This article has been written by Yash Jain.
The case is seen as a case of utmost importance in the history of Indian judiciary. India in 2010 had seen an infallible fight between humanity and technology. Technology has absolutely outpaced the developments in law and human mankind. Narco Analysis is one such scientific advancement that has become progressively, perhaps alarmingly, common term in India. Some constitutional questions that encompass the era of technology are crucial to answer. are the methods adopted by the investigative authorities are ultra vires to the fundamental’s rights of an individual, Whether the techniques are a boon or a bane for the accused, whether human rights are at stake because of such practices. The authors have certainly put forward the relevant information from the landmark judgment and have critically analyzed the points that were put forward.
Keywords: Article 20(3), Article 21, Human Rights, Narco Analysis, Selvi v. State of Karnataka.
“It has become appallingly obvious that our technology has exceeded our humanity.”[i]
We live in a world which is ever growing and with the change in time, the need of people also changes and hence growth becomes an unavoidable factor. One of the most important and significant development is the growth in technological advancements. Now since every coin has two sides, technological advancements too have its pros and cons. One such advancement in the technology that we are here concerned about is the use of scientific techniques such as Narcoanalysis (NARCO), polygraph examination (PE) and the Brain Electrical Activation Profile (BEAP) test. These days the impugned techniques are being used in various fields for various purposes. We here are concerned with the use of these techniques in the criminal justice system. The impugned techniques help the investigating authorities to get relevant information from the accused. But now the word consent comes into the picture. The accused are involuntarily administered to these tests and hence a whole lot of question regarding the violation of human rights and fundamental rights arises. The landmark judgment of Smt. Selvi and Ors v. state of Karnataka,[ii] raises the important legal issues with respect to the involuntary administration of the impugned techniques and also makes a clear stand so as to what all should be done and taken care of while using these techniques. The author has tried to critically analyze the judgment by assuming the following hypothesis:
Background of the case
Smt. Selvi and Ors v. State of Karnataka,[iii] is a criminal appeal in the supreme court of India bearing Criminal Appeal No 1267 of 2004. The case talks about the 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.[iv] The case gives emphasis on major legal issues including privacy or personal liberty, self-incrimination and substantive due process.
The main legal issues that were raised in the court regarding this appeal were
- Whether the involuntary administration of the impugned techniques violates the ‘right against self-incrimination’ enumerated in Article 20(3) of the Constitution?
- Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?
- Whether the results derived from the impugned techniques amount to ‘testimonial compulsion’ thereby attracting the bar of Article 20(3)?
- 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?[v]
A three-judge bench including the then chief justice of India, K.G. Balakrishnan, J. RV Raveendran and J. JM Panchal held that involuntary administration of the impugned techniques violates the ‘right against self-incrimination’
“This Court has recognized that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory.”[vi]
Also, the court held that it violates the basic human right of an individual as the forcible administration of these techniques amounts to cruelty and is an intrusion of mental privacy. The bench ruled that involuntary administration of the impugned techniques violates the standard of substantive due process as given under article 21(3).[vii]
“we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test”[viii]
The court also highlighted the guidelines that are laid down by the National Human Rights Commission for the administration of the polygraph test on the accused. The court held that these guidelines should be strictly adhered to for all kinds of such techniques.
Smt. Selvi and Ors. v. State of Karnataka is a landmark judgment in the history of Indian judiciary, the judgment starts with detail description of narcoanalysis, polygraph test and BEAP test including the scientific, legal, ethical and moral aspects also. Then a number of cases have been discussed and cited the majority of which were foreign as the issue is new to our country and relevant citations were not available. The three basic contentions that have been raised in the judgment are-
- The involuntary administration of the impugned techniques violates article 20(3) of the Indian Constitution.
“No person accused of any offence shall be compelled to be a witness against himself.”[ix]
Article 20(3) of the Indian constitution talks about the right against self-incrimination. It says that the accused cannot be forced to be a victim against himself, now when we talk about the administration of scientific techniques like NARCO, BEAP etc. on the accused in order to carry forward the investigation process by recording the testimony regarding the case, we mean that the person would be under the influence of certain chemicals because of which he is supposed to answer the relevant details and would not be able to lie. This can be considered good to fasten the investigation process as it would save time and energy of the investigating authorities which is being wasted in extracting true information from the accused. But considering the fact that there is no consent involved in this procedure, we can deduce that the accused is being forced and compelled to give testimony against himself.
The basic rationale behind right against self-incrimination is to maintain the integrity of the judicial process, to forbid false testimony and to achieve a fair trial. And forcing administration of such techniques on the accused would not solve the purpose whereas it would raise questions of integrity on our trails. It is being repeatedly argued that the statements made by the victims during the test are not used against themselves but the statements are used to carry forward the investigation. The bench is of the following opinion on this-
“The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorized as material evidence.”[x]
A number of provisions from CRPC including sec 161(2) talk about an accused’s right to remain silent and that he/she should not be forced to give any testimony which might result into penal provisions against himself.
“The protective scope of Article 20(3) read with Section 161(2), CrPC guards against the compulsory extraction of oral testimony, even at the stage of an investigation.”[xi]
- The involuntary administration of the impugned techniques violates the right to privacy and personal liberty as given under article 21 of the Indian.
“Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”[xii]
The concept of privacy is still new to India and it has only found its place under article 21 of the constitution and to understand the scope of privacy and on what grounds its violations can take place we need to understand that whether the involuntary administration of any of these tests is compatible with the constitutional guarantee of substantive due process.[xiii]
“In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of an investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty Forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty.”[xiv]
The impugned tests put a restraint on personal liberty in a number of ways. Firstly, by confining a person against his will at the time of conducting the test. Secondly, it infringes a person’s mental privacy by subjecting him to a drug which induces him to make revelations. This brings us to one another aspect of privacy i.e. when we talk about personal liberty we are not always concerned with physical barriers. Privacy also includes mental privacy, the right to choose, a person’s right to remain silent and to choose what to speak and forcing a person to confess something under the administration of certain drugs. Through this, we can create an interrelation between article 20(3) and article 21 of the Indian Constitution i.e. right against self-incrimination should be read as a part of the right to personal liberty.
“An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.”[xv]
Therefore, taking into account all the necessary and relevant contentions the author is of the view that the involuntary administration of the impugned techniques violates a person’s right to personal liberty and right against self-incrimination.
- The involuntary administration of the impugned techniques is against basic human rights.
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 administration of such tests as it has been proved in various studies that the pain a person goes through during these tests is equivalent to the third degree torture given to the criminals.
The landmark judgment holds its validity for ages to come. The author agrees and appreciates each and every point that has been raised in the case. The author would like to highlight the way by which a detail answer to every legal question has been given. 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 is injustice on his part. The author strongly agrees with the decision taken by the bench and believes that humanity and constitutional morality should be kept above all.
[i] Ken Makovsky, Is Technology Exceeding Humanity? (Forbes, May 7 2012), https://www.forbes.com/sites/kenmakovsky/2012/05/07/is-technology-exceeding-humanity/#7d4bc8006ea3.
[ii] Selvi and Ors. v. State of Karnataka, A.I.R 2010 S.C. 1974.
[iv] Supra note 2.
[v] Selvi and Ors. v. State of Karnataka, A.I.R 2010 S.C. 1974.
[vii] Supra note 2.
[viii] Selvi and Ors. v. State of Karnataka, A.I.R 2010 S.C. 1974.
[ix] INDIA CONST. art. 20(3).
[x] Supra note 2.
[xi] Selvi and Ors. v. State of Karnataka, A.I.R 2010 S.C. 1974.
[xii] INDIA CONST. art. 21.
[xiii] Supra note 2.
[xiv] Selvi and Ors. v. State of Karnataka, A.I.R 2010 S.C. 1974.
[xvi] D.K. Basu v. State of West Bengal, A.I.R. 1997 S.C. 610.
[xvii] Supra note 2.
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