious and heretical books. He denied the charges and was
interrogated thereon by the Council of the Star Chamber and
furnished answers. When the interrogation shifted to matters outside
the scope of the charges he refused to answer as the interrogators
were attempting to ensnare him in order to find other charges against
him. He was whipped and pilloried for this refusal. He did not let
the matter rest and petitioned parliament and eventually in 1641 the
Star Chamber and the Court of High Commission for Ecclesiastical
Cases were abolished, mainly as a result of his protests. This affair
gave rise to the privilege against self-incrimination. It was
essentially the right to refuse to answer and incriminate oneself in
the absence of a proper charge. Not initially, the right to refuse to
reply to a proper charge. And certainly not the right not to be
questioned. From this developed a philosophy that the culprit may
not be required to assist his adversary, the state, in giving him his
just desserts – due punishment for his crimes. That would be unfair.
It would be an unequal contest.