Narco-Analysis Test and the right against self incrimination with
special reference to Selvi and other vs. state of Karnataka
Introduction
We live in a world which is very dynamic and changes at a high pace and hence
growth becomes an unavoidable factor. One of the most important and significant
development can be noticed in the field of science and technology.
One such advancement in the field of science and technology that we are here
concerned about is the use of scientific techniques such as Narcoanalysis
(NARCO), Polygraph examination (PE) and the Brain Electrical Activation
Profile Test (BEAP).
These days these techniques are being used in various fields for various purposes
but we here are concerned with the use of these techniques in the criminal justice
system. These techniques help the investigating authorities to get relevant
information from the accused, but now the word consent comes into picture.
The accused are involuntarily administered to these test and hence a whole set of
question arise regarding the violation of human rights and fundamental rights of
the accused.
The landmark judgment of Smt. Selvi vs. state of Karnataka AIR 2010 SC
raises some important legal issues with respect to the involuntary administration
of these techniques and this case also set up clear stand that should be taken care of
while using these techniques.
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Self-Incrimination
There is are some amount of history associated with Article 20(3) of the
constitution. Compulsion means duress and it may be physical or mental. Any
non-volitional positive act of an accused incriminating himself would be
compulsion within the meaning of Article 20 (3) violating the guarantee so
granted under Constitution of India .
The expression ‘to be a witness’ has been subject matter of Judicial decisions and
has been interpreted even differently till the year 1961 despite Supreme Court’s
decision in M.P. Sharma v. Satish Chandra and others, a case which was
decided by a Bench of 8 Judges of Supreme Court of India. In this case the
question was as to Ehether the order as to search and seizure under section 94
Cr.P.C. was violative of guarantee under Article 20 (3) of the Constitution.
The court in this case observed that section 139 of the Indian Evidence Act
which says that a person producing a document on summons is not a witness was
not a guide to meaning of word ‘witness’.
The word “witness” in its natural sense is to be understood to mean a person who
furnishes evidence. A person can be a witness not merely by giving oral evidence
but also by producing documents or making intelligible gestures in the case of
dumb witness (Section 119) or the like. The court held that production of
document In compliance with a notice to produce it would be testimonial act by
that person but the same would not amount to compelled production of the
document. The court was not called upon to answer the similarity between
production of document under the direction of court by notice or in other manner
and that every document would not become evidence unless admitted or proved
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and the direction to give handwriting, thumb impression, finger print etc. or to
expose the body for measurement or give blood – for testing etc., as such there was
no discussion on the point.
Background of the case
Smt. Selvi and Ors v. State of Karnataka, is a criminal appeal in the supreme court
of India bearing criminal Appeal No 1267 of 2004. The case talks about the legal
questions related to the involuntary administration of certain scientific techniques,
namely narcoanalysis, polygraph examination and the Brain Electrical
Activation Profile (BEAP) test for the purpose of improving investigation efforts
in criminal cases.
The case gives emphasis on major legal issues including privacy and personal
liberty, self-incrimination and substantive due process
Main legal issues
The main legal issues that were raised in the court regarding this appeal were:
1. Whether the involuntary administration of the impugned techniques
violates the ‘right against self-incrimination’ enumerated in Article 20(3)
of the Constitution?
2. Whether the investigative use of the impugned techniques creates a
likelihood of incrimination for the subject?
3. Whether the results derived from the impugned techniques amount to
‘testimonial compulsion’ thereby attracting the bar of Article 20(3)?
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4. 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?
Judgement
A three-judge bench including the then chief justice of India, K.G. Balakrishnan, J.
RV Raveendran and J. JM Panchal held that involuntary administration of the
impugned techniques violates the ‘right against self-incrimination’
“This 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.”
Also, the court held that it violates the basic human right of an individual as the
forcible administration of these techniques amounts to cruelty and is an intrusion
of mental privacy. The bench ruled that involuntary administration of the
impugned techniques violates the standard of substantive due process as given
under article 21
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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. 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”
The court also highlighted the guidelines that are laid down by the National Human
Rights Commission for the administration of the polygraph test on the accused.
The court held that these guidelines should be strictly adhered to for all kinds of
such techniques.
Case Analysis of the case
The majority of the judgement was provided by K.G. Balakrishnan C.J.I. gives
huge emphasis to Article 20(3) of the constitution dealing majorly with the aspect
of self-incrimination. But the minority aspect i.e. Privacy and due process has not
seemed to have been given as important a position in this whole judgement
although it forms an integral and important part of it.
The search for effective aids to interrogation is probably as old as man’s need to
obtain information from an uncooperative source and as persistent as his
impatience to shortcut any tortuous path. In the annals of police investigation,
physical coercion has at times been substituted for painstaking and time consuming
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inquiry in the belief that direct methods produce quick results.
The field of criminology has expanded rapidly during the last few years, and the
demand for supplemental methods of detecting deception and improving the
efficiency of interrogation have increased concomitantly.
However the minority aspect covers basic elements of constitutionality like privacy
and due process and from the judgement we find that lesser emphasis has been laid
on these aspects.
I agree and consent upon both the contentions and the path take to reach the
rationale however a little more emphasis on privacy in the judgment would have
been really helpful in balancing the reason.
In the case grounds of privacy gets established beyond reasonable doubt. The
judgement at its initial stage had covered how test like narco analysis and brain
mapping violate the principles of Privacy, But in the end gets diverted towards
self-incrimination.
Critical analysis of the judgment given in
Smt. Selvi vs. State of Karnataka
Smt. Selvi and Ors. Vs. State of Karnataka is a landmark judgment in the history
of Indian judiciary, the judgment starts with detail description of narcoanalysis,
polygraph test and BEAP test including the scientific, legal, ethical and moral
aspects also. Then a number of cases have been discussed and cited the majority of
which were foreign as the issue is new to our country and relevant citations were
not available.
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The three basic contentions that have been raised in the judgment are-
1) The involuntary administration of the impugned techniques violates
article 20(3) of the Indian Constitution.
Article 20(3) states that ; “No person accused of any offence shall be compelled
to be a witness against himself.”
Article 20(3) of the Indian constitution talks about the right against self-
incrimination.
It says that the accused cannot be forced to be a victim against himself, now when
we talk about the administration of scientific techniques like NARCO, BEAP etc.
on the accused in order to carry forward the investigation process by recording the
testimony regarding the case, we mean that the person would be under the
influence of certain chemicals because of which he is supposed to answer the
relevant details and would not be able to lie. This can be considered good to fasten
the investigation process as it would save time and energy of the investigating
authorities which is being wasted in extracting true information from the accused.
But considering the fact that there is no consent involved in this procedure, we
can deduce that the accused is being forced and compelled to give testimony
against himself.
The basic rationale behind right against self-incrimination is to maintain the
integrity of the judicial process, to forbid false testimony and to achieve a fair trial.
And forcing administration of such techniques on the accused would not solve the
purpose whereas it would raise questions of integrity on our trails. It is being
repeatedly argued that the statements made by the victims during the test are not
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used against themselves but the statements are used to carry forward the
investigation. The bench is of the following opinion on this-
“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.”
A number of provisions from CRPC including sec 161(2) talk about an accused’s
right to remain silent and that he/she should not be forced to give any testimony
which might result into penal provisions against himself.
“The protective scope of Article 20(3) read with Section 161(2), CrPC guards
against the compulsory extraction of oral testimony, even at the stage of an
investigation.”
2) The involuntary administration of the impugned techniques violates
the right to privacy and personal liberty as given under article 21 of the
Indian constitutin.
Article 21 states that: “Protection of life and personal liberty No person shall be
deprived of his life or personal liberty except according to procedure established
by law”
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The concept of privacy is still new to India and it has only found its place under
article 21 of the constitution and to understand the scope of privacy and on what
grounds its violations can take place we need to understand that whether the
involuntary administration of any of these tests is compatible with the
constitutional guarantee of substantive due process.
“In light of these conclusions, we hold that no individual should be forcibly
subjected to any of the techniques in question, whether in the context of an
investigation in criminal cases or otherwise. Doing so would amount to an
unwarranted intrusion into personal liberty Forcing an individual to undergo any
of the impugned techniques violates the standard of ‘substantive due process’
which is required for restraining personal liberty.”
The impugned tests put a restraint on personal liberty in a number of ways. Firstly,
by confining a person against his will at the time of conducting the test. Secondly,
it infringes a person’s mental privacy by subjecting him to a drug which induces
him to make revelations. This brings us to one another aspect of privacy i.e. when
we talk about personal liberty we are not always concerned with physical barriers.
Privacy also includes mental privacy, the right to choose, a person’s right to remain
silent and to choose what to speak and forcing a person to confess something under
the administration of certain drugs. Through this, we can create an interrelation
between article 20(3) and article 21 of the Indian Constitution i.e. right against
self-incrimination should be read as a part of the right to personal liberty.
“An individual’s decision to make a statement is the product of a private choice
and there should be no scope for any other individual to interfere with such
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autonomy, especially in circumstances where the person faces exposure to
criminal charges or penalties.”
Therefore, taking into account all the necessary and relevant contentions the author
is of the view that the involuntary administration of the impugned techniques
violates a person’s right to personal liberty and right against self-incrimination.
3) The involuntary administration of the impugned techniques is against
basic human rights.
The author is of the opinion that the judges are nowhere wrong in highlighting the
strict need to follow the guidelines laid by the National Human Rights Commission
for administration of such tests as it has been proved in various studies that the
pain a person goes through during these tests is equivalent to the third degree
torture given to the criminals.
“Judgments such as D.K. Basu v. State of West Bengal, have stressed upon the
importance of preventing the ‘cruel, inhuman or degrading treatment’ of any
person who is taken into custody.”
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CONCLUSION
A decision no matter how well made is always subject to criticism just because
there is always scope of improvement. The same applies to the judgment of Selvi
v. State of Karnataka. Although it is one of the most landmark judgement of its
time but still when there is constitutionality and democracy criticism is ought to
come up. Moreover when it comes to judicial decision there is always this scope
open for critics to pool in their views. But compared to others this is one of those
few judgments where the critics might find it difficult to find a lacunae. The
judgement is perfect example of just and neutral decision.
This limited exception for admitting into evidence is due to the principle that
“fruits of the poisonous tree” casts a shadow on the Court’s otherwise progressive
judgment. This same principle has been applied to this present case with just
reasons.
In my including words I would like to say that techniques like narco analysis ,
brain mapping, and polygraph test are violative of individuals right to life and
liberty under article 21 and to the concept of self incrimination under article 20(3)
of the Indian constitution.
These techniques are thus held to be unconstitutional in the case of selvi vs. state
of Karnataka.
This landmark judgment holds its validity for ages to come. And I strongly agrees
with the decision taken by the bench and believes that humanity and constitutional
morality should be kept above all.
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