“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.”
[Case Brief] Selvi & Ors vs State of Karnataka & Anr.
Selvi & Ors vs State of Karnataka & Anr.
Criminal Appeal No. 1267 of 2004
Supreme Court of India
CJI, K.G. Balakrishnan; J, R.V. Raveendran; J, J.M. Panchal
5 May, 2010
Article 20(3) of the Constitution of India 1949; Article 21 of the Constitution of India 1949; Section 53 of the Code of Criminal Procedure, 1973; Section 161 of the Indian Evidence Act, 1872
- BRIEF FACTS AND PROCEDURAL HISTORY:
- In the year 2004 Smt. Selvi and others filed the first batch of criminal appeal followed by subsequent appeals in the year 2005, 2006 and 2007 and 2010, and all the appeals were clubbed together by the Hon’ble Bench of Supreme Court imparting judgment in consonance to special leave petition.
- In this present case clubbed up togetherness of criminal appeals, objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent.
- Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future as well as in circumstances where it is difficult to gather evidence through ordinary means.
- It has also been urged that administering scientific techniques does not cause any bodily harm and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage.
- The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is that these scientific techniques are a softer alternative to the regrettable and allegedly widespread use of ‘third-degree methods’ by investigators.
- ISSUE BEFORE THE COURT:
- Whether the involuntary administration of the impugned techniques violates the ‘right against self-incrimination’ enumerated in Article 20(3) of the Constitution?
- 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?
- RATIO OF THE COURT
- The court observed that Polygraph tests have several limitations and therefore a margin for errors. The premise behind these tests is questionable because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions.\
- The court after referring the status of the test in various countries observed that this is especially worrying, since investigators who are under pressure to deliver results could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the ‘hypnotic stage’.
- The court observed that he interrelationship between the ‘right against self incrimination’ and the ‘right to fair trial’ has been recognized in most jurisdictions as well as international human rights instruments.
- The court observed that the practice of requiring the accused persons to narrate or contest the facts on their own corresponds to a prominent feature of an inquisitorial system, i.e. the testimony of the accused is viewed as the ‘best evidence’ that can be gathered.
- The court referred Nandini Satpathy’s case, (1978) 2 SCC 424 where it was held that Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station.
- Reliance was placed on the provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to fully cooperate with investigation agencies.
- It has also been urged that administering scientific techniques does not cause any bodily harm and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal.
- It was indicated that, ‘The right against self-incrimination’ is an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives– firstly, that of ensuring the reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false.
- The court laid down that the ‘right against self-incrimination’ protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated.
- It was too indicated that the false testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the ‘rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.
- It was also discussed that the distinction between inculpatory and exculpatory evidence gathered during the investigation is relevant for deciding what will be admissible as evidence during the trial stage.
- The court finally observed the results obtained from tests such as polygraph examination and the BEAP test should also be treated as ‘personal testimony’, since they are a means for ‘imparting personal knowledge about relevant facts’. Hence, the conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of ‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).
- The Hon’ble Court observed that there are several ways in which the involuntary administration of either of the impugned tests could be viewed as a restraint on ‘personal liberty’. The most obvious indicator of restraint is the use of physical force to ensure that an unwilling person is confined to the premises where the tests are to be conducted. Furthermore, the drug-induced revelations or the substantive inferences drawn from the measurement of the subject’s physiological responses can be described as an intrusion into the subject’s mental privacy. It is also quite conceivable that a person could make an incriminating statement on being threatened with the prospective administration of any of scientific techniques.
- The Court, while remembering the facts imparted that the law does provide for some restrictions on ‘personal liberty’ in the routine exercise of police powers. For instance, the Code of Criminal Procedure incorporates an elaborate scheme prescribing the powers of arrest, detention, interrogation, search and seizure. A fundamental premise of the criminal justice system is that the police and the judiciary are empowered to exercise a reasonable degree of coercive powers. Hence, the provision that enables Courts to order a person who is under arrest to undergo a medical examination also provides for the use of ‘force as is reasonably necessary’ for this purpose. It is evident that the notion of ‘personal liberty’ does not grant rights in the absolute sense and the validity of restrictions placed on the same needs to be evaluated on the basis of criterion such as ‘fairness, non-arbitrariness, and reasonableness’.
- The Hon’ble Court also enshrined that the theory of interrelationship of rights mandates that, the right against self-incrimination should also be read as a component of ‘personal liberty’ under Article 21. Hence, our understanding of the ‘right to privacy’ should account for its intersection with Article 20(3) of the Indian Constitution, 1949. Furthermore, the ‘rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution of India, 1949 along with the principles of evidence law leads us to a clear answer.
- In the considered opinion of the Hon’ble Supreme Court of India, the compulsory administration of the impugned techniques violates the ‘right against self-incrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. The Court has recognized that the protective scope of Article 20(3) of the Indian Constitution, 1949 extends to the investigative stage in criminal cases and when to 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) of the Indian Constitution, 1949 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) of the Indian Constitution, 1949 aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’ & each of the impugned tests bear a ‘testimonial’ character and they cannot be categorized as material evidence.
- The Hon’ble Court also opined that forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether scientific 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 non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of ‘ejusdem generis’ and the considerations which govern the interpretation of statutes in relation to scientific advancements.
- The Court also brought into elaboration on how the compulsory administration of any of scientific techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms. Furthermore, any techniques come into conflict with the ‘right to a fair trial’. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self-incrimination’.
- It was also considered by the Hon’ble Supreme Court 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, they did 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. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.
- DECISION HELD BY COURT:
- No individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. The National Human Rights Commission had published `Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ in 2000 should be strictly adhered to and similar safeguards should be adopted for conducting the `Narco-analysis technique’ and the `Brain Electrical Activation Profile’ test. The text of these guidelines has been reproduced below:
- No Lie Detector Tests should be administered except on the basis of the consent of the accused.
- If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implications of such a test should be explained to him by the police and his lawyer.The consent should be recorded before a Judicial Magistrate.
- During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
- At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a `confessional’ statement to the Magistrate but will have the status of a statement made to the police.
- The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
- The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
- A full medical and factual narration of the manner of the information received must be taken on record.
The present batch of appeals is disposed of accordingly.