Adverse Inference from Silence: An Urgent Need in Rape Cases

Abstract

The right of silence, like all other good things, may be loved unwisely, may be pursued too keenly, may cost too much. ‘Presumption of Innocence’, ‘burden of proof on the prosecution’, ‘beyond reasonable doubt’, ‘right to fair trial’ and ‘privilege against self-incrimination’ are principles of common law.The right to silence along with being a common law principle 'Nemo tenetur se ipsum accusare' , has its justification in India in the form of a constitutional protection granted under Article 20(3) and 21 of the Indian Constitution. The right to remain silent during trial engender conditions under which tapping the accused, as a source of information becomes an unattainable goal. The nature of the right makes it an unsuitable exercise on the part of the judge to draw adverse inference from his silence. The paper would seek to establish that the rule against adverse inference from silence is deleterious to the Indian judicial system. The need for an immediate reform in the adverse inference rule, especially in the cases of rape would be elucidated. Part I would deal with the right to remain silent and adverse inference rule as it operates in India and comparison would be drawn with England and Wales, Ireland, USA, Germany and France. Part II would deal with the distinct nature of the offense and rape and elaborate on the need of drawing adverse inference in cases of rape.