Semester-V

SUBJECT- LAW OF EVIDENCE (2BL542)

CASE ANALYSIS OF SELVI V. STATE OF KARNATAKA

AIR 2010 SC 1974, (2010) 7 SCC 263

Submitted To: Ms. Shivani Mehta,

Assistant Professor of Law, ILNU Ahmedabad

Submitted by: Divyanshi Singhai

Roll No: 20BAL022
Case Name: Selvi V. State of Karnataka

Citation: AIR 2010 SC 1974, (2010) 7 SCC 263

FACTS OF THE CASE

The first batch of criminal appeals were filed in 2004 by Smt. Selvi and others. Subsequent
appeals were filed in 2005, 2006, 2007, and 2010, and on May 5, 2010, the Supreme Court's
honourable bench took them all together. With 256 pages, the judgement is lengthy. With regard
to cases where people who are the accused, suspects, or witnesses in an investigation have been
subjected to these tests without their agreement, complaints have been raised in the current batch
of criminal appeals. These actions have been defended by pointing out the significance of
gathering information that could assist the investigating agency in both preventing criminal
activity in the future and in situations where it is challenging to acquire evidence through
conventional methods. Additionally, it has been encouraged that using these techniques does not
result in any physical injury and that the information obtained would only be utilised to support
investigation efforts and not be allowed as evidence during the trial phase. Improvements in fact-
finding during the investigation stage, it is said, will subsequently help to raise both the
prosecution and acquittal rates. Another argument is that these scientific approaches are a more
gentle substitute for the unfortunate and reportedly pervasive use of "third degree methods" by
investigators.
ISSUES OF CONTENTION
 Whether narcoanalysis, brain mapping, FMRI and polygraph test could be used as a
constitutionally valid method of gathering evidence.
 Whether this 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.
LEGAL ASPECTS INVOLVED & THEIR HISTORY
DUE PROCESS
By evaluating the method used to gather the evidence, one can confirm that the entire due
process procedure has complied with basic fairness. A fundamental fairness principle states that
an accused person cannot be found guilty based on a coerced or unwilling confession. This idea
has been extended to the idea that evidence gained through coercion or other methods that
"shock the conscience" is not accepted. Installing cameras in someone's bedroom and keeping an
extended eye on them is not a legal way to gather evidence; in fact, it violates their right to
privacy under Article 21. A fundamental element of a free society is the provision of due
process, which protects one's privacy in his own house from arbitrary action. Police power may
only be used to establish rules, but such rules cannot be capricious or harsh. In other words, the
use of police force must be constrained by constitutional provisions such as due process.
SELF-INCRIMINATION
There is some background information regarding Article 20(3) of the Constitution here as well.
Compulsion is a synonym for duress, which can be either physical or mental. Any non-voluntary
affirmative action by an accused person implicating themselves would be considered coercion
under Article 20 (3), which would violate the guarantee set forth by the founding fathers in the
Indian Constitution. Despite the Supreme Court's decision in the case of M.P. Sharma v. Satish
Chandra and others, which was decided by a Bench of 8 Judges of the Supreme Court of India,
which at that time had a strength of 8 Judges only, the phrase "to be a witness" has been the
subject of judicial decisions and has been interpreted even differently up until the year 1961.
Any signature, writing, or seal that has been admitted or proved to the court's satisfaction to have
been written or made by the person by whom it purports to have been made or signed may be
compared with one that is to be proven, even if that signature, writing, or seal has not been
produced or proven for any other reason. The court has the authority to order everyone in
attendance to write down any information for the purpose of comparing it with what is allegedly
written by that individual.
ARGUMENTS
The petitioners argued that the involuntary use of neuroscientific procedures breached Article
20(3)'s prohibition against "self-incrimination" for individuals who were forced to utilise them.
The petitioners made claims citing the Article 21-protected "personal liberty" as an extension of
the principle of "substantive due process." Additionally, the petitioners claimed that the scope of
Article 21 covers a prohibition against cruel, inhuman, or degrading treatment and that the forced
use of the contested techniques would infringe on such rights. Last but not least, they argued that
the techniques in question would violate the test subjects' right to their own physical and mental
privacy.
The Petitioners stated that the tests themselves were not scientifically valid, but rather just
confirmatory, and that the evidence obtained by them could not be trusted. They relied on
empirical investigations that questioned the validity of the proof produced by these methods.
The Respondents made the case that using these tests was crucial for obtaining data that could
aid the investigating agencies in gathering evidence and preventing criminal activity. They
further claimed that there was no physical harm caused by administering the tests and that the
data was solely used for research, not as evidence at the trial stage.
DECISION BY THE COURT
The Court began by carefully examining the development and particular applications of the
contested techniques, including their use in the criminal justice system, foreign legal precedent
concerning their application, and the techniques' limitations.
The Court then considered the privilege against self-incrimination, concluding that requiring the
administration of neuroscientific testing in violation of Article 20's prohibition on testimonial
coercion (3). The Court decided that in addition to meeting the requirements of Article 20(3), the
mandatory use of such neuroscientific testing would also need to pass the test of "substantive due
process" when limiting personal freedom. The court stated that involuntarily made remarks were
more likely to be false while also being a violation of the person's dignity and integrity, hence
the right against self-incrimination was meant to ensure that testimony considered during trial
was reliable.
The Court noted that "most states as well as international human rights agreements have
recognised the link between the 'right against self-incrimination' and the 'right to fair trial'." In
India, the Maneka Gandhi v. Union of India decision held that when interpreting Article 20(3),
the right against self-incrimination should be interpreted with due consideration for how different
aspects of the right to personal liberty under Article 21—such as the right to a fair trial and
substantive due process—interact with one another.
In addition, the Court upheld the 1954 Supreme Court ruling in M.P. Sharma v. Satish Chandra,
which held that everyone who was the subject of a charge that potentially result in prosecution
was covered by the protection against testimonial compulsion under Article 20(3). It was made
clear that those who have been formally charged, those who are questioned as suspects in
criminal cases, and witnesses who believe that their answers could subject them to criminal
charges in an ongoing investigation or even in cases unrelated to the one being investigated are
all protected by the privilege against self-incrimination.
The court additionally emphasised that the M.P. Sharma case demonstrated that being a witness
did not just apply to situations involving oral testimony but to all voluntary conduct. The Court
also took into account the standard established in the case State of Bombay vs. Kathi Kalu
Oghad & Others, which stated 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 communicated to a court or to a person holding an enquiry or investigation," would affect the
right under Article 20(3). In the end, the Court determined that the outcomes of the involuntary
application of neuroscientific procedures would constitute testimonial evidence for the purposes
of exercising an Article 20(3).
The Court ruled that while laws of evidence could be used to violate someone's physical privacy,
they could not be used as the justification for ordering someone to "impart personal information
about a significant fact." The Court considered how rights interact in order to interpret the
prohibition against self-incrimination as a part of "personal liberty" under Article 21. As a result,
it was noted that Article 20(3) and the right to privacy would also come into conflict, particularly
with regard to a person's autonomy to choose to speak or keep silent. According to the Court,
using such methods against one's will would be against their right to privacy.
In order to uphold the legitimacy of search warrants that were issued for documents in a case of
misappropriation and embezzlement, the Court traced the development of the right to privacy
beginning with the case of MP Sharma, which noted that the Indian Constitution did not
explicitly include a "right to privacy" in a manner similar to the Fourth Amendment of the U.S.
Constitution. In the case of Kharak Singh v. State of Uttar Pradesh (AIR 1963 SC 1295), where
the Court debated the legality of police laws allowing the police to keep a list of "history-
sheeters" and undertake surveillance on them, similar arguments were raised. In his minority
opinion, Justice S. Rao stated 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 imposed." The majority opinion stated that these regulations did
not violate personal liberty, with the exception of those that permitted domiciliary visits.
The Sharda v. Dharampal case was brought up by the Court as it examined the right to privacy.
In this case, a civil court was permitted to order a medical examination that was thought to be
required for determining the mental state of one of the parties. In addition to reviewing the
aforementioned cases, the Sharda v. Dharampal case held that a person's right to privacy could
be restricted in the face of competing interests. Sharda v. Dharampal was a civil case, hence the
Court did not address Article 20(3) of the Constitution; instead, it focused on the distinction
between testimonial acts and physical evidence to distinguish this from the current realities.
The Court ruled that while the protection of one's body and physical places from intrusive state
acts was the primary focus of the concept of privacy, the right to privacy should also take into
account how Article 20 may be affected (3). It was determined that subjecting a person to the
contested tactics violated their right to privacy. Furthermore, it was decided that even if no
criminal charges were brought against the subject, having such tests administered involuntarily
would still be against Article 21's guarantee of the right to liberty because it would amount to
cruel, inhumane, and degrading treatment.
Therefore, the Court ruled that no tests may be carried out without the accused's consent, which
had to be sought in front of a judicial magistrate while they were represented by counsel. The
statement would not be considered a confession but rather a statement made to the police. An
outside agency would administer the test while a lawyer was present, and it would be properly
documented.
CRITICAL ANALYSIS
The judgement opens with a thorough explanation of the relevant types of tests discussed here,
their applications and restrictions, and last but not least, their legal standing. Before coming to a
decision, Justice Balakrishnan considered international precedents that were relevant to these
tests in his judgement. The absence of significant case law or statutes that specifically address
this subject is the reason for using foreign cases. Each of these tests was examined in light of the
constitutionality of various constitutions, particularly those of the U.K. and U.S. courts, which
are regarded as authoritative by Indian courts. There have been high court decisions that
supported the employment of such tests, but the Supreme Court has rejected these justifications.
The High Courts had relied on a number of defences to uphold the constitutionality of drug tests
and other Article 20 requirements (3). For instance, the Karnataka High Court determined that
the mild pain from the injection administration required to induce the narcoanalysis test did not
reach the necessary level of hurt to constitute compulsion. The court equated the compulsion
requirement of Article 20(3) with "duress" involving serious physical harm or threat.
Using a similarly constrained definition of "compulsion," the Madras High Court determined that
even though a subject may have been coerced into undergoing narcoanalysis in the first place,
the statements made during the ensuing tests are voluntary because, in general, "compulsion"
refers to the use of physical or other so-called third-degree methods of interrogation. [28] The
High Courts in Karnataka, Bombay, and Delhi further determined that the administration of the
narcoanalysis test itself could not be in violation of Article 20(3) because statements could not be
known to be incriminating until after the test had been conducted. However, the Supreme Court
deemed the aforementioned rulings to be "issued without application of mind" and "too
mechanical and unfounded."
A police officer conducting an investigation is permitted by Section 161(1) of the Criminal
Procedure Code to interview anyone who is ostensibly knowledgeable about the facts and
circumstances of the case. They cannot override the constitutional rights provided to accused
persons in order to ensure the citizens' participation during the course of the investigation. In this
regard, the structure of the CrPC itself recognises the hierarchy between constitutional and
legislative requirements. An accused individual not only has the right to decline any question
that could be used against them, but there is also a law prohibiting unfair conclusions from being
made based on their silence. The court's ability to examine the accused during the trial stage in
order for him to explain any circumstances that emerge in the evidence against him is severely
constrained by Section 313(3) of the CrPC. It stipulates that the accused may not subject
themselves to penalty by refusing to respond to such inquiries or by providing untruthful
responses. It is clear that Section 161(2) of the Criminal Procedure Code gives a person the
option to remain silent when a police officer question them during the investigative stage, and
under the provisions of Section 313(3) and Proviso (b) to Section 315(1) of the same code,
adverse inferences cannot be made due to the accused person's silence during the investigation
stage.
CONCLUSION
Even the best decisions are always open to criticism since there is always room for growth. The
Selvi v. State of Karnataka ruling is no different. Even if it was one of the most groundbreaking
and trend-setting decisions of its era, criticism should still be voiced when it comes to
constitutionality and democracy. Additionally, there is always room for critics to join forces and
voice their opinions when it comes to judicial decisions. However, compared to other judgments,
this is one of the few where the detractors might have a hard time finding a flaw. The verdict is a
perfect illustration of a fair and impartial judgment.