Y/AUT

SELVI & ORS. VS.

OM O STATE OF KARNATAKA
N

N
O

OM
Y/AUT

Y/ AUT
OM

AIR 2010 SC 1974, (2010) 7 SCC 263

O
N

N
OM O
Y/AUT

2010
Case Status NOT Neuro-scientific methods constitute
OVERRULED testimonial compulsion and violate an
accused person's right against self-
incrimination under Article 20(3), and their
Case Type CRIMINAL right to life and personal liberty under Article
APPEAL 21 of the Constitution. Drug induced revela-
tions and responses are an intrusion into the
mental privacy of the subject and forcible
Constitutional ARTICLE extraction of testimonial responses was not
Provision(s)
21 * provided for under any statute and could not
be a reasonable exercise of policing functions.

Bench
Strength 3
JUDGES
1 opinion by
Justice K.G. Balakrishnan on behalf of
Chief Justice R.V. Raveendran,
Justice J.M. Panchal and himself.
Number of
Opinion(s)
1/0
OPINIONS DISSENT
“We must recognise the importance of personal autonomy
in aspects such as the choice between remaining silent
and speaking. An individual's 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.”

T
he Supreme Court in this case consid-
ered the constitutionality of various
evidence gathering techniques includ-
ing narcoanalysis, BEAP (Brain Electrical Acti-
vation Profile) or ‘brain mapping’, and poly-
graph tests. The Court ruled that the use of such
neuroscientific investigative techniques consti-
tuted testimonial compulsion and violated an
accused person’s right against self-incrimina-
tion under Article 20(3), and their right to life
and personal liberty under Article 21 of the
Constitution.
The Court held that the protection against
self-incrimination under Article 20(3) of the
Constitution would have to be read considering
the multiple dimensions of personal liberty
under Article 21 such as the right to a fair trial
and substantive due process. It also held that
this would be applicable to the accused,
suspects and witnesses, and would not be
confined to the courtroom, but would be appli-
cable in all cases where the charge may end in
a prosecution.
The Court, after tracing the jurisprudence of the
right to privacy in India discussed the impor-
tance of mental privacy and the choice to speak
or stay silent, as well as their intersection with
personal autonomy as aspects of the right to
privacy. The Court observed that the right to
privacy under Article 21 should account for
interaction with Article 20(3), the right against
self-incrimination. The Court further held that
drug induced revelations and measurement of
physiological responses would amount to an
intrusion into the mental privacy of the subject
and that forcible extraction of testimonial
responses was not provided for under any
statute and could not be a reasonable exercise
of policing functions. The Court therefore
ordered that these tests could not be adminis-
tered without the valid consent of the accused.

1

Facts
In this case, the Supreme Court allowed a
special leave petition in the context of cases
where objections were raised where the
accused, suspects and witnesses in the investi-
gation were subjected to neuro-scientific tests
without their consent. The Court considered
the constitutionality of the usage of neuro-sci-
entific tests to gather evidence, including
narcoanalysis, BEAP or ‘brain mapping’, and
polygraph tests. The polygraph test measures
the physiological responses including respira-
tion, blood pressure, pulse and galvanic skin
resistance to measure lying or deception. The
narcoanalysis test involves the intravenous
administration of the drug sodium pentothal,
which causes a hypnotic trance allowing a
subject to become less inhibited. The BEAP
measures activity in the brain in response to
selected stimuli, to determine if the subject is
familiar with certain information.
Issues
A) Whether the involuntary administration of
the impugned techniques violated the ‘right
against self-incrimination’ enumerated in
Article 20(3) of the Constitution; and
B) Whether the involuntary administration of
the impugned techniques was a reaso-
nable restriction on ‘personal liberty’ as
understood in the context of Article 21 of
the Constitution.
Arguments
The Petitioners submitted that the involuntary
administration of neuro-scientific techniques
violated the 'right against self-incrimination'
under Article 20(3) for those compelled to use
them. The Petitioners raised arguments invok-
ing the guarantee of 'substantive due process'
as an extension of 'personal liberty' protected
by Article 21. The Petitioners also argued that
the ambit of Article 21 includes a right against
cruel, inhuman or degrading treatment, and
that the involuntary administration of the
impugned techniques would violate such
rights. Finally, they also raised the issue of the
test subjects’ right to both physical and mental
privacy, and argued that the techniques in
question would violate the same.
In relation to the tests themselves, the Petition-
ers argued that the tests were not scientifically
valid but were only confirmatory and that
evidence gathered through them could not be
relied upon. They placed reliance on empirical
studies which cast doubt on the reliability of
evidence obtained through these mechanisms.
The Respondents argued that usage of such
tests was important for extracting information
which could help the investigating agencies
prevent criminal activities and gather evidence.
They also argued that administering the tests
did not cause any bodily harm and that the
information was used only for investigation
and not as evidence during the trial stage.
2
 Decision
The Court first assessed in detail the evolution
and specific uses of the impugned techniques,
including their usage within the criminal
justice system, foreign jurisprudence regar-
ding their usage, and the limitations of
these techniques.
The Court then analysed the right against
self-incrimination, and held that the compulso-
ry administration of neuroscientific tests
amounted to testimonial compulsion and
violated the rule against self-incrimination
guaranteed under Article 20(3). The Court held
that in addition to the standard under Article
20(3), the compulsory administration of such
neuroscientific tests would also have to meet
the standard of 'substantive due process' for
placing restraints on personal liberty. The Court
noted that the purpose of the right against self
incrimination was to ensure that testimony
considered during trial was reliable, since
involuntary statements were more likely to be
inaccurate, while also violating the dignity and
integrity of the person.
The Court stated that “(t)he interrelationship
between the 'right against self- incrimination'
and the 'right to fair trial' has been recognised
in most jurisdictions as well as international
human rights instruments”. In India, Maneka
Gandhi vs. Union of India ((1978) 1 SCC 248) held
while considering Article 20(3), that the right
against self-incrimination should be construed
with due regard for the inter-relationship
between rights, namely the various dimensions
of the right to personal liberty under Article 21,
such as the right to fair trial and substantive
due process.
3
The Court also reaffirmed the decision of M.P.
Sharma vs. Satish Chandra ((1954] SCR 1077), in
holding that the right against testimonial com-
pulsion under Article 20(3) was not confined to
the courtroom, but would apply to all persons
against whom a charge, which could end in
prosecution, had been levelled. It clarified that
the right against self-incrimination protects
persons who have been formally accused, those
who are examined as suspects in criminal cases,
and witnesses who apprehend that their
answers could expose them to criminal charges
in an ongoing investigation or even in cases
other than the one being investigated.
The Court further noted from the M.P. Sharma
case that the act of being a witness was not
restricted only to cases of oral testimony but all
volitional acts. The Court also considered the
test laid down in State of Bombay vs. Kathi Kalu
Oghad & Others, ([1962] 3 SCR 10) which suggest-
ed that “imparting knowledge in respect of
relevant fact by means of oral statements or
statements in writing, by a person who has
personal knowledge of the facts to be communi-
cated to a court or to a person holding an enqui-
ry or investigation” would touch the right
under Article 20(3). The Court finally held that
the results of involuntary usage of neuroscien-
tific techniques would amount to testimonial
responses for the purpose of invoking the right
under Article 20(3).
In the context of privacy specifically, the Court
held that while laws of evidence could be used
for interference with physical privacy, they
could not form the basis for compelling a
person “to impart personal knowledge about a
relevant fact”. The Court looked into the inter-
relationship of rights to read the right against
self-incrimination as a component of 'personal
liberty' under Article 21. It consequently
observed that the right to privacy would also
intersect with Article 20(3), especially in respect
to a person's autonomy to choose between
speaking or remaining silent. The Court opined
that the use of such techniques in an involun-
tary manner would violate the individual
privacy.
The Court traced the history of the right to
privacy, starting from the case of MP Sharma,
which noted that the Indian Constitution did
not explicitly include a 'right to privacy' in a
manner akin to the Fourth Amendment of the
U.S. Constitution and thus upheld the validity
of search warrants, which were issued for docu-
ments in a case of misappropriation and embez-
zlement. Similar issues were discussed in the
case of Kharak Singh vs. State of Uttar Pradesh (AIR
1963 SC 1295), where the Court considered the
validity of police regulations authorizing the
police to maintain lists of 'history-sheeters' and
conduct surveillance on them. While the major-
ity opinion held that these regulations did not
violate personal liberty, except for those which
permitted domiciliary visits, Justice S. Rao in
his minority opinion 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 restric-
tions or encroachments on his person, whether
those restrictions or encroachments are directly
imposed or indirectly brought about by calcu-
lated measures”. The Court also reviewed other
seminal cases developing the right to privacy,
including Govind vs. State of Madhya Pradesh
((1975) 2 SCC 148), R. Raj Gopal vs. State of Tamil
Nadu ((1994) 6 SCC 632) and People's Union for
Civil Liberties vs. Union of India (AIR 1997 SC 568).
In examining the right to privacy, the Court
made reference to the case of Sharda vs. Dharam-
pal ((2003) 4 SCC 493). In this case, a civil court
was allowed to mandate a medical test which
was considered necessary for ascertaining the
mental condition of one of the parties. The case
of Sharda vs. Dharampal also surveyed the cases
mentioned above, holding that a person's right
to privacy could be curtailed in light of compet-
ing interests. The Court however differentiated
this from the present facts, focusing on the
distinction between testimonial acts and physi-
cal evidence; being a civil case, Sharda vs.
Dharampal did not discuss Article 20(3) of
the Constitution.
The Court held that while the understanding of
privacy was primarily based on the protection
of the body and physical spaces from intrusive
actions by the State, the right to privacy should
account for its intersection with Article 20(3).
Subjecting a person to the impugned tech-
niques was held to be a violation of the
prescribed boundaries of privacy. It further
held that even in a case where the individual
does not face criminal charges, such tests being
involuntarily administered would still violate a
person’s right to liberty under Article 21, as
such administration would constitute cruel,
inhuman and degrading treatment.
The Court therefore ordered that no tests could
be administered unless by consent of the
accused, obtained before a Judicial Magistrate
in the presence of their lawyer. The statement
made would also have the status of a statement
made to the police and not a confessional state-
ment. The test would be conducted by an inde-
pendent agency, in the presence of a lawyer,
and would be duly recorded.