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“THE JURISPRUDENCE SURROUNDING THE CONSTITUTIONAL RIGHT AGAINST SELF-

INCRIMINATION”

(Assignment submission towards the fulfilment of the Mid Term Assessment-I in the
subject of Constitutional Governance-I)

SUBMITTED TO: SUBMITTED BY

MRS. SAYANTANI BAGCHI SARA CHAUDHARY (T565)

ASSISTANT PROFESSOR, SARAH SINGH (T566)

FACULTY OF LAW,
NATIONAL LAW UNIVERSITY, JODHPUR SEMESTER - I

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(JULY – NOVEMBER, 2023)

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TABLE OF CONTENTS

Abstract ..................................................................................................................................... 2

I. INTRODUCTION - THE HISTORY AND ORIGIN OF RIGHT AGAINST

SELF-INCRIMINATION. ...................................................................................................... 3

II. RIGHT AGAINST SELF-INCRIMINATION IN OTHER COUNTRIES ............. 5

A. USA ............................................................................................................................. 5

B. BRITAIN ..................................................................................................................... 6

C. CANADA .................................................................................................................... 7

III. RIGHTS AGAINST SELF-INCRIMINATION PREVAILING IN INDIA............ 8

A. Article 20(3) Under The Indian Constitution .............................................................. 8

B. Right to Remain Silent ................................................................................................ 8

C. Section 161 of the Code of Criminal Procedure (CrPC): ............................................ 9

D. Case Laws Surrounding Article 20(3) ......................................................................... 9

E. Recent Developments in Jurisprudence Surrounding the Constitutional Right

Against Self-Incrimination in India ..................................................................................... 11

IV. “SCIENTIFIC EXAMINATION” OF THE ACCUSED WHETHER

VIOLATIVE OF ARTICLE 20(3) ....................................................................................... 14

A. DNA TESTS ............................................................................................................. 14

B. NARCO-ANALYSIS TEST ..................................................................................... 16

V. CONCLUSION ........................................................................................................... 18

Lack of Laws relating to Scientific Tests ............................................................................ 18

Suggestions .......................................................................................................................... 19
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ABSTRACT

The constitutional right against self-incrimination takes its origin from the legal maxim
―Nemo Tenetur Seipsum Accusare‖ which means ―No man, not even the accused himself
can be compelled to answer any question, which may tend to prove him guilty of a crime, he
has been alleged against‖. Many foreign jurisdictions like the United States, Britain and
Canada have laws which protect an individual from testifying against his own self. In India,
article 20(3) of the Indian Constitution specifically provides that, “No person accused of any
offence shall be compelled to be a witness against himself”. There are three ingredients of
article 20(3) a. The person accused of an offence, b. Compulsion to be a witness and c.
Compulsion resulting in giving evidence against himself. Section 161 of the Criminal
Procedure Code deals with the examination of witnesses by the police, and this provision
allows the police or gives them authority to interrogate the witnesses whenever they need to
record the statements of the witnesses. The principle of right to remain silent which is an
integral facet of the broader right against self-incrimination empowers an individual accused
of an offence to choose not to provide any statement or testimony during criminal
proceedings. High profile criminal investigations in recent times have witnessed the
emergence of new investigative tools in India –Deception Detection Tests (DDT). Being
touted as an alternative to the 'third degree' interrogation methods, DDT has opened a
Pandora's Box of legal and ethical questions exacerbated by the Supreme Court's refusal to
comment on the legality of such investigative techniques.

Key Words: Self-Incrimination, Article 20(3), Section 161 CrPC, Evidence Act, Miranda
Rights, Deception Detection Test, DNA Tests, Narco-Analysis, Polygraph test, Brain –
mapping
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I. INTRODUCTION - THE HISTORY AND ORIGIN OF RIGHT AGAINST SELF-

INCRIMINATION.

The Right against Self-Incrimination is constitutional right which is guaranteed by Article

20(3) of the Constitution of India, 19491. This is a basic concept which originated from a
legal maxim i.e. ―Nemo Tenetur Seipsum Accusare‖ which means that ―No man, not even
the accused himself can be compelled to answer any question, which may tend to prove him
guilty of a crime, he has been alleged against‖ or in exact sense, ―No one is bound to
incriminate or accuse himself.‖ This provision was borrowed by the fathers of the Indian
Constitution from the Fifth Amendment of American Constitution which can be traced
back to British System of Criminal Jurisprudence. It states that–―No person shall be
compelled in any criminal case to be a witness against himself‖ This privilege was first
recognized in the mid-18th centuries along with other doctrines such as ―Burden of Proof
upon the Prosecution‖ and ―Proving guilt beyond reasonable doubt.‖ This equipped the
accused with some tools to defend himself against the State, minimizing the disadvantages
faced by the defendants.2 The privilege against self‐incrimination was invented by judges in
1645 to curb the excesses of their colleagues in the Court of Star Chamber. Since then, it has
become embedded in the common Law with no specific legislative imprimatur.3

The privilege of not to be compelled to give evidence against oneself occupy an honorable
place in the history of Anglo-American law. Blackstone regarded the maxim as representative
of the development of English jurisprudence4 and modem authors have continued to bestow
praise on the privilege as "one of the great landmarks in man's struggle to make himself
civilized.

1
Article 20(3) of the Constitution of India, 1949
2
Gautam Swarup, Narco Analysis and Article 20(3) of the Constitution of India: Blending the Much Awaited
(2009), http://works.bepress.com/gautam_swarup/2
3
Breslin, J. (1996), "Self‐incrimination: Recent Developments", Journal of Financial Crime, Vol. 4 No. 1, pp.
47-51. https://doi.org/10.1108/eb025754

4
I W. Blackstone, Commentaries on the Laws of England *68.
 4

Regarding the origins of the privilege, the continental blend of Roman and canon law known
as the ius commune had long recognized the privilege against self-incrimination and English
ecclesiastical courts first considered arguments for the privilege based on this body of law.5

IN the Indian Constitution, this provision has been adopted by referring into the principles
laid down by English and American jurisprudence. It is a ‗Fundamental Right‘ and it
safeguards a person or a corporation who are accused of an offence. Every person who is
alleged to commit an offence has a right to remain silence and no compulsion to give
evidence which may later turn to be against him. In India section 161(2) of CrPC6 also
protects the person who is accused from forcefully providing a statement in his interrogation.

This project work seeks to explore the rights protecting individuals from self-incriminating
against themselves in India as well as foreign jurisdictions like the United States of America,
Britain and Canada. It also shall explore Section 161 of CrPC, the right to remain silent and
scientific tests violating Article 20(3). Lastly it ventures into the scientific tests or Deception
Detection Tests (DDT) built to establish truth in criminal cases. We conclude the project by
suggesting ways by which such DDT do not infringe upon the rights of individual by going
against the constitutional protection of testifying against one‘s own self.

5
Richard H. Helmholz, Origins of the Privilege against Self-Incrimination:The Role of the European Ius
Commune, University of Chicago Law School
6
Section 161 in The Code Of Criminal Procedure, 1973
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II. RIGHT AGAINST SELF-INCRIMINATION IN OTHER COUNTRIES

A. USA
The Fifth Amendment of the US Constitution provides inter alia:

No person … shall be compelled in any criminal case, to be a witness against himself.

This provision under the Fifth Amendment was added in the constitution in 1791. By judicial
interpretation, the provision has been given a very wide connotation. The privilege against
self-incrimination has been held to apply to witness as well as parties in proceedings- civil
and criminal. This was held in the case of United States v Hubbell7 . It covers documentary
evidence and oral evidence, and extends to all disclosures including answers which by
themselves support a criminal conviction or furnish a link in the chain of evidence needed for
a conviction.

By the latter part of the eighteenth century, English and early American courts had
determined that coerced confessions were potentially excludable from admission at trial
because they were untrustworthy. For much of the nineteenth century, the Supreme Court
invoked unreliability as the basis for excluding such confessions without mentioning the
constitutional bar against self-incrimination.8

MIRANDA RIGHT –

In 1966, in the landmark US judgement of Miranda v. Arizona9, the 5-6 Supreme Court
decision ruled that an arrested individual is entitled to rights against self-incrimination and to
an attorney under the 5th and 6th Amendments of the United States Constitution. Miranda v.
Arizona (1966) culminated in the famed ―Miranda rights‖ requirement during arrests

The Four Miranda Warnings

1. You have the right to remain silent.

2. Anything you say can and will be used against you in a court of law.

3. You have the right to an attorney.

7
United States v. Hubbell, 530 U.S. 27 (2000)
8
John Wigmore, A Treatise on the Anglo-American System of Evidence § 823 (1940); Developments in the
Law—Confessions, 79 Harv. L. Rev. 935, 954–59 (1966)
9
Miranda v. Arizona, 384 U.S. 436 (1966).
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4. If you cannot afford an attorney, one will be appointed for you.10

The Supreme Court ruled that detained criminal suspects, prior to police questioning, must be
informed of their constitutional right to an attorney and against self-incrimination. decision
written by Chief Justice Earl Warren, ruled that the prosecution could not introduce Miranda's
confession as evidence in a criminal trial because the police had failed to first inform Miranda
of his right to an attorney and against self-incrimination. The police duty to give these
warnings is compelled by the Constitution's Fifth Amendment, which gives a criminal suspect
the right to refuse "to be a witness against himself," and Sixth Amendment, which guarantees
criminal defendants the right to an attorney. The Court maintained that the defendant's right
against self-incrimination has long been part of Anglo-American law as a means to equalize
the vulnerability inherent in being detained. Such a position, unchecked, can often lead to
government abuse.11

B. BRITAIN
The privilege against self-incrimination and its roots are traceable to events in English legal
history which continue to play a role in defining the scope of the doctrine in each country.
What is referred to in the United States as the privilege against self-incrimination is more
frequently labelled the right to silence in Great Britain. The self-incrimination privilege in
Great Britain usually refers to the right of witnesses to refuse to answer self-incriminatory
questions.

Despite the common roots, similar general content, and equivalent importance, there are
important differences between British and American views of the self-incrimination privilege
which are particularly instructive. Because the Americn privilege is constitutionalized in the
fifth amendment, reform tends to focus upon expanding or contracting the scope of the
controlling decisions of the United States Supreme Court. The British privilege, in contrast, is
a common law principle and therefore, in theory at least, more readily subject to change. It
has evolved in a distinctly British form and, due to its common law foundations, is subject to
re-evaluation even with respect to its fundamental premises.12

10
A Latinx Resource Guide: Civil Rights Cases and Events in the United States, https://guides.loc.gov/latinx-
civil-rights/miranda-v-
arizona#:~:text=Arizona%20(1966)%20ruled%20that%20an,Miranda%20rights%E2%80%9D%20requirement
%20during%20arrests.
11
Thirteen PBS, https://www.thirteen.org/wnet/supremecourt/rights/landmark_miranda.html
12
Royal Commission on Criminal Procedure, Report, Cmnd. 8092 (1981)
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The rule was described in Blunt v Park Lane Hotel Ltd [1942] as being ‗the rule… that no
one is bound to answer any question if the answer thereto would, in the opinion of the judge,
have a tendency to expose [him] to any criminal charge or penalty, or forfeiture which the
judge regards as reasonably likely to be referred or sued for‘ and further that the rule ‗applies
to oral evidence, interrogatories and the discovery of documents.‘

It is best put-forth in the case of Saunders v. United Kingdom13 whereby it was opined that
in order to avoid miscarriage of justice, protection of accused is necessary against the
improper compulsion of the concerned authorities. In a legal context, the court emphasized
that the right not to incriminate oneself extends to admissions of wrongdoing or statements
that may not directly incriminate. Even seemingly non-incriminating statements obtained
under compulsion, like exculpatory remarks or factual information, could be used against the
accused during criminal proceedings to challenge their credibility, contradict previous
statements, or cast doubt on their testimony.

C. CANADA
In Canadian common law history, witnesses once had the right to decline testifying if it
would incriminate themselves. However, the Canada Evidence Act, specifically section 5(1),
abolished this absolute common law privilege and compelled witnesses to give testimony. In
return, section 5(2) provided witnesses with immunity from the use of their testimony against
them in future proceedings, except in cases of perjury or impeachment. Nevertheless, these
provisions of the Canada Evidence Act have been superseded by the immunities outlined in
sections 13 and 7 of the Canadian Charter of Rights and Freedoms. Section 13 of the
Charter Act protects the person who is accused of an offence in Canada. Section 11 of the
Charter provides that one cannot be compelled to be a witness in a proceeding against
oneself. Section 11(c)14 states: Any person charged with an offence has the right ... not to be
compelled to be a witness in proceedings against that person in respect of the offence ...
Moreover ‗Right to silence‘ is protected under section 715 and 11(c) of the Charter.

13
Saunders v. United Kingdom, 23 EHRR 313 (1997)
14
Section 11, Canadian Charter of Rights and Freedoms, Constitution Act, 1982
15
Section 7, Canadian Charter of Rights and Freedoms, Constitution Act, 1982
 8

III. RIGHTS AGAINST SELF-INCRIMINATION PREVAILING IN INDIA

A. ARTICLE 20(3) UNDER THE INDIAN CONSTITUTION

The rights against self-incrimination in India, enshrined in Article 20(3) of the Indian
Constitution, are a fundamental safeguard that ensures fairness and justice within the legal
system. These rights can be broken down into three essential elements:

The Person Accused of an Offence: Article 20(3) applies to individuals who are accused of
a crime. This means that the protection against self-incrimination becomes active when a
person faces criminal charges, ensuring their safeguard from coercive tactics that may
infringe upon this right.

Compulsion to Be a Witness: The crux of this right lies in preventing the coercion of
individuals to become witnesses against themselves. It acts as a shield against any form of
compulsion or pressure that forces an accused person to testify or provide evidence that could
incriminate them in a crime. This aspect is vital in preserving the integrity of criminal
proceedings.

Compulsion Resulting in Giving Evidence Against Oneself: For Article 20(3) to be

invoked, the compulsion or coercion must lead individuals to provide evidence that has the
potential to incriminate them. It is not merely about being a witness; it's about being
compelled to incriminate oneself through that testimony.

B. RIGHT TO REMAIN SILENT

The right to remain silent is an integral facet of the broader right against self-incrimination. It
empowers individuals accused of an offence to choose not to provide any statement or
testimony during criminal proceedings, thereby safeguarding themselves against self-
incrimination. This right highlights that silence should not be construed as an admission of
guilt. The right to remain silent serves as a potent protection for individuals during police
interrogations, trials, or any stage of a criminal investigation. It prevents coercive tactics that
might otherwise force individuals to provide self-incriminating information against their will.
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C. SECTION 161 OF THE CODE OF CRIMINAL PROCEDURE (CRPC):

Section 161 of the CrPC plays a pivotal role in the examination of witnesses by the police
during the course of an investigation. It is instrumental in upholding the rights of individuals,
including their right against self-incrimination. The key aspects of Section 161 are:

Power to Examine Witnesses: Section 161 grants the police the authority to examine
witnesses during an investigation. This includes the examination of both the accused and
other individuals who may possess knowledge of the case.

Voluntary Statements: Significantly, Section 161 mandates that statements made to the police
during such examinations must be voluntary. This aligns with the principle of safeguarding
against self-incrimination, ensuring that any coerced or forced statements are inadmissible in
court.

Right to Legal Representation: Individuals examined under Section 161 CrPC have the right
to legal representation. This further assures the protection of their rights, including the right
to remain silent and the right against self-incrimination.

Inadmissibility of Forced Statements: Statements obtained under duress or compulsion during

an examination under Section 161 CrPC is typically considered inadmissible as evidence in
court. This resonates with the broader principle of safeguarding against self-incrimination,
ensuring that individuals are not compelled to incriminate themselves during investigations or
legal proceedings.

D. CASE LAWS SURROUNDING ARTICLE 20(3)

In the case of M.P. Sharma v. Satish Chandra (1954) 16 the Indian Supreme Court clarified
that the protection against self-incrimination primarily covers testimonial compulsion. The
court emphasized that individuals cannot be compelled to provide oral or written testimony
against themselves. However, this protection did not extend to the production of documents
and materials. This decision has sparked considerable debate and prompted further legal
developments, especially in cases involving compelled self-incrimination during police
interrogations.

16
M.P. Sharma v. Satish Chandra 1954 SCR 1077
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Kharak Singh v. State of Uttar Pradesh (1963)17 delved deeper into Article 20(3) and
emphasized that the right against self-incrimination includes the accused person's right to
remain silent and not be compelled to give evidence against them. This ruling expanded the
scope of the right while maintaining certain limitations, especially regarding custodial
interrogations and the use of physical force.
18
State of Bombay v. Suresh 2000 , the court further solidified the principles underlying
Article 20(3) and its interplay with the right to remain silent. It clarified that the right against
self-incrimination safeguards individuals from compelled self-incrimination during the
investigative stage. This means that the protection extends to the period immediately
following an accusation of an offense.
19
The case of Selvi & Ors. v. State of Karnataka (2010 took the protection against self-
incrimination to a new level by examining the admissibility of scientific tests like
narcoanalysis, brain mapping, and lie-detector tests. The Supreme Court held that compelling
a person to undergo these tests without their consent violates Article 20(3) and the right to
remain silent. Such tests, when administered under duress, result in evidence obtained under
compulsion, infringing upon the right against self-incrimination. This decision reaffirmed the
importance of voluntary statements and consent, reinforcing the idea that individuals have
the right to remain silent and not be compelled to provide self-incriminating evidence.

In the context of custodial violence and abuse, the case of D.K. Basu v. State of West
Bengal20 holds significance as the Supreme Court recognised custodial violence and police
brutality. It stated that custodial violence is an attack on the dignity of human beings. In this
case, the Supreme Court noted down 11 guidelines to be followed while making an arrest.
These contain various rights available to every person under arrest-

1. The police personnel must bear name tags with their designations while making
arrests or conducting an interrogation.
2. Arrest memo to be prepared and copy of it to be attested by a family member or a
respectable person of the locality. It must also be signed by the arrestee and must
include the date and time of the arrest.

17
Kharak Singh v. State of Uttar Pradesh 1963 AIR 1295,
18
State of Bombay v. Suresh (2000 2000) 1 SCC 471
19
Selvi & Ors. v. State of Karnataka AIR 2010 SC 1974
20
D.K. Basu v. State of West Bengal 1997 1 SCC 416
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3. In cases where a relative or family member of the arrestee is not present during the
arrest, he is entitled to inform one friend or relative or other person having an interest
in his welfare, of the arrest and location of detention.
4. Within 8-12 hours, the relative or friend of the arrestee must be informed of the time,
place of arrest, and venue of custody if they live outside the district or town.
5. Person arrested to be made aware of his right to inform someone of his arrest.
6. An entry to be made in the diary of the place of detention, name of the friend who has
been informed, and names and particulars of police officials in whose custody the
arrestee is.
7. Major and minor injuries to be recorded at the time of arrest and to be signed by both
the arrestee and the police officer. A copy of it is to be provided to the arrestee.
8. Medical examination by a doctor every 48 hours during the arrestee‘s detention.
9. Copies of all documents are to be sent to the Magistrate.
10. Arrestees may be permitted to meet their lawyer during interrogation.
11. A police control room to be provided in all districts and arrests to be intimated within
12 hours to the control room.

E. RECENT DEVELOPMENTS IN JURISPRUDENCE SURROUNDING THE

CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION IN INDIA

In recent years, the jurisprudence surrounding this constitutional right has evolved
significantly, adapting to contemporary challenges and emphasizing its critical role in
safeguarding citizens' rights.

Evolution of Jurisprudence

While the core principles of the right against self-incrimination have remained steadfast,
recent jurisprudential developments have brought about a more nuanced understanding of its
applicability and scope. The judiciary's evolving interpretations have sought to address
modern-day complexities while upholding the fundamental principles of justice.

The case of Lalithakumari v. State of Uttar Pradesh21 has been a pivotal moment in the
recent evolution of self-incrimination jurisprudence in India. This case was primarily

21
Lalithakumari v. State of Uttar Pradesh 2014 2 SCC 1
 12

concerned with custodial interrogations and the admissibility of statements made during such
interrogations. The Supreme Court's judgment in this case reinforced the fundamental
importance of voluntary statements and marked a significant development in the
jurisprudence surrounding the right against self-incrimination. The Supreme Court ruled that
custodial confessions would be admissible only if they were made voluntarily, without any
form of coercion, inducement, or force. The Court recognized the inherent vulnerability of
individuals in police custody and the potential for abuse and coercion during interrogations.
To protect the right against self-incrimination, it became imperative to ensure that statements
made in such circumstances were not the result of compulsion.

This judgment extended the protection against self-incrimination to the vulnerable setting of
custodial interrogations, emphasizing that individuals in police custody must be free from any
undue pressure to provide self-incriminating statements. It reinforced the principle that no
person should be compelled to become a witness against themselves, even in the high-stakes
environment of criminal investigations.

Coming back to the case of Selvi & Ors v State of Karnataka22, the issue of consent was
given a lot of emphasis in the context of investigative developments in technology in the
form of ‗Narcoanalysis‘, Polygraph Examination (PE) and the Brain Electrical Activation
Profile (BEAP). The issue raised by the petitioners was regarding the involuntary use of such
scientifically advanced techniques in the name of investigation and the fine line between
investigation and self-incrimination. 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
invoking the guarantee of 'substantive due process' as an extension of 'personal liberty'
protected by Article 21. 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.

The significance of these two cases lies in their broadening of the scope and applicability of
the right against self-incrimination. Lalithakumari's emphasis on voluntary statements in
custodial interrogations underscored the need to protect individuals from coercion and abuse
during police investigations. Selvi‘s case on the other hand re-affirms the right to mental
privacy and consent with the right against self-incrimination the Court therefore ordered that
no tests could be administered unless by consent of the accused, obtained before a Judicial

22
Selvi & Ors v State of Karnataka AIR 2010 SC 1974
 13

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 statement. The test would be conducted
by an independent agency, in the presence of a lawyer, and would be duly recorded.

Application of these developments can be seen in the 2012 Nirbhaya case23.

The trial brought the issue of self-incrimination into sharp focus. The court emphasized on
three major issues -

Adherence to Voluntariness – the judgement underscored the importance given to adhering

to the principle of voluntariness when obtaining statements from accused individuals. The
allegations of coercion and torture by the accused highlighted the need for a rigorous
examination of the circumstances under which statements were made. This reaffirmed that
self-incriminating statements must be voluntary and not the result of force or duress.

Robust Protections Against Self-Incrimination: It brought into focus the vulnerability of

individuals in custody and the potential for abuse by law enforcement officials. The legal
system began to recognize the importance of safeguarding the accused's right against self-
incrimination at all stages of the criminal justice process, including the investigative phase.

Ensuring Fairness. It prompted a closer examination of the treatment of accused individuals

in custody and the necessity of preventing misconduct by law enforcement. Courts became
more vigilant in scrutinizing the admissibility of statements obtained under duress, further
strengthening the jurisprudence on self-incrimination.

23
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1
 14

IV. “SCIENTIFIC EXAMINATION” OF THE ACCUSED WHETHER

VIOLATIVE OF ARTICLE 20(3)

Forensic science has made a significant impact in assisting justice in criminal investigations
and various other violent crimes such as rape, murder, and homicide. The primary purpose of
this discipline is to give direction to law enforcement, the judiciary, and the general public in
order to ensure a fair and impartial prosecution. The courts use this information to make
important connections and determine whether the defendant is guilty or innocent. However,
the criminal justice system remains one of its most valuable assets. Also, because crime has
existed from the dawn of time, so have the tactics employed to identify the perpetrator. In
India, keeping the fingerprints of the guilty was standard practice until elaborate technologies
were developed. We've come a long way since then in terms of analyzing DNA and other
Narco-Analysis.24 Also known as Deception Detection Tests (DDT) polygraph, narco-
analysis and brain-mapping have important clinical, scientific, ethical and legal
implications. They have contested that it is safer than ‗third degree methods‘ used by some
investigators. Here, the claim is that, by using these so called, ―scientific procedures‖ in fact-
finding, it will directly help the investigating agencies to gather evidences, and thereby
increase the rate of prosecution of the guilty and the rate of acquittal of the innocent.
Recently, these methods are being promoted as more accurate and best to none, without
convincing evidence.25

The three major requirements to be met for the scientific evidence to be admissible in the
court of law are validity, reliability and legality which depend upon the method used and
consistency in the accuracy of the results procured thereafter. Scientific Examination methods
have proved to be effective in establishing the truth in criminal cases. But whether or not it
violates Article 20(3) is the question.

A. DNA TESTS
DNA (Deoxyribose Nucleic Acid is abbreviated as DNA). It's an organic material contained
in every living cell that offers each person a unique genetic blueprint. The admissibility of

24
SK Pathak, Forensic Science's Impact: DNA tests and Narco-Analysis evidentiary relevance, CPJ College of
Higher Studies & School of Law, Delhi, India, Jus Corpus Law Journal
25
SB Math, Supreme Court judgment on polygraph, narco-analysis & brain-mapping: A boon or a bane, Indian
J Med Res. 2011 Jul; 134(1): 4–7.
 15

DNA evidence in court is always reliant on its completeness and accuracy collection,
preservation, and recording, which might persuade the court that the evidence presented is
trustworthy. In India, there is no explicit legislation that may offer precise directions to
investigative agencies and courts, as well as the method to be followed in instances requiring
DNA as evidence. Furthermore, the Indian Evidence Act of 187226 and the Code of
Criminal Procedure of 197327 include no special provisions for dealing with science and
technology concerns. Due to the lack of such a provision, an investigation officer has difficult
time gathering evidence that requires contemporary mechanisms to show the accused person's
guilty. A police officer may obtain the help of a medical practitioner in good faith for the
purpose of an inquiry under Section 53 of the Code of Criminal Procedure 197328.
However, it does not allow a complainant to collect blood, sperm, or other evidence in order
to file criminal charges against the accused. The CrPC (Amendment) Act, 200529, added
two new provisions to the CrPC, allowing the investigating officer to take DNA samples
from the bodies of the accused and victim with the assistance of a medical practitioner. These
provisions allow a medical practitioner to examine a person suspected of rape, as well as a
medical check of the rape victim.30

In the Pantangi Balarama Venkata Ganesh v State of Andhra Pradesh 31 case, the
admissibility of DNA evidence in a rape case was questioned and the court established that
DNA evidence is generally admissible in court but subject to judge's discretion for its
acceptance. In the Kathi Kalu Oghad case it was clarified that giving a body extraction does
not amount to self-incrimination. The case focused on section 139 of the Indian Evidence
Act32 and concluded that self-incrimination pertains to revealing knowledge through oral
testimony, and physical body extractions do not fall within the realm of self-incrimination.

It is argued many a times that DNA test have challenged functional rights of an individual
and stands violative of ‗Right to Privacy‘ and ‗Right against Self-incrimination‘ but on the
same it is very vital to note that to access the truth in criminal cases, DNA test may be the
best option in terms of accuracy. The question whether DNA test is violative of Right against
Self-incrimination came up before the Hon‘ble Supreme Court in the case of Kharak Singh

26
Indian Evidence Act, 1872
27
Code of Criminal Procedure, 1973
28
Code of Criminal Procedure, 1973, S 53
29
Code of Criminal Procedure (Amendment) Act, 2005
30
Arindam Datta, ‗Forensic Evidence: The Legal Scenario‘ (Legal Service India)
https://www.legalserviceindia.com/article/l153-Forensic-Evidence.html accessed 17 January 2022
31
Pantangi Balarama Venkata Ganesh v State of Andhra Pradesh [2003] (1) ALD Cri 789
32
Indian Evidence Act, 1872, s 139
 16

33
v. State of U.P. and Govind Singh v. State of M.P.34 wherein it was observed that
Fundamental Rights as under Part III of the Constitution are subject to various restrictions
due to public influences and are not absolute. Thereby, it does not violate Article 20(3).
However, there have been many different opinions of the court regarding the same. In the
case where the parentage of the child was not known and DNA test was required to produce
better results, the court opined that it is not violative of Fundamental Rights.

But what the court highlighted are the few core indispensable angles which need to be
observed upon for improved process of these tests:

 Suitable procedure/amendments for DNA tests need to be inserted in CrPC.

 Prompt & immediate measures to generate a reliable data base of DNA basis of which
may be regional considerations.
 The main aim should be to provide fair and speedy justice.
 The need is to maintain the equilibrium between the rights guaranteed to the accused
and procedure for such tests.

Legal and basic rights of individuals such as the "Right to Privacy" and "Right against Self-
Incrimination‖ have been seriously harmed by DNA technology. The Indian Constitution's
Right to Life and Personal Liberty, or Article 2135, includes the Right against Self-
Incrimination," have been seriously harmed by DNA technology. And it is for this reason that
courts are often hesitant to accept DNA-based evidence. The truth is that today's Indian
criminal forensic investigations and the policing system are riddled with inefficiencies, old
out-dated rules and practices, a lack of professionalism and even integrity, and an inability of
a top-down approach to planning and execution, which is critical in the current situation.

B. NARCO-ANALYSIS TEST
Narco analysis is derived from a Greek word NARKE, which means anesthesia or trance,
and was used to describe a diagnostic psychotherapeutic technique that uses psychotropic
drugs to induce a stupor suspension or great diminution of sensibility, a state in which mental
elements with strongly associated effects come to the surface and can be exploited by the
therapist (or investigating agency).36 The goal of the Narco analysis exam is to eliminate a
person's ability to lie through his imagination. However, once the individual enters the

33
Supra Note 17
34
Govind Singh v. State of M.P., AIR 1975 SC 1378
35
Article 21 of the Constitution of India, 1949
36
Supra Note 16
 17

subconscious level, this imagination is neutralized. As a result, it is assumed that the

individual is incapable of lying and that whatever he says is genuine.37

Only a few democratic countries, most notably India, still utilize narco analysis. n. In India,
narcotics analysis is increasingly being used in investigations, court hearings, and
laboratories. It does, however, create significant scientific, legal, and ethical concerns. Before
the practice spreads further, these issues must be addressed immediately. Narco analysis has
become an increasingly frequent word in India, possibly frighteningly so.38

When it comes to the constitutional status of these tests, fingerprinting and ballistic reports
are to be deemed constitutional, but when it comes to the conclusiveness of narco analysis
and brain mapping in terms of their constitutional status, it is still in dispute. The most
pressing constitutional problem is the implementation of the narco test in respect to the
accused, which involves a breach of his constitutional rights under Articles 20(3) and 21.

In State of Gujarat v Anirudh Singh39 the Supreme Court that it is the statutory duty of
every witness who's had knowledge of a crime to aid the state in giving evidence, and it
appears justified that if a person refuses to provide information that is necessary for
investigation purposes, an adverse impression must be made against them, and this would not
violate Article 20. (3). In this approach, the court struck a compromise between constitutional
protection and narco-analysis. In the landmark judgement of Selvi v. Karnataka40 it was
held that, ―no individual should be forcibly subjected to any of the techniques namely Narco-
analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test.
Doing so would amount to an unwarranted intrusion into personal liberty. 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
Act41, 1872.‖ The court further highlighted the importance of consent of the accused before
administration of such tests. It notably opined that administration of various inputs in the
body of the accused though is not a physical threat but amounts to ―mental compulsion,‖ after
effect of which would lead to giving of statements or evidence by the accused but it would
not be by his own will or voluntarily.

37
H. Pricilla & Arya R., ‗Polygraph and Narco Test in Indian Evidence Law‘ (2018) 120 (1) IJPAM 125
accessed 17 January 2022
38
Subhojyoti Acharya, ‗Is Narco Analysis a Reliable Science? – Present Legal Scenario in India‘ (Legal Service
India) accessed 17 January 2022
39
State of Gujarat v Anirudh Singh & Anr AIR 1997, SC 2780
40
Supra Note 19
41
Indian Evidence Act, 1872, S 27
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V. CONCLUSION

It is pivotal to strike a sense of balance between the rights available to the accused and the
interests of victims as well as the state for the assurance of justice. It is the duty of the State
to assure their citizens that their rights are protected and to ensure that no individual would
get an unfair trial. Law has always been an active practice as it changes agreeing to the latest
trends of the society and principles. However, it must be kept intact that it shall not be against
the basic fundamental principles and good of the society at large. The Right as enshrined
under Article 20(3) prima facie preserves the interests of the person accused of an offence but
as a fundamental principle it also preserves the interests of the State so as to maintain law and
order in the society. Self-incrimination in itself is a very broad principle and for its effective
use the Judiciary has to understand the ethical, scientific, technological aspects balancing
them with the legal umbrella.

LACK OF LAWS RELATING TO SCIENTIFIC TESTS

Today, crimes are being subject to very sophisticated and contemporary techniques to
perpetrate crimes. Therefore, the traditional approach of investigating and interviewing
criminals will not be effective for finding a solution, necessitating the use of fresh methods
like polygraphs, brain mapping, and narco-analysis. The Indian Legislature has given
recognition to scientific tools of investigation like narco-analysis in the form of the recent
amendment to Section 53 of the Code of Criminal Procedure, in 2005. However, as has been
highlighted in the model, there are many prerequisites for narco analysis to become an
effective tool of investigation. The Code of Criminal Procedure in its present form does not
provide for these prerequisites especially that of informed consent. In fact no provision in the
Code of Criminal Procedure necessitates the consent of the accused before an investigation.
The Indian Evidence Act, 1872 is entirely blank regarding the use of such scientific
methodology in the Narco-Analysis Test. We strongly advocate that there is urgent need for
the application of forensic science in criminal justice system but there must be a clear policy
stand on such tests at they put basic rights of privacy at stake. Subjecting an individual to
narcoanalysis without his consent will surely be undermining his/her individual rights.
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SUGGESTIONS
Medical and forensic evidence is widely acknowledged as playing a critical role in assisting
courts of law in reaching reasonable findings. As a result, competent medical practitioners
should be encouraged to engage in medicolegal work, while the courtroom environment
should be welcoming to medical witnesses. When it comes to the outcome of a case, this is
critical because if good specialists fail to appear in court, less objective professionals will fill
the hole, influencing justice. Different organizations have recognized the necessity to include
more and more specialists in expert testimony. For criminal investigations, narco-analysis
and DNA testing have shown to be useful and helpful technology that has a significant
impact on both the innocent and the guilty, speeding up the process of justice. This criterion
should not be utilized in all situations, but only when the interests of society as a whole are at
stake. To replace the brutal third-degree approach, more refined and sophisticated
questioning procedures are required.

We agree with the Supreme Court‘s judgment on involuntary DDTs where it held that it has
no place in the judicial process. Contemporary DDT needs to undergo rigorous research in
normative and pathological populations. Premature application of these technologies outside
research settings should be resisted. The vulnerability of the techniques to countermeasures
also needs to be explored. It is also important to know the sensitivity and specificity of these
tests. There should be standard operating guidelines for conducting DDT. The recent
Supreme Court judgment on DDT is admirable from the scientific, human rights, ethical,
legal and constitutional perspectives.

Law is a living process and hence, the laws of a country should evolve according to changing
needs and demands of the society it seeks to protect, foster and nurture. The criminal justice
system in India just like other legal systems should embrace and imbibe developments and
advances that take place in science as long as they do not violate fundamental legal principles
and serve the good of the society.
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