Selvi & Ors. v. State of Karnataka (2010) - Scientific Techniques like Narco Analysis vis-a-vis Article 21


Court :

Brief :
The court held that the tests violated the accused person’s right against self-incrimination under Art.20 (3), and the right to life and personal liberty under Art. 21.

Citation :
Citation: AIR 2010 SC 1974

  • Bench: K.G. Balakrishnan, R.V. Raveendran, J.M. Panchal
  • Appellant: Selvi
  • Respondent: State of Karnataka

Issues

  1. Whether the results derived from the impugned scientific techniques like narco analysis, polygraph examination and the brain electrical activation profile (BEAP) test amount to ‘testimonial compulsion’
  2. 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.

Facts

  1. The appellant filed appeals in the years 2005, 2006, 2007 and 2010.
  2. The appeals were filed in order to raise objections in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to narco-analysis and polygraph tests without their consent.
  3. The appellant’s contentions were based on the grounds of the provisions of Art. 21 of the Constitution, stating that these tests denied the accused, suspects or witnesses the right to life and personal liberty.
  4. The matter is now before the Supreme Court.

Appellant’s contentions

  1. The appellant contended that these techniques contributed to use of third degree methods by investigators, thereby violating the provisions of Art. 20(3) of the Constitution.
  2. The counsel for the appellants have submitted that causing physical pain by injecting a drug can amount to `Injury' as defined by Section 44 of the Indian Penal Code or `Hurt' as defined in Section 319 of the same code.
  3. The counsel for the appellants have contended that the Parliament was well aware of the impugned techniques at the time of the 2005 amendment of the Criminal Procedure Code and consciously chose not to include them in the amended Explanation to Sections 53, 53-A and 54 of the Criminal Procedure Code.
  4. It was reasoned that this choice recognised the distinction between testimonial acts and physical evidence. While bodily substances such as blood, semen, sputum, sweat, hair and fingernail clippings can be readily characterized as physical evidence, the same cannot be said for the techniques in question.
  5. This argument was supported by invoking the rule of `ejusdem generis' which is used in the interpretation of statutes. This rule entails that the meaning of general words which follow specific words in a statutory provision should be construed in light of the commonality between those specific words.

Respondent’s contentions

  1. The counsel for the respondents contended that the actual administration of either the narcoanalysis technique, polygraph examination or the BEAP test does not involve a condemnable degree of `physical pain or suffering'.
  2. Citing the importance of extracting information, the respondents contended that these can help the investigation agencies to prevent criminal activities in the future and in circumstances wherein it becomes difficult to gather evidence through ordinary means.
  3. The counsel for the respondents contended that test results could also support the theories or suspicions of the investigators in a particular case. These results could very well confirm suspicions about a person's involvement in a criminal act.
  4. The respondents contended that these tests will lead to improvements in fact-finding during the investigation stage.
  5. The respondents also contended that the information extracted through these techniques cannot be equated with testimonial compulsion because the test subject is not required to give verbal answers, thereby falling outside the scope of Article 20(3).

Judgment

The court held that the tests violated the accused person’s right against self-incrimination under Art.20 (3), and the right to life and personal liberty under Art. 21.

Relevant paragraphs

This is a trendsetting case that leads to questions of when the individual becomes the accused and the state becomes the interrogator and whether the use of these techniques violates the standard of substantive due process.

  • In our considered opinion, 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. This Court has recognised 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 categorised as material evidence.

  • We are also of the view 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 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 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. We have also elaborated how the compulsory administration of any of these 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, placing reliance on the results gathered from these techniques comes into conflict with the `right to fair trial'. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the `right against self-incrimination'.

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Gnaneshwar Rajan
on 01 March 2021
Published in Others
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