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Critical Analysis of Selvi v. State of Karnataka
February 3, 2015 by amoolya Leave a Comment
Supallab Chakraborty
Symbiosis Law School, Pune
Editors Note: The paper is a critical analysis of the landmark judgment of Selvi
v. State of Karnataka inasmuch as it deals with the evidence given by narcoanalysis, FMRI and polygraphs to be inadmissible.
INTRODUCTION
It has become appallingly obvious that our technology has exceeded our
humanity.[1]
-Albert Einstein
True; but the judgement this commentary will be dealing with namely Smt. Selvi
v. State of Karnataka[2] has given a good fight on behalf of humanity against
technology. The judgement delivered by the then Honble Cheif Justice himself
and two of his other companion judges rendered the practise of narcoanalysis,
brain mapping, FMRI and polygraph test to be unconstitutional and void. One of
its kinds; this judgement given by a three judges bench deals primarily with an all
new aspect of privacy and right against self-incrimination protected by Article
20(3) of the constitution. In short this is a landmark judgement in the history of
Indian Judiciary.
Narcoanalysis, Brain Electrical Activation Profile (BEAP), Functional Magnetic
Resonance Imaging (FMRI) and Polygraph are those boons of modern medical
science which are being followed as an alternative to third degree to tap out
information that can be used as evidence out of the accused. However there are
some standards set by the constitution which anyone gathering evidence has to
adhere to and the actions mentioned above manages to violate all of these
standards and could be easily held unconstitutional.
BACKGROUND INFORMATION

Facts of the Case

In the year 2004 Smt. Selvi and others filed the first batch of criminal appeal
followed by subsequent appeals in the year 2005, 2006 and 2007 and 2010 were
taken up together by the honourable bench of Supreme Court via special leave
petition on 5th May 2010. It is a voluminous judgement of 256 pages. In this
present batch of criminal appeals objections have been raised in respect of
instances where individuals who are the accused, suspects or witnesses in an
investigation have been subjected to these tests without their consent. Such
measures have been defended by citing the importance of extracting information
which could help the investigating agencies to prevent criminal activities in the
future as well as in circumstances where it is difficult to gather evidence through
ordinary means. It has also been urged that administering these techniques does
not cause any bodily harm and that the extracted information will be used only
for strengthening investigation efforts and will not be admitted as evidence
during the trial stage. The assertion is that improvements in fact-finding during
the investigation stage will consequently help to increase the rate of prosecution
as well as the rate of acquittal. Yet another line of reasoning is that these
scientific techniques are a softer alternative to the regrettable and allegedly
widespread use of third degree methods by investigators.
III. LEGAL ASPECTS INVOLVED & THEIR HISTORY
Privacy
Although this aspect of privacy is all new and one of the first of its kind but the
concept of privacy is a well battered topic in the history of Indian Constitution.
There is no express provision for Privacy in the Indian Constitution but the
concept is known to be imbibed in the provision of right to life and liberty
guaranteed by Article 21 of the Constitution of India in Part III.
The aspect has found its mention in the case Kharak Singh v. State of U.P.[3]
which laid down the foundation of Privacy where a Supreme Court bench of seven
judges was required to decide the constitutionality of certain police regulations
which allowed the police to conduct domiciliary visits and surveillance of persons
with a criminal record. The petitioner in this case had challenged the
constitutionality of these regulations on the grounds that they violated his
fundamental right to privacy under the personal liberty clause of Article 21 of
the Constitution.[4] In this case a majority of the judges refused to interpret
Article 21 to include within its ambit the right to privacy part the majority stated
The right of privacy is not a guaranteed right under our Constitution, and
therefore the attempt to ascertain the movements of an individual is merely a
manner in which privacy is invaded and is not an infringement of a fundamental
right guaranteed in Part III. The majority however did recognise the common law

right of citizens to enjoy the liberty of their houses. The majority therefore
understood the term personal liberty in Article 21 in the context of age old
principles from common law while holding domiciliary visits to be
unconstitutional. Two of the judges of the seven judge bench, however, saw the
right to privacy as a part of Article 21, marking an early recognition of privacy as
a fundamental right.
The question of privacy as a fundamental right presented itself once again to the
Supreme Court a few years later in the case of Govind v. State of Madhya
Pradesh.[5] The petitioner in this case had challenged, as unconstitutional,
certain police regulations on the grounds that the regulations violated his
fundamental right to privacy. Although the issues were similar to the Kharak
Singh case, the 3 judges hearing this particular case were more inclined to grant
the right to privacy the status of a fundamental right. Justice Mathew stated that
Rights and freedoms of citizens are set forth in the Constitution in order to
guarantee that the individual, his personality and those things stamped with his
personality shall be free from official interference except where a reasonable
basis for intrusion exists. In this sense, many of the fundamental rights of citizens
can be described as contributing to the right to privacy.
These cases were known more famously as midnight surveillance cases. At a
later stage many other issues cropped up in relation to privacy. One such case is
R. Rajagopal v. State of Tamil Nadu[6] laid down the foundation for balancing
right of freedom of speech and expression in relation to right to privacy. Similarly
Mr. X v. Hospital Z[7] laid down the rules of privacy available to a HIV+
patient. But in this case what is more relevant aspect to the case of Selvi v. State
of Karnataka[8] is the aspect of search and seizure of police authority and to the
extent it can curtail right to privacy of a citizen. In the case of District Registrar
and Collector v. Canara Bank[9] it was held that it is a right to let alone and every
citizen has the right to safeguard the privacy of his own. Any right to privacy
must encompass and protect personal intimacies at home.[10]It has been held
that unreasonable search and seizure amounted to violation of right to privacy
especially when no guidelines are issued as to person who may be authorized to
search the place and under what circumstances and when there are laws which
are sufficient to meet the requirement.[11]
Due Process
One thing necessary to ensure that entire process of due process has been
conformed with fundamental fairness is by judging the way evidence has been
obtained. One principle of ensuring fundamental fairness is that the accused shall
not be convicted upon coerced or involuntary confession.[12]An extension of this
principle has led to the holding that evidence obtained through force or by means
which shock the conscience shall be inadmissible. Installation of cameras in a
persons bedroom and watching over the person over a considerable long time is

not a eligible process of collecting evidence, in fact its violative of privacy

ensured by Article 21. The guarantee of Due Process that the security of ones
privacy in his own home against arbitrary is a basic to free society.[13] The
regulations imposed in the exercise of Police Power must not be arbitrary and
oppressive[14]. In other words police power must be exercised subject to
constitutional limitation, including due process.[15]
Self-Incrimination
There is also some amount of history associated with Article 20(3) of the
constitution. Compulsion means duress and it may be physical or mental. [16]
Any non-volitional positive act of an accused incriminating himself would be
compulsion within the meaning of Article 20 (3) violating the guarantee so
granted under Constitution of India by the founding fathers. The expression to
be a witness has been subject matter of Judicial decisions and has been
interpreted even differently till the year 1961 despite Supreme Courts decision in
M.P. Sharma v. Satish Chandra and others,[17] a case which was decided by a
Bench of 8 Judges of Supreme Court of India which at that stage had a strength of
8 Judges only. In Sharmas case the question was as to whether the order as to
search and seizure under section 94 Cr.P.C. was violative of guarantee under
Article 20 (3) of the Constitution. The court in the said case observed that section
139 of the Indian Evidence Act which says that a person producing a document
on summons is not a witness was not a guide to meaning of word witness. The
word witness In Its natural sense is to be understood to mean a person who
furnishes evidence. A person can be a witness not merely by giving oral evidence
but also by producing documents or making intelligible gestures in the case of
dumb witness (Section 119) or the like. The court held that production of
document In compliance with a notice to produce it would be testimonial act by
that person but the same would not amount to compelled production of the
document. The court was not called upon to answer the similarity between
production of document under the direction of court by notice or in other manner
and that every document would not become evidence unless admitted or proved
and the direction to give handwriting, thumb impression, finger print etc. or to
expose the body for measurement or give blood for testing etc., as such there
was no discussion on the point.
After the said case various High Courts interpreted and applied or distinguished
the case of Sharma (Supra) and took even contrary view. Different Benches in
three High Courts took opposite views and at least in two High Courts different
Benches took contrary views. Section 73 of the Indian Evidence Act which
authorises court to give direction to give handwriting, 3 finger print etc. was read
and applied differently.
In order to ascertain whether a signature, writing or seal is that of the person by
whom it purports to have been written or made, any signature, writing or seal

admitted or proved to the satisfaction of the court to have been written or made
by that person may be compared with one which Is to be proved although that
signature, writing or seal has not been produced or proved for any other purpose.
The court may direct any person present in court to write any words or figures for
the purpose enabling the court to compare the words or figures, alleged to have
been written by such person.
A Division Bench of Calcutta High Court in Shallendra Nath Sinha v The State[18]
with reference to section 73 Evidence Act held that an order to accused to give
specimen hand writing did not amount to compelling the accused to give
evidence and distinguished Sharmas Case (Supra) on the ground of being a case
in respect of search warrant for production of documents.
But the above view was dissented to by same High Court in Farid Ahmad v.
State[19] and Tarini Kumar v. State.[20] In first one it was held that taking of
specimen writing and signature of accused would mean furnishing of
incriminating evidence against himself positively and volitionally and not mere
passively and no such order in justified under section 73 Evidence Act, while in
the latter it was held that taking of specimen handwriting was violative of Article
20 (3) as there was no provision in CrPC, 1973 which permits police to take
specimen handwriting from accused so as to furnish evidence against himself .
According to these judgments, only if an incriminating statement was in fact
made and then admitted as evidence could a potential violation occur.[21] The
Delhi High Court went further to state that statements made during microanalysis
could be admitted as evidence in court as corroborative evidence.[22]
Cases decided by various High Courts again reached the portals of Supreme
Court of India and the cases were considered by a Bench of 11 Judges. The
majority consisting of 8 Judges disagreed in certain respects with the law laid
down by Supreme Court in Sharmas case (Supra) while the minority view (3
Judges) agreed with it to some extent. The law laid down by the Supreme Court in
the said case of State of Bombay v. Kathu,[23] still holds good and was followed
in subsequent decisions. In Kathu Kalus case the majority held that to be a
witness may be equivalent to furnishing evidence in the sense of making oral or
written statements but in the larger sense of the expression giving of thumb
impression or impression of palm or foot or finger or specimen writing or
exposing a part of body by an accused person for purpose of identification are
not included in the expression to be a witness. The Constitution makers may
have intended to protect the accused person from the hazards of selfincrimination in the light of English Law on the subject.
The proposition laid down by the Supreme Court in Sharmas case included not
only oral evidence but also documentary evidence which he may be compelled to
produce. The majority in Kathu Kalus case has narrowed down the proposition in
respect of documentary evidence to written statements conveying the personal

knowledge of the accused relating to the change against him. The protection
would not extend to other documents like statements of other person in his
custody or document showing handwriting of accused or containing foot which do
not contain the personal knowledge relating to charge against him or may
incriminate other person.
The Constitutional guarantee under Article 20(3) as interpreted in Kathu Kalus
case in the matter of handwriting, thumb impressions etc. has not been changed
in view of Supreme Court on the point of evidentiary value of thumb impression.
Even If In the case of thumb 6 Impression, court comes to definite conclusion
after examining thumb Impression, the same would not be in the nature of
personal testimony and could not be included in the definition of to be a
witness. The reasons given in majority judgment and minority judgment so far as
to be a witness against himself Is concerned still hold good.
MAIN LEGAL ISSUES INVOLVED
Whether narcoanalysis, brain mapping, FMRI and polygraph test could be used as
a constitutionally valid method of gathering evidence.
Whether these evidence gathering scheme result in dilution of constitutional
rights such as the right against self-incrimination under article 20(3) of the
Indian Constitution and Section 161(2) of Code of Criminal Procedure, 1973.
Whether the procedure undertaken be considered violative of substantive due
process.
Whether the compulsory administration of any of these techniques is an
unjustified intrusion into the mental privacy of an individual.
Whether a person is allowed to take voluntary administration of the impugned
techniques in the context of criminal justice, provided that certain safeguards are
in place.
Whether the information so sought being inculpatory or exculpatory affect the
principles of protection from self incrimination.
DECISION BY THE JUDGES
The following judgements were delivered by the judges honourable bench
namely K.G. Balakrishnan C.J.I and R.V. Raveendran J. and J.M. Panchal J. The
Supreme Court mainly on the grounds founded upon the rights conferred by
Article 20(3) came to this trendsetting landmark judgement. The judgement so
delivered can be summarised as follows:K.G. Balakrishnan C.J.I

Some of the pertinent observations made by the Chief Justice himself worth
noting and summarized as follows are:As mentioned earlier, the right against self-incrimination is now viewed as an
essential safeguard in criminal procedure. Its underlying rationale broadly
corresponds with two objectives firstly, that of ensuring reliability of the
statements made by an accused, and secondly, ensuring that such statements
are made voluntarily. [24] It is quite possible that a person suspected or accused
of a crime may have been compelled to testify through methods involving
coercion, threats or inducements during the investigative stage. When a person is
compelled to testify on his/her own behalf, there is a higher likelihood of such
testimony being false. False testimony is undesirable since it impedes the
integrity of the trial and the subsequent verdict. Therefore, the purpose of the
rule against involuntary confessions is to ensure that the testimony considered
during trial is reliable. The premise is that involuntary statements are more likely
to mislead the judge and the prosecutor, thereby resulting in a miscarriage of
justice. Even during the investigative stage, false statements are likely to cause
delays and obstructions in the investigation efforts.
The distinction between inculpatory and exculpatory evidence gathered during
investigation is relevant for deciding what will be admissible as evidence during
the trial stage. The exclusionary rule in evidence law mandates that if inculpatory
evidence has been gathered through improper methods (involving coercion,
threat or inducement among others) then the same should be excluded from the
trial, while there is no such prohibition on the consideration of exculpatory
evidence. However, this distinction between the treatment of inculpatory and
exculpatory evidence is made retrospectively at the trial stage and it cannot be
extended back to the stage of investigation. If we were to permit the admission of
involuntary statement on the ground that at the time of asking a question it is not
known whether the answer will be inculpatory or exculpatory, the right against
self-incrimination will be rendered meaningless. The law confers on any person
who is examined during an investigation, an effective choice between speaking
and remaining silent. This implies that it is for the person being examined to
decide whether the answer to a particular question will eventually prove to be
inculpatory or exculpatory. Furthermore, it is also likely that the information or
materials collected at an earlier stage of investigation can prove to be
inculpatory in due course.
There are several ways in which the involuntary administration of either of the
impugned tests could be viewed as a restraint on personal liberty. The most
obvious indicator of restraint is the use of physical force to ensure that an
unwilling person is confined to the premises where the tests are to be conducted.
Furthermore, the drug-induced revelations or the substantive inferences drawn
from the measurement of the subjects physiological responses can be described
as an intrusion into the subjects mental privacy. It is also quite conceivable that
a person could make an incriminating statement on being threatened with the

prospective administration of any of these techniques. Conversely, a person who

has been forcibly subjected to these techniques could be confronted with the
results in a subsequent interrogation, thereby eliciting incriminating statements.
We must also account for circumstances where a person who undergoes the said
tests is subsequently exposed to harmful consequences, though not of a penal
nature. We have already expressed our concern with situations where the
contents of the test results could prompt investigators to engage in custodial
abuse, surveillance or undue harassment. We have also been apprised of some
instances where the investigation agencies have leaked the video-recordings of
narcoanalysis interviews to media organisations. This is an especially worrisome
practice since the public distribution of these recordings can expose the subject
to undue social stigma and specific risks. It may even encourage acts of
vigilantism in addition to a trial by media.
We must remember that the law does provide for some restrictions on personal
liberty in the routine exercise of police powers. For instance, the CrPC
incorporates an elaborate scheme prescribing the powers of arrest, detention,
interrogation, search and seizure. A fundamental premise of the criminal justice
system is that the police and the judiciary are empowered to exercise a
reasonable degree of coercive powers. Hence, the provision that enables Courts
to order a person who is under arrest to undergo a medical examination also
provides for the use of force as is reasonably necessary for this purpose. It is
evident that the notion of personal liberty does not grant rights in the absolute
sense and the validity of restrictions placed on the same needs to be evaluated
on the basis of criterion such as fairness, non-arbitrariness, and reasonableness.
So far, the judicial understanding of privacy in our country has mostly stressed on
the protection of the body and physical spaces from intrusive actions by the
State. While the scheme of criminal procedure as well as evidence law mandates
interference with physical privacy through statutory provisions that enable arrest,
detention, search and seizure among others, the same cannot be the basis for
compelling a person to impart personal knowledge about a relevant fact. The
theory of interrelationship of rights mandates that the right against selfincrimination should also be read as a component of personal liberty under
Article 21. Hence, our understanding of the right to privacy should account for
its intersection with Article 20(3). Furthermore, the rule against involuntary
confessions as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872
seeks to serve both the objectives of reliability as well as voluntariness of
testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and
21 of the Constitution along with the principles of evidence law leads us to a clear
answer. We must recognise the importance of personal autonomy in aspects such
as the choice between remaining silent and speaking. An individuals decision to
make a statement is the product of a private choice and there should be no scope
for any other individual to interfere with such autonomy, especially in
circumstances where the person faces exposure to criminal charges or penalties.
In our considered opinion, the compulsory administration of the impugned
techniques violates the right against self-incrimination. This is because the

underlying rationale of the said right is to ensure the reliability as well as

voluntariness of statements that are admitted as evidence. This Court has
recognised that the protective scope of Article 20(3) extends to the investigative
stage in criminal cases and when read with Section 161(2) of the Code of
Criminal Procedure, 1973 it protects accused persons, suspects as well as
witnesses who are examined during an investigation. The test results cannot be
admitted in evidence if they have been obtained through the use of compulsion.
Article 20(3) protects an individuals choice between speaking and remaining
silent, irrespective of whether the subsequent testimony proves to be inculpatory
or exculpatory[25]. Article 20(3) aims to prevent the forcible conveyance of
personal knowledge that is relevant to the facts in issue. [26] The results
obtained from each of the impugned tests bear a testimonial character and they
cannot be categorised as material evidence.
We are also of the view that forcing an individual to undergo any of the impugned
techniques violates the standard of substantive due process which is required
for restraining personal liberty. Such a violation will occur irrespective of whether
these techniques are forcibly administered during the course of an investigation
or for any other purpose since the test results could also expose a person to
adverse consequences of a non-penal nature. The impugned techniques cannot
be read into the statutory provisions which enable medical examination during
investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of
the Code of Criminal Procedure, 1973. Such an expansive interpretation is not
feasible in light of the rule of ejusdem generis and the considerations which
govern the interpretation of statutes in relation to scientific advancements. We
have also elaborated how the compulsory administration of any of these
techniques is an unjustified intrusion into the mental privacy of an individual. It
would also amount to cruel, inhuman or degrading treatment with regard to the
language of evolving international human rights norms. Furthermore, placing
reliance on the results gathered from these techniques comes into conflict with
the right to fair trial. Invocations of a compelling public interest cannot justify
the dilution of constitutional rights such as the right against self-incrimination.
In light of these conclusions, we hold that no individual should be forcibly
subjected to any of the techniques in question, whether in the context of
investigation in criminal cases or otherwise. Doing so would amount to an
unwarranted intrusion into personal liberty. However, we do leave room for the
voluntary administration of the impugned techniques in the context of criminal
justice, provided that certain safeguards are in place. Even when the subject has
given consent to undergo any of these tests, the test results by themselves
cannot be admitted as evidence because the subject does not exercise conscious
control over the responses during the administration of the test. However, any
information or material that is subsequently discovered with the help of voluntary
administered test results can be admitted, in accordance with Section 27 of the
Evidence Act, 1872.
CASE ANALYSIS

The majority of the judgement was provided by K.G. Balakrishnan C.J.I. gives
huge emphasis to Article 20(3) of the constitution dealing majorly with the aspect
of self-incrimination. But the minority aspect i.e. Privacy and due process has not
seemed to have been given as important a position in this whole judgement
although it forms an integral and important part of it. The search for effective
aids to interrogation is probably as old as mans need to obtain information from
an uncooperative source and as persistent as his impatience to shortcut any
tortuous path. In the annals of police investigation, physical coercion has at times
been substituted for painstaking and time consuming inquiry in the belief that
direct methods produce quick results. The field of criminology has expanded
rapidly during the last few years, and the demand for supplemental methods of
detecting deception and improving the efficiency of interrogation have increased
concomitantly.
However the minority aspect covers basic elements of constitutionality like
privacy and due process and from the judgement we find that lesser emphasis
has been laid on these aspects. The author tends to agree and consent upon both
the contentions and the path taken to reach the rationale however a little more
emphasis of privacy in the judgement would have been really helpful in balancing
the reason. The reason being the interpretation of 20(3) has been time and time
again been challenged by several high court. The second reason being that the
grounds of privacy gets established in this case beyond reasonable doubt. The
judgement at its initial stage had covered how each of these test violate the
principles of Privacy. But in the end gets diverted towards self-incrimination.
Critical Analysis
The judgement begins with a full fledged description of the concerned different
kinds of test mentioned herein, their uses, and limitations and last but not the
least its standing in front of the eyes of law. Justice Balakrishnan in his judgement
has taken into reflected foreign precedents applicable to these tests before
reaching to a conclusion. The reason for using foreign cases is due to absence of
substantial case laws or statutes that expressly deal with this topic. Each of these
test were scrutinized in relation to its constitutionality in different constitutions
especially that of U.K. and U.S. courts which have persuasive value in the Indian
Courts. There were high court cases which had justified the use of such tests
however The Supreme Court rejected these arguments. The High Courts had used
various arguments to uphold the constitutionality of narcoanalysis and other tests
under Article 20(3). For example, the Karnataka High Court equated the
compulsion requirement of Article 20(3) with duress involving serious physical
harm or threat, and found that the mild pain from the administration of an
injection necessary to induce the narcoanalysis test did not reach the requisite
level of hurt to constitute compulsion.[27] Using a similarly narrow view of
compulsion, the Madras High Court found that because compulsion generally
means using physical or other so-called third degree methods of interrogation,

even though a subject may be forced to undergo narcoanalysis in the first place,
the statements made during the resulting tests themselves are voluntary.[28]
Further, the High Courts of Karnataka, Bombay and Delhi found that the
administration of narcoanalysis itself could not violate Article 20(3) because
statements could not be known to be incriminating until after the administration
of the test. However these judgements mentioned above were considered to be
too mechanical and baseless and as quoted given without application of mind
by the Supreme Court. It was landmark initiative by the bench to hold the tests of
this nature unconstitutional. It came off as major blow to investigating agencies,
when the Supreme Court held the use of narco analysis, brain-mapping and
polygraph tests on accused, suspects and witnesses without their consent as
unconstitutional and violation of the right to privacy.
The judges said: The compulsory administration of the impugned techniques
violates the right against self-incrimination. The test results cannot be admitted
in evidence if they have been obtained through the use of compulsion. Article 20
(3) of the Constitution [No person accused of any offence shall be compelled to
be a witness against himself] protects an individuals choice between speaking
and remaining silent, irrespective of whether the subsequent testimony proves to
be inculpatory or exculpatory. The Bench said: Article 20 (3) aims to prevent the
forcible conveyance of personal knowledge that is relevant to the facts in issue.
The results obtained from each of the impugned tests bear a testimonial
character and they cannot be categorised as material evidence. Further it was
notified in the judgement that In their considered opinion that subjecting a
person to the impugned techniques in an involuntary manner violates the
prescribed boundaries of privacy. The Bench held that if these techniques were
used compulsorily if would violate Article 20 (3). The Bench made it clear that
even when the subject had given consent to undergo any of these tests, the test
results by themselves could not be admitted as evidence because the subject
does not exercise conscious control over the responses during the administration
of the test. However, any information or material that is subsequently discovered
with the help of voluntary administered test results can be admitted, in
accordance with Section 27 of the Evidence Act.
In the Indian context, Article 20(3) should be construed with due regard for the
inter-relationship between rights, since this approach was recognised in Maneka
Gandhi v. Union of India[29]. Hence, the judges have examined the `right against
self-incrimination in respect of its relationship with the multiple dimensions of
`personal liberty under Article 21, which include guarantees such as the `right to
fair trial and `substantive due process. Undoubtedly, Article 20(3) has an
exalted status in our Constitution and questions about its meaning and scope
deserve thorough scrutiny. Section 161(1) of CrPC empowers the police officer
investigating a case to orally examine any person who is supposed to be
acquainted with the facts and circumstances of the case. It is to ensure the
citizens cooperation during the course of investigation, they cannot override the
constitutional protections given to accused persons. The scheme of the CrPC

itself acknowledges this hierarchy between constitutional and statutory

provisions in this regard. Not only does an accused person have the right to
refuse to answer any question that may lead to incrimination, there is also a rule
against adverse inferences being drawn from the fact of his/her silence. At the
trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of
the court to put questions to the accused so that the latter may explain any
circumstances appearing in the evidence against him. It lays down that the
accused shall not render himself or herself liable to punishment by refusing to
answer such questions, or by giving false answers to them. It is evident that
Section 161(2), CrPC enables a person to choose silence in response to
questioning by a police officer during the stage of investigation, and as per the
scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code,
adverse inferences cannot be drawn on account of the accused persons silence
during the trial stage.
The undermined aspect of Privacy
The second issue is whether the involuntary administration of these tests offends
certain rights that have been read into Article 21 by way of judicial precedents.
The `right against self-incrimination does not protect persons who may be
compelled to undergo the tests in the course of administrative proceedings or
any other proceedings which may result in civil liability. It is also conceivable that
a person who is forced to undergo these tests may not subsequently face
criminal charges. In this context, Article 20(3) will not apply in situations where
the test results could become the basis of non-penal consequences for the
subject such as custodial abuse, police surveillance and harassment among
others. In order to account for these possibilities, we must examine whether the
involuntary administration of any of these tests is compatible with the
constitutional guarantee of `substantive due process. The standard of
`substantive due process is of course the threshold for examining the validity of
all categories of governmental action that tend to infringe upon the idea of
`personal liberty.
In Maneka Gandhi v. Union of India[30], it was held that the right to privacy `is
an essential ingredient of personal liberty and that the right to `personal liberty
is `a right of an individual to be free from restrictions or encroachments on his
person, whether those restrictions or encroachments are directly imposed or
indirectly brought about by calculated measures.
The contentions before us have touched on aspects such as the `right to privacy
and the `right against cruel, inhuman and degrading treatment. It is also
structured around the right to fair trial which is an essential component of
`personal liberty.

There are several ways in which the involuntary administration of either of the
impugned tests could be viewed as a restraint on `personal liberty. The most
obvious indicator of restraint is the use of physical force to ensure that an
unwilling person is confined to the premises where the tests are to be conducted.
. In Peoples Union for Civil Liberties v. Union of India[31], it was held that the
unauthorised tapping of telephones by police personnel violated the `right to
privacy as contemplated under Article 21. However, it was not stated that
telephone-tapping by the police was absolutely prohibited, presumably because
the same may be necessary in some circumstances to prevent criminal acts and
in the course of investigation. Hence, such intrusive practices are permissible if
done under a proper legislative mandate that regulates their use.
The decision given by the U.S. Supreme Court in Rochin v. California[32],
recognised the threshold of `conduct that shocks the conscience for deciding
when the extraction of physical evidence offends the guarantee of `due process
of law. It was held that illegally breaking into the privacy of the petitioner, the
struggle to open his mouth and remove what was there, the forcible extraction of
his stomachs contents-this course of proceeding by agents of government to
obtain evidence is bound to offend even hardened sensibilities. They are methods
too close to the rack and the screw to permit of constitutional differentiation.
Furthermore, the drug-induced revelations or the substantive inferences drawn
from the measurement of the subjects physiological responses can be described
as an intrusion into the subjects mental privacy. It is also quite conceivable that
a person could make an incriminating statement on being threatened with the
prospective administration of any of these techniques. Conversely, a person who
has been forcibly subjected to these techniques could be confronted with the
results in a subsequent interrogation, thereby eliciting incriminating statements.
We must also account for circumstances where a person who undergoes the said
tests is subsequently exposed to harmful consequences, though not of a penal
nature. The test results could prompt investigators to engage in custodial abuse,
surveillance or undue harassment. We have also been apprised of some
instances where the investigation agencies have leaked the video-recordings of
narcoanalysis interviews to media organisations. This is an especially worrisome
practice since the public distribution of these recordings can expose the subject
to undue social stigma and specific risks. It may even encourage acts of
vigilantism in addition to a `trial by media.
Therefore, it is considered opinion that subjecting a person to the impugned
techniques in an involuntary manner violates the prescribed boundaries of
privacy. Forcible interference with a persons mental processes is not provided for
under any statute and it most certainly comes into conflict with the `right against
self-incrimination.

Honourable Supreme Court in D.K. Basu v. State of West Bengal[33], have

stressed upon the importance of preventing the `cruel, inhuman or degrading
treatment of any person who is taken into custody. We must remember that the
law does provide for some restrictions on `personal liberty in the routine exercise
of police powers. A fundamental premise of the criminal justice system is that the
police and the judiciary are empowered to exercise a reasonable degree of
coercive powers. It is evident that the notion of `personal liberty does not grant
rights in the absolute sense and the validity of restrictions placed on the same
needs to be evaluated on the basis of criterion such as `fairness, nonarbitrariness, and reasonableness.
The Supreme Court of Israel in Public Committee Against Torture in Israel v. State
of Israel[34], where it was held that the use of physical means (such as shaking
the suspect, sleep-deprivation and enforcing uncomfortable positions for
prolonged periods) during interrogation of terrorism suspects was illegal.
In respect of the present case, referring to the Universal Declaration of Human
Rights, International Covenant on Civil and Political Rights (ICCPR) and
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984, it was held by the Supreme Court that any person who is
forcibly subjected to the impugned tests in the environs of a forensic laboratory
or a hospital would be effectively in a custodial environment for the same. The
presumption of the person being in a custodial environment will apply
irrespective of whether he/she has been formally accused or is a suspect or a
witness. Even if there is no overbearing police presence, the fact of physical
confinement and the involuntary administration of the tests is sufficient to
constitute a custodial environment for the purpose of attracting Article 20(3) and
Article 21.
Limitations of tests in respect to privacy
Polygraph tests have several limitations and therefore a margin for errors. The
premise behind these tests is questionable because the measured changes in
physiological responses are not necessarily triggered by lying or deception.
Instead, they could be triggered by nervousness, anxiety, fear, confusion or other
emotions.
Furthermore, the physical conditions in the polygraph examination room can also
create distortions in the recorded responses. The test is best administered in
comfortable surroundings where there are no potential distractions for the
subject and complete privacy is maintained.

The mental state of the subject is also vital since a person in a state of
depression or hyperactivity is likely to offer highly disparate physiological
responses which could mislead the examiner.
In some cases the subject may have suffered from loss of memory in the
intervening time-period between the relevant act and the conduct of the test.
When the subject does not remember the facts in question, there will be no selfawareness of truth or deception and hence the recording of the physiological
responses will not be helpful.
Errors may also result from `memory-hardening, i.e. a process by which the
subject has created and consolidated false memories about a particular incident.
This commonly occurs in respect of recollections of traumatic events and the
subject may not be aware of the fact that he/she is lying.
It does not have an absolute success rate and there is always the possibility that
the subject will not reveal any relevant information. Some studies have shown
that most of the drug-induced revelations are not related to the relevant facts
and they are more likely to be in the nature of inconsequential information about
the subjects personal lives.
It takes great skill on part of the interrogators to extract and identify information
which could eventually prove to be useful. While some persons are able to retain
their ability to deceive even in the hypnotic state, others can become extremely
suggestible to questioning. This is especially worrying, since investigators who
are under pressure to deliver results could frame questions in a manner that
prompts incriminatory responses.
Subjects could also concoct fanciful stories in the course of the `hypnotic stage.
Since the responses of different individuals are bound to vary, there is no uniform
criteria for evaluating the efficacy of the `narcoanalysis technique.
Another significant limitation is that even if the tests demonstrate familiarity with
the material probes, there is no conclusive guidance about the actual nature of
the subjects involvement in the crime being investigated. For instance a bystander who witnessed a murder or robbery could potentially be implicated as an
accused if the test reveals that the said person was familiar with the information
related to the same.
Furthermore, in cases of amnesia or `memory-hardening on part of the subject,
the tests could be blatantly misleading. Even if the inferences drawn from the
`P300 wave test are used for corroborating other evidence, they could have a
material bearing on a finding of guilt or innocence despite being based on an
uncertain premise.[35]
We may conclude that the verdict of Supreme Court has finally settled all the
conflicts regarding the constitutionality of Narcoanalysis, Brain-Mapping, and
Polygraph Tests by prohibiting involuntary administration of such tests, holding
them to be cruel, inhuman and degrading treatment. It was further held that
Right of self-incrimination is available to a person both at investigation and trial

stage. Protection not only covers accused but suspects also, even witnesses. It is
a detailed judgement including the references of numerous foreign judgements,
providing with an excellent legal point of view on the validity of the impugned
scientific techniques, which must be appreciated.
Scope of unanswered questions
The judgement despite the remarkable decision and brilliant rationale behind the
same leaves some very obvious unanswered questions. The first and most
important is that what kinds of mandate will the judgment have on the
investigative bodies and how prudently will it be followed. The judgment has left
scope for these tests of this sort to be administered if it is done voluntarily but
that also leads to scope for problems too. . The Supreme Court left open the
possibility for abuse of such tests when it provided a narrow exception, almost as
an afterthought, namely that information indirectly garnered from a voluntary
administered test i.e. discovered with the help of information obtained from
such a test can be admitted as evidence.[36] While this exception is narrow in
the sense that it can apply only when a fully informed individual gives truly
voluntary consent to undergo any of the tests, the granting of the exception does
not harmonize with the Courts clearly stated belief that information obtained
even during a voluntarily administered test is not voluntarily given. The
exception, based on the assumption that voluntarily taken tests will be truly
voluntary, is problematic.
The power of the police to coerce suspects and witnesses into voluntarily doing
or not doing certain things is well-known. It is highly probable that the same
techniques will be applied to get suspects or witnesses to agree to
narcoanalysis and other tests, resulting in a mockery of the essence of the
Supreme Courts judgment. It is widely agreed, for example, that the D.K.
Basu[37] guidelines prescribing the treatment of persons in custody are
implemented mainly in the breach; they merely adorn signboards inside police
stations, a farcical, one-point compliance with Supreme Courts comprehensive
list of directives.
CONCLUSION
A decision no matter how well made is always subject to criticism just because
there is always scope of improvement. The same applies to the judgement of
Selvi v. State of Karnataka. Although it is one of the most trendsetting and
landmark judgement of its time but still when there is constitutionality and
democracy criticism is ought to come up. Moreover when it comes to judicial
decision there is always this scope open for critics to pool in their views. But
compared to others this is one of those few judgments where the critics might

find it difficult to find a lacunae. The judgement is perfect example of just and
neutral decision.
This limited exception for admitting into evidence is due to the principle that
fruits of the poisonous tree casts a shadow on the Courts otherwise
progressive judgment. This same principle has been applied to this present case
with just reasons.
Edited by Amoolya Khurana
[1] www.brainyquote.com
[2] Criminal Appeal 1267 of; 2004 2010(7) SCC 263
[3] 1964 SC 332
[4] People Union of Civil Liberties v. Union of India; AIR 1991 SC 207, 211
[5] AIR 1975 SC 1378
[6] 1994 SCC (6) 632
[7] AIR 1999 SC 495
[8] Supra 2
[9] AIR 2005 SC 186; Director of Revenue v. Mohammad Nissar Holia; (2008) 2
SCC 370
[10] Lyunman v. Illionois; (1963) 372 US 528; Commentary on the Constitution of
India by D.D. Basu
[11] Stefanelli v. Minard; (1952) 342 US 117
[12] Supra 9
[13] Supra 10

[14] Treigle v. Acme Homestead Association;(1936) 297 US 189

[15] Berman v. Parker;(1954) 348 US 26
[16] Supra note 11, at 10.
[17] A.I.R.1954 S.C. page 300
[18] A.I.R.1955 Cal 247
[19] A.I.R.1960 Cal32
[20] A.I.R. 1960 Cal318 (DB)
[21] Ram Chandra Ram Reddy v. Maharashtra, Criminal Writ Petition No. 1924 of
2003,; Sh. Shailender Sharma v. State, Crl. WP No. 532 of 2008
[22] Sh. Shailender Sharma v. State, Crl. WP No. 532 of 2008, at 37
[23] A.I R 1961 S.C.1808
[24] Ibid. at 169, 192
[25] The Constitution of India, 1950, Art.20 (3).
[26] In the case, Smt. Selvi & Ors. v. State of Karnataka, at 165, 223.
[27] Supra note 11, at 10.
[28] Dinesh Dalmia v. State, Crl. R.C. No. 259 of 2006 and Crl. M.P. Nos. 1518 and
1519 of 2006.
[29] (1978) 1 SCC 248
[30] AIR 1978 SC 597

[31] AIR 1997 SC 568

[32] 342 US 165 (1952)
[33] AIR 1997 SC 610
[34] H.C. 5100 / 94 (1999)
[35] For an overview of the limitations of these neuroscientific techniques, see:
John G. New, `If you could read my mind Implications of neurological evidence
for twenty-first century criminal jurisprudence, 29 Journal of Legal Medicine 179197 (April-June 2008)
[36] The concept of narcoanalysis in view of constitutional law and human rights
by sonakshi verma accessed on 17th July 2010 available at
http://www.rmlnlu.ac.in/content/sonakshi_verma.pdf
[37] DK Basu v State of West Bengal, (1997) 1 SCC 416, at 22.
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