Quick answer
A person questioned by the police need not answer questions whose answers would tend to incriminate him (expose him to a criminal charge, penalty or forfeiture). Article 20(3) of the Constitution says no person accused of an offence shall be compelled to be a witness against himself, and Section 180(2) B.N.S.S. excuses answers that would expose a person to a criminal charge, penalty or forfeiture. In Nandini Satpathy v. P.L. Dani (1978), the Supreme Court held that this protection applies during police interrogation, not only at trial. It is not a licence to refuse every question: harmless, non-incriminating questions must still be answered truthfully.
The law
- Article 20(3): "No person accused of any offence shall be compelled to be a witness against himself."
- Section 180(1) B.N.S.S.: an investigating officer may orally examine any person supposed to be acquainted with the facts and circumstances of the case.
- Section 180(2) B.N.S.S.: that person is bound to answer truly all questions relating to the case, other than questions whose answers would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. This is the same as Section 161(2) CrPC (old law).
The leading case
Nandini Satpathy v. P.L. Dani, Supreme Court of India, 7 April 1978 (V.R. Krishna Iyer, Jaswant Singh and V.D. Tulzapurkar, JJ.; opinion by Krishna Iyer, J.), reported as AIR 1978 SC 1025. Nandini Satpathy, a former Chief Minister of Orissa, was questioned by the Vigilance Police in a corruption case through a long list of written questions. She refused to answer, relying on Article 20(3) and Section 161(2) CrPC, and was prosecuted under Section 179 IPC for refusing to answer a public servant. The Supreme Court allowed her appeals and quashed the prosecution.
Key holdings:
- Investigation stage: Article 20(3) reaches back to police interrogation; Section 161(2) CrPC reflects the same protection in the statute.
- Meaning of "compelled": compulsion is not limited to physical force. Evidence obtained by threats, psychological pressure or an atmosphere of intimidation is compelled testimony. A mere legal penalty for refusing to answer is not, by itself, compulsion.
- Wider risk counts: an answer is protected if it could reasonably expose the person to a charge in another pending or likely case, not only the case under investigation.
- Selective refusal: the person may refuse only those questions that would incriminate; non-incriminating questions must be answered.
- Lawyer: where practicable, police should permit the accused's advocate, if there is one, to be present during examination, although the police need not provide one.
- Offence of refusing to answer: Section 179 IPC needs a guilty mind; an innocent or unwitting failure to answer is not the offence.
Incriminating and non-incriminating questions
| Type of question | Example | Must it be answered? |
|---|---|---|
| Neutral, identifying or background | "Where do you live?" | Yes, truthfully (Section 180(2)) |
| Incriminating | "Admit that you took the money" | No; protected by Article 20(3) and Section 180(2) |
Example
During a theft investigation, an officer asks Aadil where he lives and then asks him to admit that he committed the theft. Aadil must truthfully give his address. He may decline to answer the second question, because the answer would tend to expose him to a criminal charge. Threatening him with prosecution until he confesses would risk the kind of pressure that Nandini Satpathy treats as compulsion.
Current law note
Section 161(2) CrPC is now Section 180(2) B.N.S.S., with the same wording on incriminating questions. The offence of refusing to answer a public servant authorised to question, formerly Section 179 IPC, is now Section 214 B.N.S., with simple imprisonment up to six months, or fine up to 5,000 rupees, or both. Because the wording of the protection is unchanged, the reasoning in Nandini Satpathy applies equally to Section 180(2). For the arrested person's right to meet an advocate during interrogation, see Section 38 B.N.S.S. and the B.N.S.S. complete notes.
Exam point
Nandini Satpathy (1978): Article 20(3) and Section 161(2) CrPC (now Section 180(2) B.N.S.S.) protect against compelled self-incrimination during police interrogation, but only for incriminating questions.
