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Right to Silence - Megha Mishra

Updated: Nov 29, 2020


Indian constitution is the supreme law by which everyone is ruled. It provides set of rules, laws, rights and duties to be followed and obeyed by all. Right to be silence is a part of the fundamental right that is given in part three of the constitution. Article 19 (1) (a) of Indian Constitution tells us about freedom of speech and expression which gives us an option to express ourselves freely but along with that it also enlighten us with the fact of not expressing ourselves.

Article 19(1) (a) gives us right to express ourselves under the “interests of integrity and sovereignty of India”. Whenever we exercise our fundamental rights some duties tag along with referring to article 19(1) (a) we need to ensure the security, relations, public order, morality, decency are still intact and our acts don’t result in the matter of defamation or contempt of court. The rights to speech, freedom and expression also implies the right to silence. As we discussed the ingredients to be mentioned which comes with right to speech it also accompanies in the right to silence which says that we have right not to listen and no to be forced to listen. The rights comprehended the freedom to be free from what one desires to be free form.

If we talk about the basics of a country, we have every kind of person some pertaining their ideas, opinions and dreams and saying it out loud same just choose to be silent and not to speak about it and they can’t be held responsible for the act by any court as it is a part of exercising the right. Example: - Using of loudspeakers may be incidental to the exercise of the right but it doesn’t count as necessity as it can only not be used as a part of the right covered under Art 19 (1). In respect of this right to exercise a case can be taken into consideration i.e. “Emmanuel v. State of Kerala”. In this case three students were restricted from the school as they were not singing the National Anthem during the school’s assembly. In their defence they laid out singing the National Anthem was against their religious belief and practices as they were followers of Jehovah witness so the school authorities expelled them from school but they filed a case emphasising that they were exercising their fundamental right, right to be silent they could have been contempt by a court if they harmed the integrity of the national anthem or disrespected the national anthem they were just standing in their quietly practicing their right to silence.Accordingly, it was held that the children’s expulsion from the school was a violation of their fundamental right under Article 13(1) (a), which also includes the freedom of silence.

In the similar manner if someone in the movie hall doesn’t stand or isn’t able to stand to give respect while the national anthem is playing played can’t be conducted as disobedience towards the Nationality. Right to silence is a part of right of freedom of expression as silence can also be used a medium of expression. We have come across instances where leaders, students or authorities protest by giving a silent treatment, if silence can’t be deemed as acceptance in any agreement in the same way it can also not be deemed as ignorance in any agreement. But we can use silence as medium of expression to show our anger or to show or negative response towards any idea or belief.

There is another perspective to be added while talking about the right to silence under article 20 (3) where it gives rights to a person under detention such as:-

1. The person is not compelled to answer the questions asked to them by the authorities, police.

2. Neither they are bounded to give any evidence in court but may ask the prosecutor to proof.

3. Lastly the person can’t be deemed guilty merely on the basis of silence with several notable exceptions

Along with art.20 (3), 21 of the Indian constitution and s. 161 (2), 313(3) and 315 of code of criminal procedure 1973, the right to silence of accused is preserved.

In the “law commission report number 118 on article 20(3) right to silence, pointed out some major facts about the right of accused by Justice M. Jaganmadha Rao written to Shri Arun Jaitley Minister of Law, Justice on May 9, 2020.


Right to silence is not a coded fundamental right but it is an implied one, when we talk about right to freedom of speech and expression we also have a right not to express anything and just be silent same as like right to live and right not to live. Moreover right to remain silent is a principle of the common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or even by the prosecutors that a suspect or an accused is guilty merely because he has refused to respond to the questions asked to him by police or put up by court. In the same manner if a politician or any public figure refuse to interact with media just by saying no comments then they are also practising their right to silence provided to them as a part of fundamental right. Even before our constitution was made right to silence was used as a form of expression, Dandi March by Gandhi Ji was such an act where he just protested in a peaceful manner without using any slogans or speech or any other form of expression it was just silence which was used and it worked in its most emphasising manner.

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