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Selvi v. State of Karnataka (2010) : case analysis

Selvi v. State of Karnataka (2010) : case analysis

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This article was written by Yash Jain and further updated by Sai Shriya Potla. The article provides a detailed analysis of the landmark judgement of Selvi v. State of Karnataka (2010). The article further elaborates on the facts of the case, issues, arguments by petitioner and respondent, the rationale behind the judgement and critical analysis of the case.

It has become appallingly obvious that our technology has exceeded our humanity. Albert Einstein

We live in a world which is ever-growing, and with the changing times, the needs of people also change, making growth an unavoidable factor. One of the most important and significant developments is the growth in technological advancements. Now, since every coin has two sides, technological advancements too have their pros and cons. 

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One such technological advancement that we are concerned about is the use of scientific techniques such as Narcoanalysis (NARCO), polygraph examination (PE) and the Brain Electrical Activation Profile (BEAP) test. Nowadays, these impugned techniques are being used in various fields, including in the criminal justice system. The impugned techniques help the investigating authorities to get relevant information from the accused. However, the issue of consent comes into the picture. The accused is involuntarily administered these tests, raising a whole lot of questions regarding the violation of human rights and fundamental rights. The landmark judgement of Smt. Selvi and Ors v. State of Karnataka (2010) addresses important legal issues with respect to the involuntary administration of these techniques and also takes a clear stance on what should be done and taken care of while using these techniques. This article critically analyses the judgement by taking into consideration the facts, issues and arguments advanced by both the parties.

Name of the case

Selvi & Ors v. State of Karnataka & Anr

Citation

AIR 2010 SC 1974

Case type

Criminal Appeal

Bench

J.M. Panchal, R.V. Raveendran, K.G. Balakrishnan

Name of the appellant

Smt. Selvi 

Name of the respondent

State of Karnataka 

Date of judgement

05.05.2010

Name of the court

The Supreme Court of India

Laws involved

Articles 20(3), 21 of the Constitution of India, Sections 39, 53, 53A, 54, 156(1), 161(1), 161(2), 313(3) and 315(1) of the Code of Criminal Procedure, 1973, Sections 24, 25, 26, 27 and 132 of the Indian Evidence Act, 1872 and Sections 44 and 319 of the Indian Penal Code, 1860

Before we get into the facts of the case, we should get to know about a few important concepts for a better comprehension of the case.

Article 20(3) of the Constitution

 No person accused of any offence shall be compelled to be a witness against himself.

Article 20(3) of the Indian Constitution embodies the principle of right against self-incrimination. The Article is based on the Latin 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 accused of. 

The term offence includes any act or omission made punishable by any law for the time being in force. Therefore, the right against self-incrimination under Article 20(3) is applicable to the accused under any Indian legislation in force. However, Article 20(3) is not applicable to civil or administrative proceedings.

In the case of M.P. Sharma v. Satish Chandra (1954), the essential ingredients of Article 20(3) were laid down:

  1. It is a right pertaining to a person who is accused of an offence.
  2. It is a protection against compulsion to be a witness.
  3. It is a protection against such compulsion relating to his giving evidence against himself.

Accused of an offence

Article 20(3) of the Constitution explicitly guarantees the right against self-incrimination to the accused. However, in the present case of Selvi v. State of Karnataka, the Supreme Court interpreted the wider ambit of Article 20(3), including witnesses and suspects of the offence who are questioned in the investigation process.

Compelled to be a witness

Article 20(3) provides protection against compulsion to be a witness to oneself or of the offence. The protection not only applies to testimonial evidence in court but also to compulsion to provide oral and documentary evidence that is likely to incriminate oneself.

Evidence against himself 

Article 20(3) of the Constitution provides that no person can be compelled to provide witness against himself in the trial proceeding. The ambit of this provision is widened to include the answers provided during the investigation.

In the case of Nandini Satpathy v. Dani P.L. (1977), the Chief Minister of Orissa was prosecuted under Section 179 of the Indian Penal Code, 1860 (IPC) for not answering the questions put forward by the police during the investigation of another case. The Supreme Court held that the questions put forward were more confessional and less relevant. The court further stated that the petitioner had the right to remain silent.

Use of medical techniques in criminal investigation

We also need to understand the impugned medical techniques and their use in the criminal investigation before understanding this case in detail.

With the rise of new technological development, medical techniques are being used in criminal investigations to gather new evidence and speed up the investigation process. Some of these include polygraph tests, narcoanalysis tests and brain electrical activation tests. These methods will be discussed in detail below.  

Polygraph test

Polygraph tests, also known as lie detection tests, are used to detect lies by analysing psychological responses during the examination.  Instruments such as cardiographs, pneumographs, cardio cuffs, sensitive electrodes etc., are attached to measure changes in respiration, galvanic skin resistance, blood pressure, blood flow, and pulse while questions are posed to the subject. The numerical values assigned to the test identify lies by observing psychological responses such as heartbeat, sweating, changes in breathing etc., which differ from the normal course.

Before conducting the polygraph test, the examiner conducts a pre-test interview to familiarise the person with the framework of questioning, and to avoid unnecessary psychological responses which may disturb the flow of the test.

History of polygraph test

The first use of a polygraph test was made by Angelo Mosso, an Italian physiologist in 1878, to detect changes in blood pressure. Cesare Lombroso, an Italian criminologist and physiologist, used the polygraph test for criminal investigations for the first time, with the use of an instrument known as a hydrosphygmograph.

Dr. Willam Moulton Marston, an American physiologist, made a primitive lie detector test during World War I for espionage cases, which later became part of the modern polygraph test. In 1921, John Larson incorporated the measurement of respiration rate in the test, and in 1939, Leonard Keeler created the prototype for the modern polygraph test, earning him the title of the father of polygraph.

There are different types of polygraph tests. They include:

  1. Control Question Test (CQT)
  2. Guilty Knowledge Test (GKT)
  3. Concealed Information Test (CIT)

Control Question Test (CQT): This method includes three types of questionnaires for the subject. They are: 

(1) Relevant questions: questions related to crime, 

(2) Control-based questions: general questions relevant to the issue of investigation, and 

(3) Irrelevant questions: questions on irrelevant and neutral topics. 

The underlying principle in this framework is to elicit different psychological responses in the subject. The truthful subject is likely to have greater psychological responses to control questions and irrelevant questions, whereas the deceitful one will have greater psychological responses to relevant questions. This method is followed in India. 

Guilty Knowledge Test (GKT): This method includes questioning the subject by providing multiple choices. Choices include one relevant answer relating to the crime and other control and neutral choices. The deceitful subject will show a greater psychological response to the relevant choice, while the truthful individual will have the same psychological response when all the choices are produced. However, the guilty knowledge test is a less commonly used polygraph test in crime investigations.

Concealed Information Test (CIT): This method involves a series of questions, which comprises a critical question derived from the information extracted from the crime scene and neutral questions. The hidden truth is detected by the responses received on the critical question. The psychological responses to the critical question given by the deceitful subject will be greater than to the neutral question. 

Limitations of polygraph tests

Polygraph tests are also subjected to limitations. Lies are detected through psychological responses, which can also be caused by fear, anxiety, or nervousness about undergoing the test. Therefore, it is necessary to maintain the privacy of the subject during polygraph tests to receive accurate results.

Sometimes, the investigation process starts long after the commission of the crime. The subject may sometimes forget the details pertaining to the occurrence of the crime, leading to false negatives. These responses can also be caused by memory hardening, where false circumstances are formed in the mind about the crime, which can further affect the accuracy of the test results. 

Further, polygraph tests include the risk of subjects using countermeasures to prevent accurate results. One such countermeasure is displaying false fear or anxiety during the tests. Hence, the examiner must be an expert in the field and capable of tackling these situations.

Narcoanalysis test

The narcoanalysis test involves the intravenous administration of drugs such as sodium pentothal, scopolamine, and sodium amytal, making the subject enter into a hypnosis stage. It is also known as the truth serum, drug hypothesis, or narco-interview technique. The term narcoanalysis is derived from the Greek word Narko, meaning anaesthesia. In the narcoanalysis test, the individual loses the capacity to answer according to their will due to the drugs administered. The test aims to bring out the truth from the individual when they are incapable of controlling their answers voluntarily. 

A team consisting of a forensic psychologist, an anaesthesiologist, a psychiatrist, a general physician or other medical staff, a videographer to record the proceedings, and a language interpreter if needed, must be present while conducting the narcoanalysis test. 

History of narcoanalysis test

The first use of narcotic drugs was for medical purposes. William Bleckwenn, a psychiatrist, used the narcotic drug barbiturates on people suffering from catatonic schizophrenia, inducing lucid intervals for them to speak about their medical condition, which was impossible when the patient was conscious.

The use of narcoanalysis for criminal investigation began in the 1920s. Dr. Robert E. House, an American obstetrician, observed that women who were given the drug scopolamine during birth entered a  twilight stage which made them extremely talkative. He used this method on two prisoners and asked them questions about a certain crime. Dr Robert House stated that the subjects would have no recollection of the questions asked after regaining consciousness, proposing that this method must be used in police investigations. He is also known as the father of truth serum. At present, only the drug sodium pentothal is used for the test of narcoanalysis.

Stages of the narcoanalysis test

There are four stages in the narcoanalysis test. They are-

  1. Pre-test interview
  2. Pre-narcotic stage 
  3. Semi-narcotic stage
  4. Post-narcotic stage

Pre-Test interview: This initial stage involves interviewing the subject to acquaint them with the proceedings of the test. 

Pre-Narcotic Stage:  In this stage, sodium pentothal drug is injected into the antecubital vein at a rate not exceeding 4 grams per minute. This makes the person go into a semi-conscious state. When the person starts to wobble, the examiner proceeds to the next stage.

Semi-Narcotic Stage: The subject transitions into a semi-conscious state, as mentioned above, and during this period, the examiner asks the subject questions relating to the crime. The semi-narcotic stage is identified by the following characteristics:

  • The subject handles negative emotional responses such as guilt, avoidance, aggression and frustration in a positive sense.
  • The underlying conflicted and unresolved matters in the mind of the subject regarding the crime are brought into open light.
  • The subject answers questions they typically would not have answered in a conscious state of mind.

Post-Narcotic Stage: The semi-narcotic stage ends by halting the administration of drugs into the subjects body. In this stage, the examiner ensures that the individual regains his memory as it was before the test.

Limitations of narcoanalysis test

Reports suggest a lower success rate for the narcoanalysis test, with individuals sometimes providing information about their personal lives rather than crime-related details, leading to inaccuracies in the test results. Other limitations include potential pressure on the examiner to frame questions in such a way which are incriminatory in nature and the risk of serious medical complications for the individual, such as damage to brain cells, perpetual loss of memory, permanent loss of body activity, respiratory paralysis, etc., if the examiner falters or makes any error in any procedure of the test.

Brain Electrical Activation Profile (BEAP) test

The BEAP test, also known as the P300 waves test, is a process wherein the brain waves of a person in reaction to stimuli are examined to determine whether the person is acquainted with the facts of the crime. The brain waves,  known as Event Related Potentials (ERP), are measured while determining the persons response to stimuli such as words, pictures, sounds, visuals, etc. These stimuli are known as probes.

The probes are of two types: Material probes and Neutral probes. The accused when looking at the material probes relating to the crime will release the P300 waves, which determine that the subject has some association with the facts of the crime.

The BEAP test is performed by attaching electrodes to the scalp of the subject to measure the brain waves. The test is conducted in an air-conditioned room where there are no kind of weather distortions, and the subjects mental privacy from external material can be maintained.

History of BEAP test

In the 19th century, electrical signals produced by the brain were recorded to examine the functioning of the brain by Electroencephalogram (EEG) test. The EEG  test is still used for medical purposes, for diagnosing seizures, sleep disorders, brain tumours or any brain-related disorder.

The connection between the electric signals of the brain and different stimuli was recognized with the advent of computers. The P300 wave, a brain wave, recognized by Dr Samuel Sutton in 1965, is used in the BEAP test to determine whether the person is acquainted with the facts of the crime. The P300 wave is triggered when the subject experiences surprise or shock.

Brain fingerprinting and Functional Magnetic Resonance Imaging

Dr Lawrence Farewell, with the use of the P300 wave, developed a new technique called brain fingerprinting in criminal investigation. Brain fingerprinting is performed by measuring brain electromagnetic waves with the use of an electroencephalogram (EEG). According to Dr Lawrence Farewell, the P300 wave is an isolated brain wave, but it has a continued effect after being exposed to the stimulus. It stays for 300-800 milliseconds after the subjects exposure to the stimulus.

Functional Magnetic Resonance Imaging (FMRI) on the other hand, is a neuroscientific technique where the guilt of the subject is detected by observing the blood flow of the subjects body in response to the questions asked by the examiner. FMRI test is conducted by the use of an MRI scan. 

Limitation of P300 wave test

The P300 wave test is based on the subjects response to the probes or stimuli related to the crime used in the investigation. Sometimes, the subject is already acquainted with the material facts that are going to be used in the test, potentially from information received through newspapers, radio, or television. Other times, such exposure can be caused by the examiners unintentionally revealing important information regarding the test to the subject. Prior exposure to the subject completely beats the main purpose of the test.

Another limitation of the test is that there is no specific bar to determine the guilt of the person. A by-stander who has no connection with the crime may release a P300 wave as he witnessed the crime. It makes it challenging to identify the accused through the test.

Brain fingerprinting, popularised by Dr Lawrence Farewell, has not been studied by any independent researcher, raising questions about the accuracy of the results. The primary limitation of brain fingerprinting and functional magnetic resonance imaging is that they invade the mental privacy of an individual.

Smt. Selvi and Ors v. State of Karnataka & Anr is a criminal appeal that was heard in the Supreme Court of India, resulting in the decision reflected in Criminal Appeal No 1267 of 2004. The case addressed legal questions related to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination, and the Brain Electrical Activation Profile (BEAP) test, for the purpose of improving investigation efforts in criminal cases. The case places emphasis on major legal issues including privacy or personal liberty, self-incrimination and substantive due process.

The present case is not a general dispute between two private parties; instead, It raised questions about the nature and scope of the fundamental rights guaranteed by the Constitution.

The main legal issues that were raised in the court regarding this appeal were

  1. Whether the involuntary administration of the impugned techniques violate the right against self-incrimination enumerated in Article 20(3) of the Constitution?
  2. Whether the investigative use of the impugned techniques create a likelihood of incrimination for the subject?
  3. Whether the results derived from the impugned techniques amount to testimonial compulsion thereby attracting the bar of Article 20(3)?
  4. Whether the involuntary administration of the impugned techniques is a reasonable restriction on personal liberty as understood in the context of Article 21 of the Constitution?

Contentions raised by the appellants

Mr Rajesh Mahale, Mr Manoj Goel, Mr Santosh Paul, and Mr Harish Salve argued against the involuntary administration of the impugned techniques in criminal investigations. 

  • The appellants contended that, in a few cases, polygraph tests or BEAP tests are conducted subsequently after conducting a narcoanalysis test to ascertain accuracy. In some cases, the subjects ability to deceive the investigation process is tested by the polygraph method, and whether the subject is aware of the facts of the crime is tested through the BEAP test before conducting the narcoanalysis test. The appellants contended that the consent of the accused was not obtained before conducting these impugned techniques which violates their fundamental right under Article 20(3).
  • The appellants stated that investigating officers obtained information from the accused by the threat of the impugned techniques. The accused, without knowing their legal rights, accept their guilt by making self-incriminatory statements, fearing that these investigation techniques will extract a confession. The petitioners urged the Apex court to decide whether the involuntary admission, induced by threatening the accused with the impugned techniques, can be used in the trial. 
  • The appellants argued that the physical pain caused by the impugned techniques is equivalent to injury defined under Section 44 and hurt under Section 319 of the Indian Penal Code, 1860.

Contentions raised by respondents

Mr Goolam Essaji Vahanvati, the former Attorney General of India, Mr Anoop G Choudhar further supported by Mr T. R. Andhyarujina on behalf of the Central Bureau of Investigation (CBI), Mr Sanjay Hedge on behalf of the State of Karnataka, and Mr Dushyant Dave represented the Union of India in favour of the use of impugned techniques in criminal investigations.

  • Respondents contended that the impugned techniques do not cause any harm to the subjects of the test. They further stated that these techniques strengthen the evidence and lead to speedy disposal of cases, resulting in quicker convictions or acquittals of the accused.
  • The respondents also argued that these impugned tests are only used to strengthen verbal revelations, made during the course of the test are not presented before the court, as the inculpatory or exculpatory nature of those revelations is not known. Hence, they stated that conducting these tests does not amount to a violation of the right against self-incrimination under Article 20(3) of the Constitution.
  • The respondents contended that other tests which the registered medical practitioner thinks necessary in a particular case, mentioned in Section 53 (examination of accused by the medical practitioner), Section 53A (examination of a person accused of rape by the medical practitioner) and Section 54 (examination of arrested person by the medical practitioner) of the CrPC in the context of medical examination can be used while administering the impugned techniques to the accused. They further argued that force can be employed to obtain such tests.

A three-judge bench, including former chief justice of India, K.G. Balakrishnan, R.V. Raveendran, and J.M. Panchal, delivered the judgement that involuntary administration of the polygraph test, narcoanalysis test and brain electrical activation profile test on accused violates the right against self-incrimination under Article 20(3). 

Issue-wise judgement

Whether the involuntary administration of impugned techniques violates the right against self-incrimination enumerated in Article 20(3) of the Constitution?

The Supreme Court, based on the judgement of Maneka Gandhi v. Union of India (1978) held that Article 20(3) of the Constitution must be examined under the wider connotations of personal liberty mentioned in Article 21 which guarantees the right to fair trial and substantive due process to all citizens. The Forty-Fourth Amendment, 1978 confers Article 20(3) non-derogable status i.e., the absolute right which cannot be taken back even during a period of emergency. 

The Apex Court acknowledges the power granted under the Code of Criminal Procedure (CrPC), 1973, to make individuals cooperate with the investigation. They include:

  • Section 39 states that any person who knows the commission or intention of commission of any offence specified under Section 39 must inform the nearest magistrate or police station. This Section mandates the individual to inform any information they might know about the commission of an offence in the absence of a reasonable excuse in order to cooperate with the investigation and prevent the commission of such an offence.
  • Section 156(1) mentions that an officer-in-charge of the police station can initiate an investigation of a cognizable offence without a prior order from the magistrate.
  • Section 161(1) empowers the police officer to examine the officer who is expected to know the facts and circumstances of the case.

However, the provisions of CrPC are subject to the fundamental rights granted under Part III of the Constitution. The CrPC incorporates a few provisions to ensure the rights of the accused are not violated. Some of them include:

  • Section 161(2) states that a person can remain silent if questions are asked by the officer during the investigation, if such an answer can lead to a criminal charge.
  • Section 313(3) mentions that the accused cannot attract punishment if he refuses to answer or provides a false statement during an inquiry by the court.
  • Proviso (b) of Section 315(1) mentions that if the accused appears as a witness for himself and if he remains silent, his silence cannot be inferred as the presumption of acceptance of charges levied against him. 

The Apex Court opined that the rule against self-incrimination mentioned under Article 20(3) of the Constitution is based on two principles-

(1) reliability of the statement of the accused, and 

(2) voluntariness of the statement given by the accused. 

The reliability of the accuseds statements depends on his voluntariness. The involuntary statements made by the accused are generally presumed to be made under pressure, threat, or coercion of the investigating officer, and there is a high chance that involuntary statements can be false testimony of the accused. The court held that such false testimony abuses fair trial and even causes delays in the investigation process.

The court opined if the involuntary statements of the accused are accepted in a trial, it would lead to police using custodial violence or third-degree methods to elicit information from the accused, which would lead to a violation of their right to a fair trial and substantive due process as guaranteed under Article 21. The court further stated that shortcuts in the investigation process with the use of impugned methods will impact the accountability and diligence on the part of the investigating officer. 

Based on these facts the Supreme Court decided that the involuntary administration of the impugned techniques violates the right against self-incrimination as enumerated under Article 20(3) of the Constitution.

Whether the investigative use of the impugned techniques create a likelihood of incrimination for the subject?

The Apex Court stated that to answer the above question it is essential to address the following questions:

  1. Whether the scope of self-incrimination extends to the investigation stage or is it confined to the trial stage?
  2. Whether the protection under Article 20(3) extends to witnesses and suspects, or is it confined to the accused?
  3. Whether the independent materials found with the aid of the impugned test have any evidentiary value?

Whether the scope of right against self-incrimination extends to the investigation stage or is it confined to the trial stage?

The Supreme Court referred to the case of Nandani Satpathy v. P.L. Dhani (1978), in which the Supreme Court held that Article 20(3) must not be construed exactly as mentioned in the provision. The protection of the right against self-incrimination is available where the statements of the accused are recorded. Section 161(2) of the CrPC also specifies the right of the person to remain silent if the police ask questions during the investigation. Sometimes, the provisions mentioned in the Constitution and CrPC overlap. The court stated in such circumstances protection under both CrPC and the Constitution must be provided to the accused. 

The Supreme Court decided that the right against self-incrimination under Article 20(3) also extends to the investigation stage. 

Whether the protection under Article 20(3) extends to witnesses and suspects or is it confined to the accused?

Criminal litigation

Article 20(3) guarantees the right against self-incrimination to the accused, while Section 161(2) of the CrPC seeks to protect any person acquainted with the facts and circumstances of the case. Section 161(2) has a wider connotation that includes suspects and witnesses within the ambit of the right against self-incrimination. 

However, the protective scope for witnesses in the trial is restricted by Section 132 of the Indian Evidence Act, 1872. It states that a witness cannot be excused on the ground that the evidence to be provided is likely to incriminate the witness. Nonetheless, the proviso to the Section states that no criminal or civil action can be taken against the witness for the answers provided in the trial unless they provide false evidence. 

The Supreme Court held that the protection under Article 20(3) extends to the accused and suspects, but not to witnesses.

Whether the independent materials found with the aid of the impugned test have any evidentiary value?

A well-established principle asserts that statements made while in custody are typically deemed unreliable unless they undergo cross-examination. The framework established by the CrPC and the Indian Evidence Act further emphasises that confessions made in the presence of police are generally inadmissible as evidence, in accordance with Sections 24 to 26 of the Indian Evidence Act.

  • Section 24: The statement by the accused, made under threat, fear, or coercion from a person in authority, is deemed inadmissible in court.
  • Section 25: Any confessional statement made to the police is not admissible as evidence against a person accused of any offence. 
  • Section 26: The confessions made by the accused in the custody of the police are not admissible unless they are made in the presence of the magistrate.

These principles embodied in the aforementioned Sections of the Indian Evidence Act are collectively recognised  as the doctrine of the Fruits of the Poisonous Tree. The confessions made under the circumstances outlined in these provisions are deemed irrelevant and inadmissible in court. However, Section 27 permits the admissibility of independent material found by the police based on the statements of the accused person in custody. 

The Apex Court based on all these factors decided that the independent material found on the basis of the voluntarily administered impugned tests is admissible in accordance with Section 27 of the Indian Evidence Act.

The Court held that during the course of the investigation, the distinction between inculpatory and exculpatory evidence must be made to decide what evidence is admissible before the court. All the involuntary statements or answers acquired through threat, inducement, or coercion fall within the ambit of exculpatory statements. The person in authority has to inform their right to remain silent to the accused. The person can answer or remain silent; if he answers based on that exclusive answer, the inculpatory or exculpatory nature of the answer will be determined.

Based on these facts, the Supreme Court decided that the independent facts found with the aid of the impugned tests have evidentiary value before the court.

Whether the results derived from the impugned techniques amount to testimonial compulsion thereby attracting the bar of Article 20(3)?

The Supreme Court held that Article 20(3) ensures protection against the materials which are used to incriminate oneself. Hence, testimonial compulsion falls within the scope of Article 20(3).  Article 20(3) can also be invoked against statements that furnish a link in the chain of evidence, which establishes the sequence of the evidence.

The Supreme Court further held that to offer personal information for the purpose of corroboration or identification of facts that do not come within the ambit of testimonial evidence. The court held that providing a specimen of handwriting, fingerprints, or signature would lead to furnishing evidence rather than being a witness under Article 20(3) of the Constitution.

The Supreme Court determined that the narcoanalysis test falls within the category of testimonial evidence, wherein the subject, in his semi-conscious state induced by drugs, is prompted to answer. This response can be either self-incriminatory or furnish a link through the chain of evidence. The rationale behind this decision aligns with the acknowledgement that the technique involves a testimonial act. The subject is coerced to speak while under the influence of drugs, and there is no justification for treating this act differently from verbal responses during a standard interrogation. This, in turn, triggers the protections afforded by Article 20(3).  

Polygraph tests and BEAP tests are slightly different from narcoanalysis tests because in the former the responses are taken from physiological responses, not oral or documentary responses. The Supreme Court, adopting a broader perspective, held that polygraph tests and BEAP tests attract testimonial compulsion since the examiner infers the information from the subject.

Hence, the Supreme Court held that the use of the impugned techniques fell within the ambit of testimonial compulsion.

Whether the impugned techniques are within the purview of the medical examination under CrPC?

Sections 53, 53A and 54 of the CrPC outline the provisions for the medical examination of an accused at the request of the police officer or the accused themself. 

  • Section 53: This Section allows a police officer to request medical attention if there are reasonable grounds to believe that the accused could provide evidence relating to the crime after a medical examination. The registered medical practitioner, along with anyone acting in good faith under their direction, is permitted to conduct the examination using force that is reasonably necessary for the purpose. 
  • Section 53A: It stipulates that in cases of arrest for rape, a police officer, with reasonable grounds, can request a medical examination if the person arrested can provide evidence.
  • Section 54: This section mandates that the central government or state government should provide a medical officer if one is not available.

The explanation under Sections 53, 53A, and 54, introduced by the Code of Criminal Procedure (Amendment) Act, 2005 broadened the term examination to include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples, and fingernail clippings by the use of modern and scientific techniques, including DNA profiling, and such other tests that the registered medical practitioner deems necessary in a particular case.

The respondents contended that other tests which the registered medical practitioner thinks necessary in a particular case mentioned in the above definition also include the impugned techniques. The respondents further argued that force could be employed to obtain such tests. 

In response to the respondents argument, the appellants contended that the Parliament intentionally and consciously omitted the impugned techniques in the 2005 amendment. They also argued, with the virtue of ejusdem generis, that the general words in the statute must be interpreted on the basis of the commonality of words used in the statute.

The Apex Court agreed with the appellants on the ejusdem generis argument. The court observed in the definition of examination under Sections 53, 53A, and 54 that medical tests do not involve testimonial acts like psychiatric examinations, and the parliament deliberately excluded the impugned techniques from the scope of the definition. 

The respondents also contended that the impugned techniques are similar to DNA profiling,  which is included in the examination under Sections 53, 53A, and 54. DNA profiling is a record used to compare DNA samples of accused and suspects with the existing DNA samples for forensic purposes. The Supreme Court held that examination for the purpose of identification and comparison does not invoke Article 20(3).  If DNA profiling develops in future for testimonial purposes, it would fall under Article 20(3).

The Apex Court concluded that polygraph tests, narcoanalysis tests, and BEAP  tests do not fall within the scope of medical examination under Sections 53, 53A, and 54 of CrPC.

Whether the involuntary administration of the impugned techniques is a reasonable restriction on personal liberty as understood in the context of Article 21 of the Constitution?

The involuntary administration must be compared with substantive due process. Compliance with substantive due process is the yardstick to ensure that different rights under Article 21 are not violated.

When we  compare Article 20(3) with substantive due process under Article 21, many rights under Article 21 are violated, including:

(1) The physical confinement of the subject for conducting the impugned test violates the personal liberty of an individual. 

(2) Obtaining answers while the accused is not in a conscious state violates the mental privacy of the subject. 

(3) The incriminating statements provided by the subject while the accused was forcefully subjected to the test would lead to a violation of personal liberty. 

Hence, Article 21 is subjected to restrictions, and it cannot be applied absolutely. These restrictions should be guided by principles of fairness, non-arbitrariness, and reasonableness. 

In consonance with Article 21, the Apex Court decided that the involuntary administration of impugned tests violates the right to privacy. The court emphasised that individuals must be given total autonomy concerning whether to remain silent or answer the questions. However, the right against self-incrimination under Article 20(3) does not apply to administrative or civil proceedings. It also does not extend to non-penal circumstances such as custodial violence, police surveillance, and police harassment.

The Apex Court asserted that determining the compliance of the impugned test with substantive due process involves considerations of various dimensions of Article 21. This includes the right against cruel, inhuman, or degrading treatment, and the right to a fair trial. 

Right against cruel, inhuman or degrading treatment

The Supreme Court based on the judgement DK Basu v. State of West Bengal (1997), held that every person taken into police custody has a right against cruel, inhuman, or degrading treatment. As the impugned techniques are conducted in custody, individuals subjected to the test also are entitled to this right. The requirement of custody is not limited to the presence of police but includes physical confinement, making impugned techniques sufficient to trigger this right. This safeguard applies to both accused individuals as well as those categorized as suspects or witnesses. 

The Supreme Court clarified that cruel, inhuman, or degrading treatment includes all kinds of abuse, but it is of lower intensity than torture. The appellants argued that the physical pain caused by impugned tests is equivalent to injury under Section 44 and hurt under Section 319 of IPC. In contrast, the respondents contended that impugned tests do not inflict any physical pain. 

The court determined that the impugned techniques may result in subsequent physical pain for the subject. A person making any incriminatory statement becomes vulnerable to being targeted in custody, potentially leading to abuse. The threat of conducting the impugned techniques or the subsequent consequences of the test results can also result in mental abuse. The court emphasised the distinction between physical pain inflicted during  medical treatment, where the objective is to cure the patient and protect them from diseases and the physical pain caused by the impugned techniques

The Apex Court clarified that cruel, inhuman, or degrading treatment does not necessarily mean broken bones or bloodshed. The court concluded that the involuntary administration of the impugned tests constitutes a violation of the right against cruel, inhuman or degrading treatment.

Right to a fair trial

The Apex Court decided that compelling the involuntary administration of impugned techniques violates the individuals right to a fair trial. 

After conducting the tests, the examiner typically does not convey the results to the subject. The prosecution presents incriminating evidence, while the defence is either deprived of the information or provided with it much later, thereby violating an individuals right to a fair trial.

The Apex Court further observed the impact of the impugned techniques on the judge while deciding a case. Despite the judges duty to adjudicate a case in an unbiased and impartial manner, the test results create an implied pressure on the judge to decide the case in favour of the results. 

Ensuring equal opportunity for the prosecution and defence in a case is essential to a fair trial. If the prosecution is given an opportunity for involuntary administration of impugned techniques, the defence might seek a re-trial or open administration of the tests. The Supreme Court held that these tests would lead to the proliferation of court cases.

Based on the above findings the Supreme Court decided that the involuntary administration of the impugned techniques violates the right of personal liberty under Article 21 of the Constitution.

Compelling public interest

In addition to the above issues, the Honble Supreme Court also examined the involuntary administration of impugned techniques in the context of the public interest.

The respondent contended that the involuntary administration of the impugned techniques must be allowed in heinous crimes likely to affect the matters of compelling public interest which include the sovereignty and integrity of India, and the security of the state, or disturb the public order, among other circumstances. They further argued that these methods help in uncovering plans, extracting information from suspects, and preventing the occurrence of crimes.

The Supreme Court held that it is the duty of the Parliament to provide a balance between the personal liberty of an individual and public safety, while the judiciary can only interpret constitutional provisions. 

The Apex Court highlighted practical issues. It cannot always be stated that the impugned techniques help the investigation process. In a narcoanalysis test, a subject can provide a lot of false and irrelevant information. An experienced and professional examiner must be present to interpret the results. In the polygraph test, there is a threat that the subject can use countermeasures to conceal the true responses, and in the BEAP test, if the subject is already exposed to the stimuli, the whole purpose of the test gets defeated.

The Apex Court also held that the use of impugned techniques for heinous crimes would eventually lead to ambiguity and the use of these methods cannot be restricted. 

Obiter dicta

In light of the above deliberation concerning the issues and contentions of both parties, the Supreme Court adjudicated that no individual can be forcefully administered a polygraph test, narcoanalysis test or BEAP test. The involuntary administration of the impugned techniques is considered a violation of the right to privacy under Article 21. The voluntary administration of the tests is not discussed. Still, even the voluntary administration of these tests is not admissible because the accused is not in a conscious state. However, any independent material found on the usage of the impugned techniques will be deemed admissible in accordance with Section 27 of the Indian Evidence Act.

The Supreme Court held that Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused, 2000 issued by the National Human Rights Commission, must be strictly followed even for narcoanalysis and BEAP tests. 

Guidelines issued by the National Human Rights Commission (NHRC)

  1. Lie detection tests cannot be administered without the consent of the accused. The accused must be provided with an option of whether he wants to be subjected to the test.
  2. The accused must be given access to his lawyer, and the physical, legal, and emotional results of the test must be informed to the accused by the police or his lawyer.
  3. The consent of the magistrate must be obtained.
  4. The accused subjected to the test must be represented by his lawyer during the hearing before the magistrate.
  5. The magistrate must inform the accused that the status of his statement will be the same as before the police and shall not be confessional in nature.
  6. The magistrate shall look after all details of the detention, including the length of detention and the nature of interrogation.
  7. The test must be conducted by a third party, such as a hospital, in the presence of his lawyer.

Smt. Selvi and Ors. v. State of Karnataka is a landmark judgment in the history of the Indian judiciary. The judgment begins with a detailed description of the narcoanalysis, polygraph test and BEAP test, covering the scientific, legal, ethical, and moral aspects. Numerous cases are discussed and cited, the majority of which are foreign, as the issue is new to our country.

The judgment is an excellent example of how the judiciary, in the true sense, is the guardian of the fundamental rights of citizens guaranteed by the Constitution. The rights of an accused are important because the Indian criminal system is based on the principle of innocent until proven guilty. During the investigation and trial, a narration is already set against the accused and suspects and the police use their power and every resource to prove against the accused and suppress them. Article 20(3) protects the accused from such exploitation. The judiciary in the present judgement reinforced the rights of the accused and widened its scope by including polygraph tests, narcoanalysis tests and BEAP tests within Article 20(3) of the Constitution.

Article 20(3) of the Indian Constitution addresses the right against self-incrimination. It states that the accused cannot be forced to be a witness against himself. As under polygraph tests, narcoanalysis tests, and BEAP tests the information is not received from the typical method of investigation, this created confusion about whether or not these methods attract the bar of Article 20(3). Even though the use of impugned techniques was not the conventional approach in an investigation, the Supreme Court observed that the receiving of psychological responses without the prior permission of the subject is violative of Article 20(3) of the Constitution.

The concept of privacy is relatively new to India, finding its place under Article 21 of the Constitution. The Honble Supreme Court has co-related Article 20(3) and Article 21 of the Constitution, holding that the subject must be given total autonomy, allowing the accused to provide an answer or remain silent. The Court also discussed the protection of mental privacy of an individual.

The author is of the opinion that the judges are nowhere wrong in highlighting the strict need to follow the guidelines laid by the National Human Rights Commission for the administration of such tests. Various studies have shown that the pain a person undergoes during these tests is equivalent to the third-degree torture given to criminals.

The landmark judgment holds its validity for ages to come. The author agrees and appreciates every point raised in the case, highlighting the detailed answers provided to every legal question. The bench has covered all aspects, including both positive and negative sides of the situation. We all are aware that an accused is innocent unless proven guilty, and subjecting an accused to such treatments would, therefore, be injustice on his/her part. The author strongly agrees with the decision taken by the bench and believes that humanity and constitutional morality should be kept above all.

Technology has a significant impact on human civilization, bringing advancement in all spheres of life. It has absolutely outpaced the developments in law and humankind. At certain times, the use of technology violates the fundamental rights of the citizens. A prime example is the involuntary use of polygraph tests, narcoanalysis tests and BEAP tests against the accused in investigations, which infringe upon their right against self-incrimination as guaranteed in Article 20(3) of the Constitution. 

In the present case of Selvi v. State of Karnataka, the Honble Supreme Court meticulously balanced technology and the fundamental rights of the citizens. The Apex Court in the present case decided against the involuntary administration of the impugned techniques. The court made the consent of the subject a compulsory requirement for the administration of these tests in accordance with their rights guaranteed under Articles 20(3) and Article 21 of the Constitution. The Supreme Court emphasised the importance of the mental privacy of individuals and leaned towards the normal course of investigation rather than the short-cut use of impugned techniques.

What are the exceptions to Article 20(3) of the Indian Constitution?

In the case of State of Bombay v. Kathi Kalu (1961) the Supreme Court differentiated the terms furnishing evidence and to be a witness and stated that acquiring specimens of handwriting, photograph, fingerprint and the seizure issued under a search warrant do not fall  within the ambit of definition of evidence under Article 20(3). This is an exception to the right against self-incrimination under Article 20(3) of the Constitution. Apart from this, Article 20(3) is not applicable in civil proceedings and non-penal consequences like police surveillance, custodial violence, or police harassment.

What are the instances in which the polygraph test was used in India? 

The polygraph test was used in the infamous cases of the Nupur Talwar v.  State of Uttar Pradesh (2017) (Arushi Talwar Murder case) and the Shraddha Walkar murder case.

What are the instances in which narcoanalysis was used in India?

Zakia Ahsan Jafri v. State of Gujarat (2022) (the 2002 Gujarat riots case), Abdul Karim Telgi v. State of Karnataka (2017) (Abdul Karim Telgi fake stamp case), and Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. State of Maharashtra (2012)  (the 26/11 Mumbai attack case) are a few instances where narcoanalysis tests were conducted.

What are the instances in which the brain mapping test is used in India?

The use of brain mapping is less common in comparison to polygraph tests and narcoanalysis in India. Brain mapping was conducted in cases such as Abdul Karim Telgi v. State of Karnataka (2017) (Abdul Karim Telgi’s fake stamp case) and Shraddha Walkar’s murder case.