Smt Selvi v.

State of Karnataka- Different Jurists

thoughts on Right against Self Incrimination
(Project for Legal Theory and Judicial Process)

Introduction
This paper is an analysis of landmark Judgment “Smt. Selvi v. State of
Karnataka” and the laws involved in the case. This paper is divided into three
major segments: - the First part of the paper deals with the facts of the case and
the judgment given along with the rights which falls under this case. The second
segment of the paper further deals with the human and fundamental rights which
are involved in the case and those are mainly The Right against self-
incrimination, right to privacy or personal liberty and substantive due process
and different jurists approach on those rights. The paper also talks about the
inhuman, degrading and forceful treatment by investigating authorities towards
accused. Lastly the paper ends with the concluding remarks given by the author
on the judgment by applying the jurist approach in this case and how does this
judgmet aims to keep the morality and humanity above all.
FACTS OF THE CASE
“Smt Selvi v. State of Karnataka”
Selvi's daughter Kavita had married Shivakumar of a different caste against the
wishes of her family. Shivakumar was brutally killed in 2004, and Selvi and two
others became the suspects. Since the prosecution's case depended entirely on
Circumstantial evidence, it sought the court's permission to conduct polygraph
and brain-mapping tests on the three persons. The court granted permission and
the tests were conducted. When the results of the polygraph test indicated signs
of deception, the prosecution sought the court's permission to perform narco
analysis on the three persons. The magistrate directed the three to undergo narco
analysis. All of them challenged this decision in the Karnataka High Court, but
failed to get relief. They then went in appeal to the Supreme Court. The Supreme
Court, in a remarkable shift from its minimalist approach, held that compulsory
brain-mapping and polygraph tests and Narco analysis were in violation of
Articles 20(3) and 21 of the Constitution.

According to Article 20(3) of the Constitution of India “No person accused of

any offence shall be compelled to be a witness against himself.” This is
considered to be a fundamental right of the accused person.

Privacy
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.

Right against torture and mental privacy.

Silence is a non-communicative aspect of a human being. A person tries to wear

a calm composure in silence. To reduce oneself into silence a person avoids
communication to lower his mental activity. External concepts and ideas come
through communication put a strain on the mind of a person. Silence helps a
person to remain his being and promotes personal strength of conviction and
regaining confidence. Right to silence is a right of human being human.
Mental privacy is an extension of the right to silence stemming from the cardinal
right against self-incrimination. Mental privacy is also an aspect of the right to
privacy1.

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. An extension of
this principle has led to the holding that evidence obtained through force or by
means which ‘shock the conscience’ shall be inadmissible2.

History: - The Origin of Pleading the Fifth

The right against self-incrimination is rooted in the Puritans' through

ecclesiastical Courts who sought testimony from those involved in religious
activities through torture and coercion by administering ex officio oath
invariably making those who remained silent be pronounced guilty in 17th
century England. They often were coerced or tortured into confessing their
religious affiliation and were considered guilty if they remained silent. English
law granted its citizens the right against self-incrimination in the mid-1600s,
when a revolution established greater parliamentary power.

1
JOURNAL OF CRITICAL REVIEWS VOL 7, ISSUE 19, 2020
2
https://www.lawctopus.com/academike/critical-analysis-selvi-v-state-karnataka/#_edn12
The genesis of this right came from the Latin maxim
‘Nemonteneturseipsumaccusare’ which implies that ‘No man is obliged to
accuse himself’3.

DIFFERENT JURISTS APPROACH

Natural Law School & John Locke

The right against self-incrimination comes from the famous jurist John Locke’s
Bill of Right’s. He is liberal who believes in attaining utmost freedom for all
individuals as he belonged to the Natural Law School which identifies a law as
good if it has some amount of moral considerations attached to it as its intrinsic
quality, it has a normative approach to law and answers what law ought to be
and not take law at its face value of law as it is. Locke identified this procedural
right as a natural right that is all laws are subject to certain moral laws.

His major considerations was to safeguard the right to life and according to him
the right against self-incrimination can be considered as a facet of right to life.
This right provides those accused in a criminal suit the freedom or the right to
remain silent.

St. Thomas Acquinas

Another famous jurist from Natural Law school and had a similar opinion as he
believed that a law should appeal to higher laws or be consistent with the divine
laws made by God. Such a law, which protects human life, is indeed a law which
is in consistence with the laws made by the Almighty.

3 th
Law Commission of India, 180 Report, May, 2002, available
athttp://lawcommissionofindia.nic.in/reports/180rpt.pdf
Thomas Hobbes

Another political philosopher who has given much significance to this Right is
Thomas Hobbes. Hobbes in his work Leviathan discusses the aspects of the
social contract entered by people formulating a State wherein the Sovereign has
the power of Monopoly of Violence upon its subjects.4Hobbes had a belief that
under no circumstances an individual is to defy the State, but he had a very rigid
stand on self-preservation, he believed that you can, and you ought to defy the
State and the laws only if it is threatening your right to preserve yourself.

Hohfeld

According to Hohfield this right of self-preservation is not a right but as a

Privilege, A privilege is one's freedom from the right or claim of another,5this
implies that the right conferred by art. 20(3) is a right which gives a privilege to
an accused to remain silent during a trial or investigation whereas the State has
no claim on the confession made by him. As right to silence is a privilege and
not a right, it “only lasts till no affirmative claim is made against it.”6

Salmond

Professor Salmond on the other hand believed that Hohfeldian idea of Privilege
wasn’t a privilege per se but it is liberty of the accused or a mere absence of
duty of the accused towards the state hence the state cannot claim that it has a
right to which the accused has a corresponding duty.

4
Thomas Hobbes, Leviathan

5
W. HOHFELD, SOME FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL
REASONING 23YALE,L.J. 16,28–59(1913)

6
Rock v. Ireland [1997] 3 IR 484, “the right to silence is not absolute but is subject to public order and morality
He supported Jeremy Bentham who belongs from the Positive School and
believes in the analytical approach and not the normative approach towards laws
and takes all laws as it is. He was extremely critical of the right to remain silent
as he believed that ‘Innocence never takes advantage of it; innocence claims
the right of speaking, as guilt invokes the privilege of silence.’7 Bentham also
said that actions are morally right if they tend to promote happiness or pleasure
(and morally wrong if they tend to promote unhappiness or pain) among all
those affected by them. By this he meant the Consequentialism theory and in this
case giving if giving a self-incriminating remark is good for the greater good
then one should do that.

Salmond believed that the interrogation of the accused is an important aspect in

terms of a criminal procedure and this rule or right is ‘destitute of any rational
foundation’8. The most problematic aspect of this right of self-preservation is the
presumption of silence as guilt by the Courts. It is inevitable for the judges to
have any other opinion as the very fact that an accused has refused to answer a
question on grounds of self- incrimination, it has to be due to something which
is unfavourable to his case and therefore, there are no provisions which would
prevent the Courts from drawing adverse judgments from the silence of the
accused.9

7
Glanville Williams The Proof of Guilt (1963)

8
Salmond on Jurisprudence 11th ed by Glanville Williams (1957)

9
PREKSHA MALIK ADVERSE INFERENCE FROM SILENCE: AN URGENT NEED IN RAPE CASES,
SSRN, 2009
APPLYING THE ABOVEMENTIONED THORIES IN THE
PRESENT CASE

In the present case of Selvi v. state of Karnataka question which mainly arises
are as follows :-

Firstly is it morally right to compel a person to become a witness in his own

case- if we speak morally and ethically one must not be compelled to be witness
to his own case as right to save yourself is a basic fundamental right which is
given to each and every individual by the nature itself. This right against self-
incrimination is correct on the moral grounds as one has a right to save his own
life.

Next question which arises in this case was whether the use of torture and
related techniques justifiable for the greater good?

This question can be answered into two folds the first is the use of torture
techniques by the authorities to derive information from an accused. Now
according to the deontological ethics by Immanuel kant, morality of an action
should be based on whether that action itself is right or wrong under a series of
rules, rather than based on the consequences of the action. In the present
scenario this means that though it may be for the greater good, that is for the
courts to arrive at a proper conclusion but still these techniques are wrong in its
nature and therefore using such techniques cannot be justifiable for the greater
good.

Another fold to this question can be explained from the Bentham’s concept of
utilitarianism which is an ethical theory holding that actions are morally right if
they tend to promote happiness or pleasure and morally wrong if they tend to
promote unhappiness or pain. Now if we use it in the present case though it is
for the greater good but it creates pain in the life of the accused henceforth using
of such techniques is considered morally wrong.

Third question which arises in this case is that is violating one men’s
fundamental rights to possibly protect the society at large justifiable?

After reading the thoughts of various jurist on the rights of an individual and
what moral sanctity and importance is given to those natural and fundamental
rights even for the greater good of the society at large violating those rights is
not justifiable. Thomas Hobbes who was a staunch supporter of resistance
against punishment as the primary reason of entering into a social contract is for
self-preservation and by testifying against yourself you destroy the main purpose
of it even if it is for the greater good.

Last question which arises here is that whether the right to remain silent is
Justifiable?

Salmond did not support this legal right given to an accused. As he believed that
the criminal laws aim is to punish the convict and by providing such a right to
the accused one is going against the fundamentals of criminal law and he found
this right very irrational. And which is true to an extent because if there an
accused has done nothing wrong then he would never remail silent and here this
silence speaks more than thousand words. But sometimes to hide certain
personal information one has to keep silence and they have complete right to do
so as these are certain rights given by the nature itself and not by a state or an
individual.

Hence from the above discussion it is clear that both political thinkers and jurists
have binary view on this right against self-incrimination. But what is even more
clear is that since this right is conferred on the basis of natural right of an
individual the Indian interpretation of this right as it has been very liberal.
Hence, I would like to conclude that this law is a just law which is in
consonance with the laws of nature. The purpose of this law is being utilized in
its true sense by the judiciary and the jurisprudential underpinning of this right is
at par with the way in which it is being interpreted. In view of the constitutional
provisions against self-incrimination the Courts have required the prosecution to
prove guilt beyond reasonable doubt. The case draws a distinction between
“voluntary” and “compelled” witness, an accused cannot be compelled to be
witness against himself even if it is for the greater good. The case also explains
due process model, which holds that even for the detection of crime, there are
lines that the State cannot cross which can be seen by the concept of deontology.
Therefore after going in the depth of the case and the rights involved it is clear
that the judgment given here gives utmost importance to the natural laws and
morality attached to those laws. But the only wrong with case is that it is not
applicable for the greater good or the society at large.