Continious Evaluation : 1

Selvi V/s State of Karnataka

Academic Year : 2023-24

SUBMITTED BY: SUBMITTED TO:

PRATEEK KOTHARI PROF. ADWITIYA TIWARI
BALLB 5TH YEAR (9TH SEMESTER)
DIVISION- A
URN NO: 2019-B-11062000
SUBJECT: LAW OF EVIDENCE

1
Introduction

In this critical case study, we will examine the well-known ruling in Selvi v. State of
Karnataka, which was founded on the idea that people may outperform technology. The Chief
Justice and his colleague issued a ruling declaring the use of narcoanalysis, brain mapping,
fMRI, and polygraph tests to be unlawful. This case explores a hitherto uncharted area of
privacy and the right not to be used against oneself, which is guaranteed by Article 20(3) of
the Constitution. This decision was further recognised as a landmark decision at the time the
CJI made it.

The aforementioned methods are a fantastic resource offered by contemporary

sciences that are employed to extract crucial information from a person that may then be used
as evidence in court. The evidence gatherer must abide by the Constitution's guidelines,
however the earlier-mentioned methods are below that standard and may be considered
unconstitutional.

Case Information

Brief facts

A criminal appeal was filed by Selvi (the petitioner) and others in the year 2004, and
subsequent appeals were submitted in the following years: 2005, 2006, 2007, and 2010,
which were all taken up by the Supreme Court of India in line with a special leave petition
(SLP) on May 2010. The appeals in this case highlight concerns about occasions in which the
suspect, witness, or accuser was subjected to numerous tests against their will or permission.
They also claimed that using these procedures does not harm the body and the information
obtained from them is only used to enhance the investigation and used as evidence at a trial.
The opposition defended these methods as an extraordinary method to find evidence in the
case where it becomes difficult to gather any evidence. These would be more kind and
humanitarian procedures than the existing "third-degree method," and they would also assist
raise the rate at which a person is charged and acquitted.

2
 Legal Terms used & their history of use;-

Privacy

The issue of privacy is one that has only recently been under debate, and it has only been
utilised a few times. However, throughout the history of the Constitution, this idea has often
been found wanting. Although there are no directly connected privacy rules in the Indian
Constitution, it is widely believed that they are included into Article 21.

Due Process

We should evaluate the procedure used to collect it in order to make sure that the law had
been followed and that it had been applied fairly. The first step in ensuring this is to prevent
coercion and forcing the accused to give an unfree confession1. Long-term surveillance of a
person using a concealed camera is also not regarded as a proper procedure. Due process
ensures that a person's right to privacy won't be violated because it is a basic right 2. The use
of oppressive and arbitrary regulation by the police is prohibited 3. In In other words, the
police cannot operate outside of their constitutionally authorised authority during a legal
procedure4.

Self-Incrimination

According to article 20(3) of the Indian Constitution, any non-volatile act of self-
incrimination performed by the accused is said to as coercion5. In M.P. Sharma v. Satish
Chandra and others6,6 The issue of whether the seizure and search order issued by the court
under section 94 of the Criminal Procedure Code breached the guarantee as outlined in
Article 20(3) of the Indian Constitution arose.

Legal Issues addressed: -

 Is using narcoanalysis, brain mapping, polygraph tests, and other techniques to gather
evidence within the parameters of the constitution justified?

 Whether the procedures employed to obtain new evidence diminish fundamental

protections, such as the right not to be forced to testify against oneself as stated in

1AIR 2005 SC 186; (2008) 2 SCC 370

2 (1963) 372 United States 528; (Basu n.d.)
3 (1936) 297 United States 189
4 (1954) 348 US 26
5 (1952) 342 US 117
6 A.I.R.1954 S.C. page 300

3
 Article 20(3) of the Constitution and Section 161(2) of the 1973 Criminal Procedure
Code?
 Whether the method violates due process or not?
 Whether or not using one of the ways to get access to a person's mental world is
appropriate in this circumstance?
 Whether allowing an accused person, a witness, or a victim to participate in these tests
in order to get justice while bearing in mind the precautions that have been take?

CASE ANALYSIS

The majority of the decision in this case was made by India's top justice, K.G. Balakrishnan.
The Constitution's Article 20(3) on self-incrimination is the main topic he discusses. Despite
being a crucial component of this case, the judgement did not place much emphasis on the
minority side of this, which is privacy and due process. Since it is necessary to extract
information from a source that is not cooperating, effective interrogation techniques have
been studied for a very long time. When the police investigation was analysed, it was
discovered that physical coercion had been employed frequently rather than laborious and
time-consuming methods since it had been shown to be a more effective approach to achieve
outcomes rapidly. The need for effective methods of searching for and detecting deceit has
increased significantly in recent years, and this growth in demand must logically result in an
expansion in the area of criminology.

We can see from the judgement that factors like due process and privacy were not given
significant weight. The court concurs and provides his approval to the arguments put out as to
how to arrive at a reasonable conclusion, although a little more clarification on this matter of
privacy would have been beneficial in comprehending its justification.

Beginning with the invasion of privacy that these tests have a tendency to cause, the
judgement eventually turns to the concept of self-incrimination. The meaning of Article 20(3)
has been extensively contested in court at different levels, and the grounds for privacy have
also been established.

Critical Analysis

4
 The judgment's opening section describes the many test types referenced in the case, how
they are employed, and how the law views the procedure overall. CJI Balakrishnan has cited
other decisions from other countries in which tests were utilised to draw findings. He took
this action since there were no rulings or case laws in India at the time that addressed these
tests. In nations like the United Kingdom and the United States, where case laws are
considered valuable in Indian courts, all these tests were run to determine whether or not they
were constitutional. The employment of the criteria was backed by a number of High Court
decisions, however the Indian Supreme Court disagreed. The High Court of Karnataka
compared the forceful application of article 20(3) with the term "duress," which denotes
imminent bodily harm or threat, and concluded that the pain experienced following the use of
7
an injection for a narcoanalysis test did not meet the standards for forceful application . The
Madras High Court also made a comment about forceful use, stating that it typically entails
using physical force or other third-degree tactics to obtain evidence during an investigation.
The Court also stated that even if the dosage of medication injected during a narcoanalysis is
forceful, the subject voluntarily provides the statement during the test 8.8 Because it believed
the arguments to be more mechanical and that the high courts had not given them much
thought, the Supreme Court rejected the prior arguments as being without merit. The
Supreme Court ruled that the use of tests like narco-analysis, polygraph tests, and other
similar procedures without the subjects' knowledge or consent violated their right to privacy,
and as a result, the judgement was hailed as a landmark decision.

The CJI and his associates claimed that the employment of such forbidden tests violates the
right to self-incrimination. If the results were obtained unlawfully, they cannot be used as
evidence. Article 20(3) of the Indian Constitution protects a person's right to decide whether
to reveal information or to keep quiet, regardless of whether a statement made in the future
establishes the person's culpability or not. The judgement also ruled that article 20(3) was
intended to stop someone from forcibly disclosing preconceived facts relevant to the case.
The result of each of these coercive tactics is tests may be used as testimony and cannot be
used as evidence in court. As a result, if someone is compelled to take such exams, it will
automatically constitute a violation of that person's right to privacy and violate article 20(3)
of the constitution. As a result, if someone is compelled to take such exams, it will
automatically constitute a violation of that person's right to privacy and violate article 20(3)

7 Supra note 2
8 Crl. R.C. No. 259 of 2006

5
 of The Constitution Court concluded that even when a subject wants to be subjected to one of
the tests freely, the findings of such tests cannot be presented as evidence since the subject
was not fully in control of his or her senses throughout the administration of the test.
However, if any evidence was discovered after the test was administered willingly, it may be
presented to the court under section 27 of the Evidence Act.

According to the judgement of the European Court of Human Rights, the idea articulated in
article 20(3) is referred to as a link between several rights in Maneka Gandhi v. Union of
India9.9 Therefore, the judge used this to discuss the relationship of the right against self-
incrimination with the various versions of personal liberty, such as the right to due process
and many more.

It follows that it is imperative to understand and comprehend Article 20(3) of the Indian
Constitution with greater clarity. According to section 161(1) of the Criminal Procedure
Code, a police officer has the power to question a person who is connected to the case but is
unsure of their understanding of its facts. However, during the questioning, the person cannot
ever have the constitutionally guaranteed right taken away from them. The right to quiet also
allows someone to avoid culpability by not speaking out; nevertheless, this right cannot be
used to infer guilt or the concealment of information. Section 313(3) of the CrPC gives the
Court a limited amount of discretion to draw conclusions over the course of a trial by using
silence; it states that the accused cannot hold themselves accountable for not answering
questions or providing misleading information. In accordance with CrpC section 161(2), a
person may use their right to silence while being questioned as part of an inquiry or
interrogation.

The undermined aspect of privacy

With the aid of several precedents, it is also possible to determine if some article 21 rights are
violated when such tests are conducted. The person who may be required to submit to certain
tests in order to establish culpability during any ongoing administrative processes or any civil
actions is not entitled to the privilege against self-incrimination. Another possibility is that
even if someone is forced to take the exams, they won't be held accountable.

9 1978-1-SCC 248

6
 In order to understand these, we need to determine whether the forceful use of such tests are
in agreement with "substantive due process" as it is a base whether all the processes used for
examination by the government we are valid or not. The article 20(3) cannot be invoked
where the individual faces civil consequences after the outcome of the test comes for crimes
like harassment, abuse during custody, etc.

In the case of Maneka Gandhi vs. UOI1010, According to one definition, the right to privacy is
a crucial element of individual personal liberty since it means that the person is free from any
limitations and constraints, even if those are imposed on them by an outside force. Other
rights whose infringements have been explored in the aforementioned case include the right
to a fair trial and the right to cruel treatment.

There are many precedents through we can understand this-.

1) In the case of PUCL vs. UOI1111, it was decided that wiretapping a person's phone by the
police violated their right to privacy. It was not made clear in the case, nevertheless, that
the criminal investigators were forbidden from employing this technique because it could
occasionally be required to thwart or uncover illegal activity. As a result, the controlled
application of such techniques was required.

IN the case of Rochin v California1212, It was said that forcingfully into someone's mental
space in order to obtain information from them was unpleasant to their jaded sensibilities.
Additionally, it may be considered a violation of the person's privacy to use drugged
recording techniques. If a person is aware that such tactics will be used against them, their
conduct or responses will alter. On the other side, the findings may also have an impact on
how the investigators behave. As there have been several instances of the same, they could
harass the individuals, leak the audio or video of them taking the exam, etc. Such events
may have an impact on one's mental health and stigmatise them in society.

2) In the case of D.K. Basu vs. the State of West Bengal, According to the Court, it is
essential to stop authorities from torturing anyone who has been arrested. However, to a
certain extent, the police and other law enforcement agencies can use such coercive
techniques to guarantee that the necessary information is gathered. The right to personal

10 AIR (1978) Scc 597

11 AIR (1997) Sc 568
12
34

7
 liberty does not grant an individual perfect rights; therefore, some limitations are
constantly imposed on an individual and are routinely assessed for reasonableness,
justice, and other factors..

3) The Supreme Court of Israel ruled in a case that torture techniques including sleep
deprivation, electric shocks, and other ones that are also prohibited by the Geneva
Conventions cannot be used when questioning terrorist suspects13.13

Adverse effects of the test concerning privacy:

1. The polygraph test has a lot of flaws, which is why mistakes are commonly made.
The suspected persons' responses are frequently the result of anxiety, fear, etc. It
might be misinterpreted to mean that the speaker is lying.
2. The accused, witness, or victim must be in good mental health because if they are
anxious or sad, they are more inclined to lie, which will only confuse the
interrogator or examiner.
3. Since it is always possible that the individual being questioned is not in a sound
frame of mind or under hypnosis, he or she may divulge false information..
4. On occasion, the individual could have made up a misleading account of an
occurrence. PTSD or when they are asked to recall details of terrible incidents are
the two main causes of this. This results in inaccuracies since the individual cannot
be deemed to be lying because they might not be aware of it.
5. The various test kinds aren't always successful. According to statistics, the majority
of replies made during drug tests are virtually ever relevant to the situation, and
frequently, the person may disclose details about his personal life.
6. The interrogators must be highly skilled and qualified in order to be able to recognise
which information is required throughout the questioning. This is because many
persons who are being tested may still lie while under the influence of drugs, and
because the investigators may provide questions that are specifically meant to frame
the subject.
7. In some circumstances, a person may experience memory loss between the time the
crime or incident occurred and the dates of the next tests. As the induvial is unaware
of the facts, the outcome in this case would be useless.

13 H.C. 5100 / 94 1999

8
 All questions and concerns concerning the validity of various tests, including polygraph
and narcoanalysis, have been resolved in light of the Supreme Court's decision that utilising
force is prohibited since it amounts to harsh and unpleasant treatment. A person (whether
they are the accused, a witness, or a suspect) has the choice not to incriminate themselves at
any stage of the trial. Numerous foreign verdicts were used in this case because there were
no landmark rulings, which helped us grasp the reliability of these tests and scientific
procedures.

The Supreme Court has delegated authority over a number of issues, including when and
how frequently such tests may be employed. The use of these tests was primarily left to be
optional and only when required. There may be circumstances where someone is forced to
undergo testing, making the decision laughable.

Judgments after the case of Selvi vs. State of Karnataka in which these tests were used to
gain evidence to reach an outcome.
1. K.M. Seema Azad vs. State of Uttar Pradesh1414: Another term for this case is
the Shashi murder case. In this instance, the CJM authorised the police to
conduct a narcoanalysis test in attempt to learn more details about the
murderer. After the test, it was found that the co-accused had given the
accused the order to phone the victim and have her strangled at a remote
location. The statement that was recorded indicates that the accused were
imprisoned and are still there.
2. Nupur Talwar vs. CBI and Another1515: This case doesn't need an
introduction because it is one of the most well-known murder cases in
history. The investigation cannot continue since there is not much evidence
to back the claims. An examination of Nupur's narcotic use and Rajesh
Talwar's was conducted. Due to the fact that they both knew about the
crime, there was no conclusion even after the tests. The case further placed
the justice system on the defence by highlighting the necessity to enhance
the standard of forensic science in the court system because the present
authorities in the country were not properly trained.

14 HC NO.1055 OF 2011
15 AIR 2012 (Crl) No(s).2982/2011 SCC 68

9
 The Supreme Court left the prospect of using the tests open in the Selvi case, which
is what the aforementioned two rulings suggest. The necessity of these tests is still
determined on a case-by-case basis.

Conclusion

No matter how beautifully crafted a judgement may be, it would always be subject to
criticism in the Indian judicial system. The Selvi v. State of Karnataka case fits under the
same theoretical framework. Even though this case established a method and served as a
landmark judgement, it is nevertheless met with criticism. There is always room for criticism
while discussing a court ruling so that people may express their opinions. One of the greatest
illustrations of how a neutral judgement may be offered is the judgement that was just
mentioned.

10
References
 Basu, D.D. n.d. Commentary on the Constitution of India.
 Berman v. Parker. 1954. 348 (26).
 Dinesh Dalmia vs State. 2006. Crl. R.C. No. 259
 Director of Revenue vs. Mohammad N. Holia. 2008. 370 (2).
 K.M. Seema Azad vs. State of Uttar Pradesh. 2013. (Allahbad High court, April 22).
 Lyunman v. Illionois. 1963. 372 (528).
 Maneka Gandhi v. Union of India. 1978. 248 (Supreme Court of India).
 Maneka Gandhi v. Union of India. 1978. 597 (Sumpreme Court of India).
 Nupur Talwar vs. CBI and Another. 2012. 68 (Supreme Court of India).
 Public Union of Civil Liberties vs UOI. 1997. 568 (Supreme Court of India).
 Stefanelli v. Minard. 1952. 342 (117).
 Treigle v. Acme Homestead Association. 1936. 297 (189).
 Public Committee Against Torture in Israel v. State of Israel . 1999. 5100/94 (High
court of Israel).

11