The case of Selvi v. State of Karnataka, decided by a three-judge bench in 2010, is the Supreme Court’s most recent – and by far most detailed – engagement with Article 20(3)[1]. Selvi’s case includes numerous complaints challenging three investigative techniques: Narco-Analysis, Polygraph Testing, and Brain Electrical Activation Profile. All these tests are used as investigative techniques to make an accused confess his crime but the nature of these processes is important. In Narco-Analysis, the process of injecting the drug into the bloodstream of the subject sends him into a hypnotic state, lowers his inhibitions, and allows him to disseminate information. Polygraph tests, on the other hand, measure different physiological responses (breathing, blood pressure, blood flow, etc.) during questioning, and determine the truth or truth of the subject’s expressions, based on the variability of those responses. Similarly, the Brain Electrical Activation Profile (BEAP) test measures the responses within the brain, to determine whether the subject has received a specific stimulus.
In the year 2004,Smt. Selvi and others filed the first set of appeals followed by subsequent appeals in the year 2005, 2006, and 2007 and 2010 which were clubbed together and heard by the honorable court on 5th May 2010 under a special petition leave. The copy of this judgment is a voluminous one of 256 pages. In the current case of criminal appeals, objections have been raised regarding cases in which suspects, suspects, or investigating witnesses have been examined in these trials without their consent. Such measures are protected by highlighting the importance of providing information that can help investigative agencies prevent future criminal activity and in cases where it is difficult to collect evidence in standard ways. It has also been argued that administering these methods does not cause physical harm and that the information released will only be used to reinforce investigative efforts and will not be accepted as evidence during the trial phase.
Hence, the petitioners clubbed all the petitions filed previously under a special petition leave and the matter was taken before the court and the primary argument from the petitioner’s side was that this was violative of their right against self- incrimination guaranteed under Article 20(3) of the Constitution of India. Every person has the right to be heard fairly and his/her evidence should be free from any type of duress or external pressure otherwise a person’s right to free and fair trial or justice will be denied and here all three tests are blatant violations of their basic human rights as in all three cases a person’s response to any type of investigative question cannot be considered to be given freely and willfully, one substantial line of argument was that it also violates a person’s right to privacy which is inherently one of the most important rights guaranteed to the Constitution of India. In the case of Govind Singh v. State of Madhya Pradesh,[2]it was held that the rights and freedoms of citizens are outlined in the Constitution evidence to guarantee that the individual, his personality, and those things that are entrenched in his personality will be free from official interference unless there is a proper basis for intervention. In this sense, many basic rights of citizens can be defined as a part of the right to privacy.Henceforth, the petitioner side insisted on the fact that there was a grave invasion of privacy as whatever amount or type of information that was extracted from the accused, it cannot be considered as acquired righteously and with his consent. They also contested that the whole point of these tests was to make the person delusional and make him confess without his full mental capacity which in turn violates his/her right against self-incrimination and it cannot be considered as piece of a valid or credible evidence to hold a person liable, hence they wanted that usage of such techniques should be removed from general practiceand no accused shall be compelled to do anything which he/she would have otherwise denied by his free will. Stress was also laid on prohibiting these practices immediately, given the physical and psychological effects of it on the accused.
However, the arguments and contentions from the respondent side had a different connotation attached to it altogether. It sidelined all the aspects of Part III and covered a person’s basic rights. They only talked about the benefits of these tests and how easy it was for the investigators to conduct them.It was contended that extracting such information can help the investigating agencies to prevent criminal activities in the future and circumstances wherein it becomes difficult to gather evidence through ordinary means. They heavily relied on certain provisions of the Code of Criminal Procedure, 1973[3] and the Indian Evidence Act, 1872[4] to refer back to the responsibilities placed on citizens to fully cooperate with investigation agencies. They also stated that no bodily harm was done by their application and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage and will lead to improvements in fact-finding during the investigation stage and thereby helping to increase the rate of prosecution as well as the rate of acquittal any benefiting as a whole.
They also performed arguendo to petitioner’s contention of right against self-incrimination by stating 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).
The Honorable Court in a landmark judgment held that the main purpose of the test was to broadly correspond 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 behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict.Therefore, the purpose of the Rule against Involuntary Confessionsis 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. Hence it cannot be any sense stated as beneficial to the whole trial and acquittal system. The court also recognized the fact that there has been an infringement of the right to privacy as the judicial understanding of privacy in our country has mostly stressed the protection of the body and physical spaces from intrusive actions by the State. While the criminal justice system and the law of evidence mandate the interruption of physical privacy through legal provisions that allow arrest, arrest, search, and robbery among others, the same cannot be the basis for forcing a person to transmit personal information about relevant facts’. The notion of the relation of rights warrants that the right to anti-engagement should also be read as part of ‘personal freedom’ under Article 21. Therefore, our understanding of the ‘right to privacy’ should result in its inconsistency with Article 20 (3). Besides, the ‘law against voluntary confession’ enshrined in Sections 24, 25, 26, and 27 of the Evidence Act, 1872 seeks to provide both the purposes of the trust and the commitment of the evidence presented in the last case.
So, in conclusion, CJI Balakrishnan said that “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”[5].
Author’s view:
The author believes that this is one of the most significant cases that has ever come across Indian judiciary as it simultaneously deals with scientific complications and progress made through these investigative tests but also makes sure that basic human rights provided to a person should not be tampered with, the judgment is very detailed and comprehensive in showing that, however beneficial may all three tests look prima facie but in the end, they violate a person’s right against self-incrimination. It can be easily observed that all three Justices gave huge emphasis to Article 20(3) of the constitution dealing majorly with the aspect of self-incrimination. But the minority aspect, that is,appropriate privacy and procedure do not seem to have been given the most important position in this election even though they are an important and important part. The author often agrees and acknowledges this contradiction and the approach taken to reach a certain point but a very narrow emphasis on the judgment in judgment would have been very helpful in measuring the cause. The reason for the interpretation of 20 (3) was time and time again and was challenged by several high courts. The second reason is that the reasons for maintaining privacy are found in this case without unreasonable doubt. The judgment in its first paragraph covered how each of these tests violated the Privacy Policy. But in the end, gets diverted towards self-incrimination but it can be considered reasonable as the right to privacy has been addressed several times before in various instances and in this case, the main contentions from both sides were related to right against self-incrimination hence, special attention towards this matter can be justified.
But this case dealt with a very important issue of rights of an accused which otherwise is very latent in itself and it affects the public at large but does not generally attract public attention as much. So, the Judiciary deserves appreciation in this case as the executive tried to prove the benefits of involuntary application on an accused but judiciary stood its ground firm as guardian of the Constitution and observed that even if the rights in contentions are of accused and criminals but still this won’t violate their basic rights and they will be preserved till they are stripped by due process of law.
[1]Constitution of India,1949.
[2]Govind Singh v. State of MP[1975 AIR 1378].
[3]Code of Criminal Procedure, 1973.
[4]Indian Evidence Act, 1872.
[5] Indconlawphil.wordpress.com.
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