compellable witness

As a rule every competent witness is also compellable: he can be summoned and punished for refusing to attend or answer. There are exceptions. Diplomatic agents cannot be compelled to give evidence, and an accused person cannot be compelled to be a witness against himself (Article 20(3)); he may give evidence in his own defence only if he chooses.

Keep three ideas apart. Competency asks whether a person may testify; compellability asks whether he can be forced to; privilege asks whether a compellable witness may refuse particular questions. A spouse, for instance, is competent and compellable but cannot be made to disclose marital communications (s.128 BSA, old s.122 Evidence Act).

Example

The wife is a compellable witness and must attend, but she may refuse to disclose what her husband told her during the marriage.

In Indian law

• Article 20(3), Constitution of India (protection against self-incrimination)
• Section 128, Bharatiya Sakshya Adhiniyam, 2023 (old s.122, Evidence Act) (communications during marriage)
• Article 31(2), Vienna Convention on Diplomatic Relations, 1961 (diplomatic agent not obliged to give evidence)

See also

competent witness · privileged communication · nemo tenetur se ipsum accusare

Read more in the study notes

• Competency of witnesses and the child witness (Bharatiya Sakshya Adhiniyam)