Author: Rutvij Vyas (Faculty of Law, GLS University)
ABSTRACT / HEADNOTE
Smt. Selvi V. State of Karnataka, is a leading case of Hon’ble Supreme court, which answered the question of law, whether the pscyo-scientific techniques such as polygraph test, narcoanalysis, BEAP test, can be used to administer criminal justice. The three judge bench of Js J.M. Panchal, R.V. Raveendran, K.G. Balakrishnan considered the emerging perspectives of such techniques and prohibition of self-incrimination under Article 20 (3) and has held, that no impugned tests can be conducted without the accused’s free and fair consent, which must be obtained in the presence of a judicial magistrate and the accused’s advocate. For the Supreme Court it was not only fight between humanity and technology, but also between easy administration of justice and personal freedom. This judgement is a crucial reminder that while society and the State has a legitimate interest in fighting crime, this must be stabilized with the protection of individual rights. This article explores the facts and background of the case, legal issues raised, arguments of the petitioners and respondents, the judgement and conclusion of the case.
Keywords:- Narcoanalysis, Polygraph, BEAP, Self-incrimination, Voluntary administration
CASE DETAILS
| Judgement Cause Title | Selvi & Ors vs State Of Karnataka & Anr |
| Case Number | Criminal Appeal No. 1267 of 2004 |
| Judgement Date | 5 May, 2010 |
| Court | The Supreme Court of India |
| Quorum | J.M. Panchal, R.V. Raveendran, K.G. Balakrishnan |
| Author | K.G. Balakrishnan |
| Citation | Equivalent citations: AIR 2010 SUPREME COURT 1974, 2010 (7) SCC 263, 2010 AIR SCW 3011, 2010 (3) AIR KANT HCR 19, (2011) 2 BOMCR(CRI) 473, (2010) 3 ALLCRILR 605, (2010) 1 CRILR(RAJ) 510, (2010) 2 CURCRIR 311, (2010) 2 RAJ LW 1688, (2010) 46 OCR 457, (2010) 2 CRIMES 241, 2010 (3) SCC(CRI) 1, 2010 (4) SCALE 690, 2010 CRILR(SC MAH GUJ) 510 |
| Legal Provisions Involved | Article:-21, 20(3) |
INTRODUCTION AND BACKGROUND OF JUDGEMENT
When we consider, the administration of justice, one may contemplate the possible and perpetual ease of determining guilt or innocence by closely examining the brain mapping of the accused, through several psychological testes such as BEAP (Brain electrical activation profile) or polygraph tests or narcoanalysis. However, there are many key considering factors, such as, the Constitution of India’s Article 20(3) puts prohibition on self-incrimination, which puts numerous ethical & legal concerns about administration of Criminal justice through the impugned tests on an individual’s brain without their free and fair consent.
The use of techniques/ tests such as narcoanalysis could possibly infringe the privacy of such person to whom test is done. Lastly, relying completely on a single machine for such analysis may result in inaccuracies and improper and false conclusions. The Hon’ble Supreme Court in this case has dealt with the question on whether the involuntary use of scientific & psychological techniques such as narcoanalysis, brain Electrical Activation Profile (BEAP) and polygraph tests, which aim to enhance investigations, falls within the scope of fundamental rights. These discussions are crucial to ensure that while seeking truth and justice, the rights and dignities of the accused are respected.
This case discusses a new unexplored area of privacy and the guarantee against self-incrimination, which is protected under the Article 20(3) of the Constitution. When the CJI pronounced this judgment, it was further regarded as the Landmark judgment[1]. Mr. Rajesh Mahale, Mr. Manoj Goel, Mr. Santosh Paul and Mr. Harish Salve (Sr. Adv) were arguing against the involuntary administration of the techniques. Mr. Goolam E. Vahanvati,(the then Solicitor General of India and former Attorney general of India) and Sr Adv, Anoop G. Choudhari were appearing on behalf of the Union of India. These were further supported by Sr Adv T.R. Andhyarujina who appeared on behalf of the Central Bureau of Investigation (CBI) and Adv. Sanjay Hegde, who represented the State of Karnataka. Sr Adv. Dushyant Dave,played a vital role as amicus curae.
Key terms:-
A. Narcoanalysis:- This test involves administering a drug to induce anesthesia, leading the subject to disclose normally hidden information, including fantasies, personal wishes, and conflicts[2].
B. Brain Electrical Activation Profile (BEAP):- This technique involves using EEG technique by which a suspect’s participation in a crime is detected by eliciting electrophysiological impulses [3].
C. Polygraph:- The polygraph is a device that measures and records various physiological indicators such as blood pressure, pulse, respiration, and skin conductivity while a person is questioned[4]. It is based on the belief that deceptive answers will produce distinct physiological responses compared to truthful answers.
FACTS OF THE CASE
In 2004, Smt. Selvi, along with many others, filed a criminal appeal which was followed by more appeals in coming years of 2005, 2006, 2007 and 2010. These appeals were taken up by the Supreme Court of India in May, 2010, based on a special leave petition (SLP) jurisdiction of the hon’ble SC under article 136. The appeals raised objections against instances where the accused, suspects, or witnesses were subjected to various tests without their free and fair consent. However it was argued by the opposition that these procedures do not harm the body and the information obtained is used to improve the investigation and as evidence at trial. They claimed these methods were more humane than the traditional “third-degree methods.”
The case involves Selvi’s daughter marrying a man from a different caste against her family’s wishes. In 2004, the man was murdered, and Selvi and two others were suspected. The prosecution sought permission to conduct polygraph and brain mapping tests on the suspects, which was granted. When the results showed deception, the prosecution requested narcoanalysis, which was also approved by the Magistrate. The suspects challenged this decision at the Karnataka High Court but were denied relief. They then appealed to the Supreme Court of India.
The elementary objection raised in appeals was the use of neuroscientific investigative techniques without the free consent of the accused, suspects, or witnesses. The court examined the future impacts of allowing the contested tests to be utilized in various scenarios. Concerns were raised regarding situations where individuals accused, suspected, or serving as witnesses in an investigation were subjected to these methods without their explicit consent[5].
LEGAL ISSUES RAISED
- Whether the involuntary administration of the impugned techniques violates the ‘right against self-incrimination’ enumerated in Article 20(3) of the Constitution[6]?
- Whether the involuntary administration of the impugned techniques violates substantive due process which is part and parcel of the idea of `personal liberty’ protected by Article 21[7]?
- Whether scientific validity of the impugned techniques are entirely reliable?
PETITIONER/ APPELLANT’S ARGUMENTS
The counsels for Petitioner / Appellant submitted that subjecting individuals to neuroscientific procedures under duress violates their right to prevent self-incrimination under Article 20(3). They also suggest that the inclusion of “substantive due procedure” has expanded the scope of “personal liberty” in Article 21.
Moreover, the petitioners claim that Article 21 prohibits harsh, inhumane, or humiliating treatment, and they argue that compelling individuals to undergo the contested procedures would violate this provision. Additionally, they contend that the proposed strategies would infringe upon the test subjects’ rights to physical and mental privacy. The petitioners also question the scientific validity of the examinations, emphasizing their confirmatory nature rather than exploratory.
They argue that there is no basis to trust the evidence obtained through these procedures and cite empirical studies that raise doubts about the reliability of the justifications provided for these techniques. The petitioners cited, the U.S. Supreme Court’s ruling in The United States v. Scheffer[8], In that case, an eight judge majority decided that Military Rule of Evidence 707 (which made polygraph results inadmissible in court-martial proceedings) did not violate an accused person’s right to present a defence.
RESPONDENT’S ARGUMENTS
The counsels for Respondent submitted that using these tests was crucial for helping investigative authorities gather information for evidence and crime prevention. They also claimed that the tests didn’t cause any physical harm and that the data collected was only used for research.
They stressed that the tests were meant for academic purposes only and not for use as evidence in court. The respondents repeated that the main goal was to assist investigations and discourage criminal activities. They also said that administering these tests didn’t harm the subjects and that the data collected was only used for research.
The respondents also stated that the techniques in question would not cause physical harm, and the information gathered could only be used to assist in investigations. They emphasized that this information would not be admissible as evidence during trials. ‘These scientific methods are seen as a more humane alternative to the harsh interrogation methods sometimes used by investigators[9]’.
RELATED LEGAL PROVISIONS & previous rulings
- Article 20(3):- No person accused of any offence shall be compelled to be a witness against himself.
- Article 21:- No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Jaspal v. State of Punjab was related to the effect that finger print examination and its validity as testimony as evidence[10].
JUDGEMENT
The court conducted a detailed analysis of the law in question, examining its history, applications, methodologies, and relevant precedents in both criminal justice and international law. In looking at the right against self-incrimination under Article 20(3), the court concluded that forcing individuals to participate in neuroscientific tests would violate the ban on testimonial coercion.
To ensure the proper conduct of these tests, the court stated that adherence to the requirements of “substantive due process” alongside those of Article 20(3) would be necessary. It noted that comments made inadvertently were more likely to be false, thus violating a person’s integrity and dignity. The court explained that the right against self-incrimination aimed to maintain the reliability of testimony in trials.
Highlighting the connection between the ‘right against self-incrimination’ and the ‘right to a fair trial,’ the court cited Maneka Gandhi v. Union of India[11] to emphasize that these rights, along with substantive due process and the right to a fair trial, should be interpreted together. The court reaffirmed the decision in Sharma v. Satish Chandra[12], stating that Article 20’s protection against testimonial coercion applied universally to anyone accused of an offense. It clarified that the privilege against self-incrimination extended to all, including those formally charged, suspects questioned in criminal cases, and witnesses worried about potential criminal charges.
Addressing M.P. Sharma’s argument that being a witness applied to all voluntary activities, not just oral testimony, the court referred to the standard set in State of Bombay vs. Kathi Kalu Oghad & Others[13]. It affirmed that imparting knowledge through oral or written statements affecting relevant facts would invoke the right under Article 20(3).
The court concluded that involuntarily using neuroscientific methods would result in testimonial reactions falling within the scope of the right under Article 20(3) of the Indian Constitution. While acknowledging the relevance of evidence laws in privacy-related cases, the court emphasized that they could not be used to compel individuals to give up their privacy through physical intrusion. It viewed the elimination of self-incrimination as essential to “personal liberty” under Article 21, highlighting the intersection of Article 20(3) and the right to privacy. The court considered it a violation of privacy rights to subject individuals to such techniques against their will.
When we discuss the evolution of the right to privacy, the court noted that the Indian Constitution did not explicitly mention a “right to privacy” compared to the fourth Amendment act of the United States constitution (1868). It referenced key cases such as State of Uttar Pradesh v. Kharak Singh[14], People’s Union for Civil Liberties v. Union of India[15], Govind v. State of Madhya Pradesh[16], R. Govind v. State of Madhya Pradesh[17], and Raj Gopal v. State of Tamil Nadu[18]. The court the importance of the Sharda v. Dharampal[19] case, recognizing that the right to privacy could be restricted in the face of conflicting interests.
In Sharda v. Dharampal[20], the court in light of the difference between testimonial acts and tangible evidence, considering contemporary circumstances. It concluded that the right to privacy, aimed at protecting the body and geographic locations from invasive state actions, should also consider the potential impact on Article 20(3). The court unequivocally stated that subjecting individuals to disputed practices infringed on their right to privacy. Additionally, it held that using such tests against an individual’s will, even if they were not accused of a crime, would violate their Article 21 right to liberty and protection from humiliating and brutal treatment.
The court ruled that no tests could be conducted without the accused’s consent, which must be obtained in the presence of a judicial magistrate and the accused’s legal representative. The resulting statement would not be considered a confession but rather akin to a statement made to the police. The examination would be conducted by an impartial organization, in the presence of a lawyer, and thoroughly documented.
CONCLUSION & COMMENTS
The hon’ble Supreme Court’s judgement in the subject of criminal-Psychology is a significant milestone in fundamental rights enshrined in the Constitution with respect to personal freedom. The use of impugned techniques, is a violation of the right against self-incrimination under article 20(3) of the Indian constitution, as well as the right to life and personal liberty under Article 21, the bench had concluded on the affirmative aspects of impugned techniques and has provided with the detailed guidelines for the same. The Court’s recognition of the interaction between the right to self-incrimination and the right to a fair trial underscores the importance of ensuring that individuals are not compelled to disclose incriminating information. In addition, the Court emphasizes the right to privacy as an important part of personal freedom in Article 21, emphasizing the need to protect people’s autonomy in mental processes and decision-making. In conclusion, it was held no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. While upholding the dignity and integrity of the individual, the Court’s judgment sets a clear standard for the protection of fundamental rights in the face of evolving investigative techniques.
REFERENCES
Important Cases Referred
State of Uttar Pradesh v. Kharak Singh[21],
People’s Union for Civil Liberties v. Union of India[22],
Govind v. State of Madhya Pradesh[23],
R. Govind v. State of Madhya Pradesh[24],
Raj Gopal v. State of Tamil Nadu[25].
Sharda v. Dharampal[26],
State of Bombay vs. Kathi Kalu Oghad & Others[27].
Sharma v. Satish Chandra[28],
Maneka Gandhi v. Union of India[29],
The United States v. Scheffer[30],
Important Statutes Referred
The Constitution of India, 1950
Criminal Procedure code, 1973
Indian Evidence Act, 1862
[1] ‘Selvi v. State of Karnataka a Critical Analysis by Saikat Bhattacharya’ <https://pure.jgu.edu.in/id/eprint/3045/1/Saikat%20Bhattacharya%202017.pdf> accessed 21 February 2024
[2] Prof.Suresh Bada Math, ‘Supreme Court Judgment on Polygraph, Narco-Analysis & Brain-Mapping: A Boon or a Bane’ (2011) 134 The Indian Journal of Medical Research 4 <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3171915/#:~:text=Narco%2Danalysis%3A%20This%20test%20involves>
[3] Gaudet, Lyn M. 2011. “BRAIN FINGERPRINTING, SCIENTIFIC EVIDENCE, AND DAUBERT: A CAUTIONARY LESSON FROM INDIA.” Jurimetrics: The Journal of Law, Science & Technology 51(3):293–318. Retrieved
[4] J P Rosenfeld (1995). “Alternative Views of Bashore and Rapp’s (1993) alternatives to traditional polygraphy: a critique”. Psychological Bulletin. 117: 159–166.
[5] Chidige Sai Varshitha, ‘SELVI v. STATE of KARNATAKA 2010(7) SCC 263’ (allindialegalforum.com8 September 2021) <https://allindialegalforum.com/2021/09/08/selvi-v-state-of-karnataka-20107-scc-263/> accessed 22 February 2024
[6] Parveen G, ‘The Right to Remain Silent: A Case Commentary on Smt. Selvi v State of Karnataka’ (iPleaders31 October 2019) https://blog.ipleaders.in/right-remain-silent-case-commentary-smt-selvi-v-state-karnataka/ accessed 22 February 2024
[7] 2010 (7) SCC 263
[8] 523 US 303 (1998).
[9] Chidige Sai Varshitha, ‘SELVI v. STATE of KARNATAKA 2010(7) SCC 263’ (allindialegalforum.com8 September 2021) <https://allindialegalforum.com/2021/09/08/selvi-v-state-of-karnataka-20107-scc-263/> accessed 22 February 2024
[10] A.I.R. 1979 S.C 1708
[11] 1978 1 SCC 248
[12] 1954 SCR 1077
[13] 1962 3 SCR 10
[14] AIR 1963 SC 1295
[15] AIR1997SC568
[16] 1975 2 SCC 148
[17] 1975 AIR 1378
[18] 1994 6 SCC 632
[19] (2003) 4 SCC 493
[20] (2003) 4 SCC 493
[21] AIR 1963 SC 1295
[22] AIR1997SC568
[23] 1975 2 SCC 148
[24] 1975 AIR 1378
[25] 1994 6 SCC 632
[26] (2003) 4 SCC 493
[27] 1962 3 SCR 10
[28] 1954 SCR 1077
[29] 1978 1 SCC 248
[30] 523 US 303 (1998).