CASE ANALYSIS ON: Smt.Selvi and Ors. V. State of Karnataka2010 (7) SCC 263

Overview

Selvis daughter Kavita had married Shivakumar of a different caste against the wishes of her family. Shivakumar was killed in 2004, and Selvi and two others became the suspects. Since the prosecutions case was solely depended on circumstantial evidence, it sought the courts permission to conduct polygraphy and brain mapping tests on three persons. The court granted permission and the tests were conducted. When the results of polygraphy test indicated signs of deception, the prosecution again sought courts permission to perform narcoanalysis on three persons. The magistrate directed those three persons to undergo narcoanalysis. The decision of the magistrate was challenged in Karnataka High Court, and no relief was granted. They went on an appeal to the Supreme Court. The Supreme Court held that compulsory brain mapping and polygraph tests and narcoanalysis were in violation of Articles 20(3) and 21 of the Constitution.In the Judgement it was held that thecompulsoryadministration of the impugned techniques violates the right against self-incrimination and also that hetestresults cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20 (3) of the Constitution protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory.The Bench also said that Article 20 (3) aims to prevent the forcibleconveyanceof 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.The Bench held that if these techniques were used compulsorily it would violate Article 20 (3).The Bench made it clear that even when the subject had given consent to undergo any of these tests, the test results by themselves could not be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with thehelpof voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act.As mentioned earlier, the right against self-incriminationis now viewed as an essential safeguard in criminal procedure.Its underlying rationale broadly corresponds with twoobjectives firstly, that of ensuring reliability of thestatements made by an accused, and secondly, ensuring thatsuch statements are made voluntarily. It is quite possible thata person suspected or accused of a crime may have beencompelled to testify through methods involving coercion,threats or inducements during the investigative stage. When aperson is compelled to testify on his/her own behalf, there is ahigher likelihood of such testimony being false. Falsetestimony is undesirable since it impedes the integrity of thetrial and the subsequent verdict. Therefore, the purpose of therule against involuntary confessions is to ensure that thetestimony considered during trial is reliable. The premise isthat involuntary statements are more likely to mislead thejudge and the prosecutor, thereby resulting in a miscarriage ofjustice. Even during the investigative stage, false statementsare likely to cause delays and obstructions in the investigationefforts.

Ratio Decidendi :

Compulsory involuntary administration of the Narcoanalysis, Polygraph examination and the Brain Electrical Activation Profile (BEAP) violates the right against self- incrimination enumerated in Article 20(3) of the constitution as the subject does not exercise conscious control over the responses during the administration of the test.

Article 20(3) is not only a trial right but its protection extends to the stage of investigation also.

Provisions of Section 27 of the Evidence Act are not within the prohibition under Article 20(3) unless compulsion has been used in obtaining the information and any information or material that is subsequently discovered with the help of voluntary administered test results to be admitted.

ISSUES

A. Whether the involuntary administration of the impugned techniques violates the `right against Self-incrimination' enumerated in Article 20(3) of the Constitution?

1-A. Whether the investigative use of the impugned techniques creates a likelihood of Incrimination for the subject?

2-A. Whether the results derived from the impugned techniques amount to `testimonial compulsion' thereby attracting the bar of Article 20(3)?

B. 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?

RULE OF LAW

Article 20(3) of the Constitution - No person accused of any offence shall be compelled to be a witness against himself. Clause (3) of Article 20 declares that no person accused of an offence shall be compelled to be a witness against himself. This provision may be stated to consist of the following three components:1. it is a right pertaining to a person accused of an offence 2. it is a protection against compulsion to be a witness; and 3. it is a protection against such compulsion resulting in his giving evidence against himself.

Article 21 of the Constitution No person shall be deprived of his life and personal liberty except in accordance to the procedure established by law. Article 21 is a welfare piece of legislation its extent is time and again extended. No fundamental right was ever interpreted with so much wisdom and acuteness as of article 21. In the instant case Article 21 is interpreted to derive the relationship between Right to fair trial and Personal liberty.

Section 27 of The Indian Evidence Act, 1872 How much of information received from accused may be provedProvided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

Section 73 of TheIndianEvidence Act, 1872Comparison ofsignature, writing or seal with others admitted or proved.In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of theCourtto have been written or made bythat personmay be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. 1[This section applies also, with any necessary modifications, to finger-impressions.]

Section 179. of TheIndianEvidence Act, 1872Refusing to answer public servant authorised to questionWhoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both

Section 161 in The Code OfCriminal Procedure, 1973161.Examinationofwitnessesby police.(1)Anypolice officermaking an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.(2)Such person shall be bound to answer truly all questionsrelatingto such case put to him by suchofficer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty orforfeiture.(3)The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and truerecordof the statement of each such person whose statement he records.

Section 313 of The Code Of Criminal Procedure, 1973 313. Power to examine the accused.This section empowers the Court to question the accused. But, the provisio provides that the accused cannot be punished if he refuses to answer the same.

Section 315 in The Code Of Criminal Procedure, 1973 315. Accused person to be competent witness.This section provides that the accused can be a competent witness. However, the accused has a right of silence. The non-evidence of the accused will no way is prejudicial to the accused. The adverse inference cannot be inferred from the refusal of the accused to step into the box.

ANALYSIS

A. Whether the involuntary administration of the impugned techniques violates the `right against Self-incrimination' enumerated in Article 20(3) of the Constitution? Article 20(3)[footnoteRef:2] of the Constitution provides for the right to Self incrimination. The privilege against self incrimination is a fundamental canon of Common law criminal jurisprudence.[footnoteRef:3] One of the most prevailing views today is that subjecting the accused to undergo the test, as has been done by the investigative agencies in India, is considered by many as a blatant violation of Art. 20(3). The aim of the Criminal justice system is to promote efficiency in investigation and prosecution, thus maintaining public safety. However, with the current emphasis on right of the accused to remain silent, the task of prosecutors and investigators has been made increasingly difficult. [2: Article 20(3): No person accused of any offence shall be compelled to be a witness against himself.] [3: Verma, Sonakshi., The Concept of Narcoanalysis In View Of. Constitutional Law And Human Rights,]

In the case of Rojo George v. Deputy Superentendent of Police , the Court while allowing a Narco Analysis test observed that in present days the techniques used by the criminals for commission of crime are very sophisticated and modern. The conventional method of questioning may not yield any result at all. That is why the scientific tests like polygraph, brain mapping, narco analysis, etc. are now used in the investigation of a case. When such tests are conducted under strict supervision of the expert, it cannot be said that there is any violation of the fundamental rights guaranteed to a citizen of India.The Doctrine of Self incrimination under article 20(3) is available only against any person accused of any offence. However, under Section 161 (2) of the CrPC, any public servant can compel any person to reveal relevant information in order to expose all persons of criminal worthiness except his accomplice and himself. If such information is revealed in police custody by an accused, s.27 of the Indian Evidence Act will be attracted. Further, Section 179 of the IPC which talks about punishment if a person refuses to answer any public servant authorised to question.[footnoteRef:4] Even this section does not distinguish between an accused or merely a witness or a suspect. [4: Goel, Ashish, Indian Supreme Court in Selvi v. State of Karnataka: Is a Confusing Judiciary Worse than a Confusing Legislation? (January 30, 2011), Journal of Law and Politics in Africa, Asia & Latin America, (2011) Vol. 44, No. 4, Available at SSRN: http://ssrn.com/abstract=2063920]

The judgment of an eleven-judge bench in the case of State of Bombay v Kathi Kalu Oghad[footnoteRef:5] where it was observed that It is well established that clause (3) of Article 20 is directed against self-incrimination by the accused person. Self-incrimination must mean conveying information based upon personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in the controversy, but which do not contain any statement of the accused based on his personal knowledge. There is no compulsion when a police officer, in investigating a crime against, a certain individual, asks him to do a certain thing. The fact that a person was in police custody when he made the statement is not a foundation for an inference that he was compelled to make the statement. The mere questioning of an accused by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion. [5: AIR 1961 SC 1808]

The Criticism against the doctrine of Self Incrimination is that Section 53 of the CrPC as amended in 2005 allows for medical examination by means of the use of modern and scientific techniques including DNA profiling and such other tests. By applying the rule of Ejusdem Generis terms ...such other tests, it can be interpreted that the legislatures intent was to include all upcoming medical examinations like Narcoanalysis etc. in order to examine an accused to afford evidence as to the commission of an offence. In my view if there are some advanced techniques used in investigation process in order to achieve justice, such techniques should be encouraged and should not taken as a bar against various constitutional provisions.

1-A. Whether the investigative use of the impugned techniques creates a likelihood of Incrimination for the subject?

In the case of Kathi Kalu Oghad., it is observed that to bring a statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, anytime after the statement has been made.

A major argument against such discovery of facts under Section 27 leading to the likelihood of self incrimination is that such results are admissible only if they are not obtained under compulsion.The question as to what constitutes incrimination for the purpose of Article 20(3) is highlighted in Nandini Satpathy v, Dani and others.,[footnoteRef:6]answers that would in themselves are conviction but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Relevant replies which furnish a clear and real link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Article 20(3) if elicited by pressure from mouth of the accused. An answer acquires confessional statement only if, in terms or substantially all the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3) strikes at confession and self incrimination but leaves untouched other relevant facts. [6: (1978) 2 SCC 424]

Yet another argument against the right to self incrimination in case of these tests is that S.161 (2) of the CrPC and Article.20 (3) share a common purpose i.e. to prevent forcible conveyance of personal knowledge relevant to the facts in issue. However, Article.20 (3) and 161(2) of the CrPC ensure protection against involuntary self incrimination but not involuntary incrimination of any other person[footnoteRef:7]. It follows that compulsion is justified to extract information, in or outside police custody, which incriminates any other person not being the subject himself or his accomplice. Involuntary administration of such tests can be lawful if administered to extract information from persons who are supposed to be acquainted with the facts and circumstances of the case but are not exposing themselves or their accomplices, if any, to a criminal charge by such revelation. [7: Abhyudaya Agarwal & Prithwijit Gangopadhyay, Use Of Modern Scientific Tests In Investigation And Evidence: Mere Desperation Or Justifiable In Public Interest?, [2009] NUJS Law Rw 2, ]

It can be concluded that any person other than a person facing formal accusation does not have a fundamental right against self incrimination but only a statutory right against involuntary self incrimination flowing from s.161 (2) of the CrPC and also that Any person acquainted with the facts of a case can be compelled to be a witness in that case. But such compulsion shall not be to expose him or his accomplices to a criminal charge, whether directly or indirectly.

2-A. Whether the results derived from the impugned techniques amount to `testimonial compulsion' thereby attracting the bar of Article 20(3)?

In Dinesh Dalmia v State , the Court observed that where the accused had not allegedly come forward with the truth, the scientific tests are resorted to by the investigation agency. Such a course does not amount to testimonial compulsion. From the above discussion, it is very evident that conducting a Narco Analysis test does not violate Article 20 (3) per se. Only after conducting the test, if the accused divulges information which is incriminatory, then it will be hit by Article 20(3).Testimonial compulsion can also be waived off in cases where the tests may indicate that the subject is concealing information pertaining to a particular topic, although the exact content of the information is not revealed. This was held in the case of Ramchandra Reddy v. State of Maharashtra[footnoteRef:8] [8: 2004 All MR (Cri) 1704]

In the instant case the court explained as to what constitutes testimonial compulsion for the purpose of Article 20(3). The court made an observation on M.P Sharma v. Satish Chandra.,[footnoteRef:9] The phrase used in Article 20(3) is to be a witness. A person can be a witness not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of dumb witness. To be a witness is nothing more than to furnish evidence. These observations suggest that the phrase to be a witness is not confined to oral testimony for the purpose of invoking Article 20(3) and that it includes certain non-verbal forms of conduct such as the production of the documents and the making of intelligible gestures. Also in State of Bombay v. Kathi Kalu Oghad and Ors,[footnoteRef:10] B.P Sinha, C.J observed that To be a witness may be equivalent to furnishing evidence in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of body by an accused person for purpose of identification. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not to be a witness. To be a witness means imparting knowledge in respect of relevant fact, by means of oral statement or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said to be a witness to a certain state of facts which has to be determined by a court or authority authorized to come to decision, by testifying to what he has seen or something which he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion as an expert, in respect of matters in controversy. [9: (1954) SCR 1077] [10: (1962) 3 SCR 10]

In the present case the court held that In order that a testimony by an accused person may be said to have been self incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also actually doing so. In other words, it should be a statement which makes the case against accused person atleast probable, considered by itself.

B. 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?

Article 21 of the constitution guarantees the life and liberty of a person. It is contended that involuntary application of these techniques are against this right to liberty. In Dinesh Dalmia v. State[footnoteRef:11], it was categorically held that scientific tests are a response to the objections that human rights are violated by the use of various kinds of third-degree methods, and that these scientific tests do not involve testimonial compulsion. The Bombay High Court in Abdul Karim Telgis case has held that the suffering and pain in these cases is only minimal.[footnoteRef:12] [11: 2006 Cri.L.J. 2401 (Mad.)] [12: MANU/MH/0463/2004]

The court in the instant case commented on the impugned tests which entails the physical confinement of the subject, because any form of restraint on personal liberty, howsoever slight it may be, must have a basis in law. It touched on the aspects such as right to privacy and right against cruel and inhuman and degrading treatment and also right to fair trial.

The court discussed the decision given by the U.S supreme court in Rochin v. California,[footnoteRef:13] where it was held that use of involuntary verbal confessions in state criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the due process clause even though statements in them may be independently established as true. Coerced confessions offend the communitys sense of fair play and decency. [13: 342 US 165 (1952)]

The bench also commented on the analogy between the pin prick of a needle for extracting blood sample and the intravenous administration of drugs such as sodium pentathol. In Paul H. Breithaupt v. Morris Abram[footnoteRef:14] it was held that there is nothing brutal or offensive in taking a blood sample. It was held that compelled extraction of blood samples in the course of a medical examination does not amount to conduct that shocks the conscience. And it discussed the applicability of right to privacy and safeguarding the right against cruel and inhuman or degrading treatment. [14: 342 US 432 (1957)]

Compulsory administration of these techniques should be permitted at least for purposes of investigation, and if the test results lead to the discovery of fresh evidence, then these fruits should be admissible under Section 27 of the Indian Evidence Act. These test results could also support the theories or suspicions of the investigators in a particular case and confirm suspicions about a person's involvement in a criminal act. In M.P. Sharma v Satish Chandra[footnoteRef:15], the Supreme Court has pointed out that the immunity offered by Article 20(3) is available only when the police or other investigating authorities, compel the person to do a volitional act to obtain information. Thus the element of compulsion is present when the person is actually forced to make a certain revelation by the authorities under threat or duress etc. But in these tests, the accused is not forced to confess or to depose to a particular fact. [15: [1954] SCR 1077]

CONCLUSION

The court held that the compulsory administration of the impugned techniques violates the `right against self- incrimination'. The 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. 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. I criticize the judgement of the Supreme Court as it is the need of the hour to develop various advanced technological methods in order to achieve justice. If a person is suspected to have some information regarding the commission of an offence, there should be no prohibition on conducting a Narco Analysis test on him as the protection under Article 20 (3) is available only to a person accused of an offence. If there is some help being provided by the way of these tests to the investigative agencies then such methods should be encouraged rather than being criticized. The supreme court is from the point of view of various constitutional provisions right in its decision but it should have had also considered the various aspects necessary for criminal justice system.

It also held that forcing an individual to undergo any of the impugned techniques violates the standard of sustantative due process which is required for restraining personal liberty. Such violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a penal nature. In todays complex social milieu with proliferating crimes against the society and the integrity of the country, it is necessary to keep in mind the interest of the society at large and the need for a thorough and proper investigation, as against individual rights, while ensuring that the individual constitutional rights are not infringed. If these tests are properly considered to be steps in the aid of investigation and not for obtaining incrimination statements, there is no constitutional infirmity whatsoever. The larger public interest and the scope for developing new investigative tools in criminal investigation should also be kept in mind.

Testimonial compulsion will be justifiable where the needs of the public should supersede the needs of an individual as given under Article 20(3)[footnoteRef:16]. Control of crime is an essential and legitimate goal of the state and that the brain mapping and the lie detector test in any case are restricted to external contact with the body of the accused and do not really amount to a violation of his or her bodily autonomy[footnoteRef:17]. Their investigative use is justifiable since there is a compelling public interest in eliciting information that could help in preventing criminal activities in the future. Such utilitarian considerations hold some significance in light of the need to combat terrorist activities, insurgencies and organised crime. It has been argued that such exigencies justify some intrusions into civil liberties, including subjecting an unwilling accused to medical examination. The textual basis for these restraints could be grounds such as preserving the `sovereignty and integrity of India', `the security of the state' and `public order' among others. For example, investigations into the July 11, 2006, train blasts in Mumbai and the subsequent blasts in Malegaon were successful only because of the revelations made by individuals during Narco-analysis.[footnoteRef:18]It goes further to state that Narco-analysis has also taken the place of preventive forensics, because it has helped the administration take steps to prevent further planned blasts in Malegaon and Karnataka.[footnoteRef:19] [16: Barto, Michal and Mates, Pavel,. Public Versus Private Interest Can the Boundaries Be Legally Defined? (March 30, 2011).] [17: Ramchandra Reddy v. State of Maharashtra, MANU/MH/0067/2004 (Bom)] [18: Bannur Muthai Mohan, Misconceptions About Narco Analysis ] [19: Id]

The manner in which modern-day criminals make use of science and technology in perpetrating their criminal activities with relative impunity has compelled rethinking on the part of the criminal justice establishment to seek the help of the scientific community to come to the help of the police, prosecutors and the courts. The criminal procedure, rules of evidence, and the institutional infrastructure designed more than a century ago, are now found inadequate to meet the demands of the scientific age. The absence of a national policy in criminal justice administration in this regard, is felt to be a serious drawback. The Evidence Act may need to be amended to make scientific evidence admissible as substantive evidence rather than opinion evidence and establish its probative value, depending on the sophistication of the scientific discipline concerned.

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