By Supallab Chakraborty, Symbiosis Law School, Pune
“Editor’s Note: The paper is a critical analysis of the landmark judgment of Selvi v. State of Karnataka inasmuch as it deals with the evidence given by narco-analysis, FMRI and polygraphs to be inadmissible.“
“It has become appallingly obvious that our technology has exceeded our humanity.” –Albert Einstein
True; but the judgement this commentary will be dealing with namely Smt. Selvi v. State of Karnataka has given a good fight on behalf of humanity against technology. The judgement delivered by the then Hon’ble Cheif Justice himself and two of his other companion judges rendered the practise of narcoanalysis, brain mapping, FMRI and polygraph test to be unconstitutional and void. One of its kinds; this judgement given by a three judges bench deals primarily with an all new aspect of privacy and right against self-incrimination’ protected by Article 20(3) of the constitution. In short this is a landmark judgement in the history of Indian Judiciary.
Narcoanalysis, Brain Electrical Activation Profile (BEAP), Functional Magnetic Resonance Imaging (FMRI) and Polygraph are those boons of modern medical science which are being followed as an alternative to third degree to tap out information that can be used as evidence out of the accused. However there are some standards set by the constitution which anyone gathering evidence has to adhere to and the actions mentioned above manages to violate all of these standards and could be easily held unconstitutional.
Facts of the Case
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 were taken up together by the honourable bench of Supreme Court via special leave petition on 5th May 2010. It is a voluminous judgement of 256 pages. In this present batch 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 these 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.
III. LEGAL ASPECTS INVOLVED & THEIR HISTORY
Although this aspect of privacy is all new and one of the first of its kind but the concept of privacy is a well battered topic in the history of Indian Constitution. There is no express provision for Privacy in the Indian Constitution but the concept is known to be imbibed in the provision of right to life and liberty guaranteed by Article 21 of the Constitution of India in Part III.
The aspect has found its mention in the case Kharak Singh v. State of U.P. which laid down the foundation of Privacy where a Supreme Court bench of seven judges was required to decide the constitutionality of certain police regulations which allowed the police to conduct domiciliary visits and surveillance of persons with a criminal record. The petitioner in this case had challenged the constitutionality of these regulations on the grounds that they violated his fundamental right to privacy under the ‘personal liberty’ clause of Article 21 of the Constitution. In this case a majority of the judges refused to interpret Article 21 to include within its ambit the right to privacy part the majority stated “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III.” The majority however did recognise the common law right of citizens to enjoy the liberty of their houses. The majority therefore understood the term ‘personal liberty’ in Article 21 in the context of age old principles from common law while holding domiciliary visits to be unconstitutional. Two of the judges of the seven judge bench, however, saw the right to privacy as a part of Article 21, marking an early recognition of privacy as a fundamental right.
The question of privacy as a fundamental right presented itself once again to the Supreme Court a few years later in the case of Govind v. State of Madhya Pradesh. The petitioner in this case had challenged, as unconstitutional, certain police regulations on the grounds that the regulations violated his fundamental right to privacy. Although the issues were similar to the Kharak Singh case, the 3 judges hearing this particular case were more inclined to grant the right to privacy the status of a fundamental right. Justice Mathew stated that “Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.”
These cases were known more famously as midnight surveillance cases. At a later stage many other issues cropped up in relation to privacy. One such case is R. Rajagopal v. State of Tamil Nadu laid down the foundation for balancing right of freedom of speech and expression in relation to right to privacy. Similarly Mr. ‘X’ v. Hospital ‘Z’ laid down the rules of privacy available to a HIV+ patient. But in this case what is more relevant aspect to the case of Selvi v. State of Karnataka is the aspect of search and seizure of police authority and to the extent it can curtail right to privacy of a citizen. In the case of District Registrar and Collector v. Canara Bank it was held that it is a right to let alone and every citizen has the right to safeguard the privacy of his own. Any right to privacy must encompass and protect personal intimacies at home.It has been held that ‘unreasonable search and seizure’ amounted to violation of right to privacy especially when no guidelines are issued as to person who may be authorized to search the place and under what circumstances and when there are laws which are sufficient to meet the requirement.
One thing necessary to ensure that entire process of due process has been conformed with fundamental fairness is by judging the way evidence has been obtained. One principle of ensuring fundamental fairness is that the accused shall not be convicted upon coerced or involuntary confession.An extension of this principle has led to the holding that evidence obtained through force or by means which ‘shock the conscience’ shall be inadmissible. Installation of cameras in a person’s bedroom and watching over the person over a considerable long time is not a eligible process of collecting evidence, in fact its violative of privacy ensured by Article 21. The guarantee of Due Process that the security of one’s privacy in his own home against arbitrary is a basic to free society. The regulations imposed in the exercise of Police Power must not be arbitrary and oppressive. In other words police power must be exercised subject to constitutional limitation, including due process.
There is also 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 by the founding fathers. 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 which at that stage had a strength of 8 Judges only. In Sharma’s case the question was as to whether 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 the said 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 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.
After the said case various High Courts interpreted and applied or distinguished the case of Sharma (Supra) and took even contrary view. Different Benches in three High Courts took opposite views and at least in two High Courts different Benches took contrary views. Section 73 of the Indian Evidence Act which authorises court to give direction to give handwriting, 3 finger print etc. was read and applied differently.
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with one which Is to be proved although that signature, writing or seal has not been produced or proved for any other purpose. The court may direct any person present in court to write any words or figures for the purpose enabling the court to compare the words or figures, alleged to have been written by such person.
A Division Bench of Calcutta High Court in Shallendra Nath Sinha v The State with reference to section 73 Evidence Act held that an order to accused to give specimen hand writing did not amount to compelling the accused to give evidence and distinguished Sharma’s Case (Supra) on the ground of being a case in respect of search warrant for production of documents.
But the above view was dissented to by same High Court in Farid Ahmad v. State and Tarini Kumar v. State. In first one it was held that taking of specimen writing and signature of accused would mean furnishing of incriminating evidence against himself positively and volitionally and not mere passively and no such order in justified under section 73 Evidence Act, while in the latter it was held that taking of specimen handwriting was violative of Article 20 (3) as there was no provision in CrPC, 1973 which permits police to take specimen handwriting from accused so as to furnish evidence against himself . According to these judgments, only if an incriminating statement was in fact made and then admitted as evidence could a potential violation occur. The Delhi High Court went further to state that statements made during microanalysis could be admitted as evidence in court as corroborative evidence.
Cases decided by various High Courts again reached the portals of Supreme Court of India and the cases were considered by a Bench of 11 Judges. The majority consisting of 8 Judges disagreed in certain respects with the law laid down by Supreme Court in Sharma’s case (Supra) while the minority view (3 Judges) agreed with it to some extent. The law laid down by the Supreme Court in the said case of State of Bombay v. Kathu, still holds good and was followed in subsequent decisions. In Kathu Kalu’s case the majority held that to be a ‘witness’ may be equivalent to furnishing evidence in the sense of making oral or written statements but in the larger sense of the expression giving of thumb impression or impression of palm or foot or finger or specimen writing or exposing a part of body by an accused person for purpose of identification are not included in the expression ‘to be a witness. The Constitution makers may have intended to protect the accused person from the hazards of self-incrimination in the light of English Law on the subject.
The proposition laid down by the Supreme Court in Sharma’s case included not only oral evidence but also documentary evidence which he may be compelled to produce. The majority in Kathu Kalu’s case has narrowed down the proposition in respect of documentary evidence to written statements conveying the personal knowledge of the accused relating to the change against him. The protection would not extend to other documents like statements of other person in his custody or document showing handwriting of accused or containing foot which do not contain the personal knowledge relating to charge against him or may incriminate other person.
The Constitutional guarantee under Article 20(3) as interpreted in Kathu Kalu’s case in the matter of handwriting, thumb impressions etc. has not been changed in view of Supreme Court on the point of evidentiary value of thumb impression.
Even If In the case of thumb 6 Impression, court comes to definite conclusion after examining thumb Impression, the same would not be in the nature of personal testimony and could not be included in the definition of ‘to be a witness’. The reasons given in majority judgment and minority judgment so far as ‘to be a witness against himself’ Is concerned still hold good.
MAIN LEGAL ISSUES INVOLVED
- Whether narcoanalysis, brain mapping, FMRI and polygraph test could be used as a constitutionally valid method of gathering evidence.
- Whether these evidence gathering scheme result in dilution of constitutional rights such as the ‘right against self-incrimination under article 20(3) of the Indian Constitution and Section 161(2) of Code of Criminal Procedure, 1973.
- Whether the procedure undertaken be considered violative of “substantive due process”.
- Whether the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual.
- Whether a person is allowed to take voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place.
- Whether the information so sought being inculpatory or exculpatory affect the principles of protection from self incrimination.
DECISION BY THE JUDGES
The following judgements were delivered by the judges’ honourable bench namely K.G. Balakrishnan C.J.I and R.V. Raveendran J. and J.M. Panchal J. The Supreme Court mainly on the grounds founded upon the rights conferred by Article 20(3) came to this trendsetting landmark judgement. The judgement so delivered can be summarised as follows:-
K.G. Balakrishnan C.J.I
Some of the pertinent observations made by the Chief Justice himself worth noting and summarized as follows are:-
- As mentioned earlier, ‘the right against self-incrimination’ is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring 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. 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.
- The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage. The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. If we were to permit the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the ‘right against self-incrimination’ will be rendered meaningless. The law confers on ‘any person’ who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course.
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 these techniques. Conversely, a person who has been forcibly subjected to these techniques could be confronted with the results in a subsequent interrogation, thereby eliciting incriminating statements.
- We must also account for circumstances where a person who undergoes the said tests is subsequently exposed to harmful consequences, though not of a penal nature. We have already expressed our concern with situations where the contents of the test results could prompt investigators to engage in custodial abuse, surveillance or undue harassment. We have also been apprised of some instances where the investigation agencies have leaked the video-recordings of narcoanalysis interviews to media organisations. This is an especially worrisome practice since the public distribution of these recordings can expose the subject to undue social stigma and specific risks. It may even encourage acts of vigilantism in addition to a ‘trial by media’.
- We must remember that the law does provide for some restrictions on ‘personal liberty’ in the routine exercise of police powers. For instance, the CrPC 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’.
- So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person ‘to impart personal knowledge about a relevant fact’. 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). 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 along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. 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 autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.
- 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’.
- 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 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. 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.
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 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. The author tends to agree and consent upon both the contentions and the path taken to reach the rationale however a little more emphasis of privacy in the judgement would have been really helpful in balancing the reason. The reason being the interpretation of 20(3) has been time and time again been challenged by several high court. The second reason being that the grounds of privacy gets established in this case beyond reasonable doubt. The judgement at its initial stage had covered how each of these test violate the principles of Privacy. But in the end gets diverted towards self-incrimination.
The judgement begins with a full fledged description of the concerned different kinds of test mentioned herein, their uses, and limitations and last but not the least its standing in front of the eyes of law. Justice Balakrishnan in his judgement has taken into reflected foreign precedents applicable to these tests before reaching to a conclusion. The reason for using foreign cases is due to absence of substantial case laws or statutes that expressly deal with this topic. Each of these test were scrutinized in relation to its constitutionality in different constitutions especially that of U.K. and U.S. courts which have persuasive value in the Indian Courts. There were high court cases which had justified the use of such tests however The Supreme Court rejected these arguments. The High Courts had used various arguments to uphold the constitutionality of narcoanalysis and other tests under Article 20(3). For example, the Karnataka High Court equated the compulsion requirement of Article 20(3) with ‘duress’ involving serious physical harm or threat, and found that the mild pain from the administration of an injection necessary to induce the narcoanalysis test did not reach the requisite level of hurt to constitute compulsion. Using a similarly narrow view of ‘compulsion’, the Madras High Court found that because compulsion generally means using physical or other so-called third degree methods of interrogation, even though a subject may be forced to undergo narcoanalysis in the first place, the statements made during the resulting tests themselves are voluntary. Further, the High Courts of Karnataka, Bombay and Delhi found that the administration of narcoanalysis itself could not violate Article 20(3) because statements could not be known to be incriminating until after the administration of the test. However these judgements mentioned above were considered to be too mechanical and baseless and as quoted “given without application of mind” by the Supreme Court. It was landmark initiative by the bench to hold the tests of this nature unconstitutional. It came off as major blow to investigating agencies, when the Supreme Court held the use of narco analysis, brain-mapping and polygraph tests on accused, suspects and witnesses without their consent as unconstitutional and violation of the ‘right to privacy’.
The judges said: “The compulsory administration of the impugned techniques violates the right against self-incrimination. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20 (3) of the Constitution [No person accused of any offence shall be compelled to be a witness against himself] protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory.” The Bench said: “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.” Further it was notified in the judgement that “In their considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy.” The Bench held that if these techniques were used compulsorily if would violate Article 20 (3). The Bench made it clear that even when the subject had given consent to undergo any of these tests, the test results by themselves could not 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.”
In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights, since this approach was recognised in Maneka Gandhi v. Union of India. Hence, the judges have examined the `right against self-incrimination’ in respect of its relationship with the multiple dimensions of `personal liberty’ under Article 21, which include guarantees such as the `right to fair trial’ and `substantive due process’. Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. Section 161(1) of CrPC empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. It is to ensure the citizens’ cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons. The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself or herself liable to punishment by refusing to answer such questions, or by giving false answers to them. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person’s silence during the trial stage.
The undermined aspect of Privacy
The second issue is whether the involuntary administration of these tests offends certain rights that have been read into Article 21 by way of judicial precedents. The `right against self-incrimination’ does not protect persons who may be compelled to undergo the tests in the course of administrative proceedings or any other proceedings which may result in civil liability. It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others. In order to account for these possibilities, we must examine whether the involuntary administration of any of these tests is compatible with the constitutional guarantee of `substantive due process’. The standard of `substantive due process’ is of course the threshold for examining the validity of all categories of governmental action that tend to infringe upon the idea of `personal liberty.
In Maneka Gandhi v. Union of India, it was held that the right to privacy `is an essential ingredient of personal liberty’ and that the right to `personal liberty is `a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.
The contentions before us have touched on aspects such as the `right to privacy’ and the `right against cruel, inhuman and degrading treatment’. It is also structured around the right to fair trial which is an essential component of `personal liberty’.
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. In People’s Union for Civil Liberties v. Union of India, it was held that the unauthorised tapping of telephones by police personnel violated the `right to privacy’ as contemplated under Article 21. However, it was not stated that telephone-tapping by the police was absolutely prohibited, presumably because the same may be necessary in some circumstances to prevent criminal acts and in the course of investigation. Hence, such intrusive practices are permissible if done under a proper legislative mandate that regulates their use.
The decision given by the U.S. Supreme Court in Rochin v. California, recognised the threshold of `conduct that shocks the conscience’ for deciding when the extraction of physical evidence offends the guarantee of `due process of law’. It was held that illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents-this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.
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 these techniques. Conversely, a person who has been forcibly subjected to these techniques could be confronted with the results in a subsequent interrogation, thereby eliciting incriminating statements.
We must also account for circumstances where a person who undergoes the said tests is subsequently exposed to harmful consequences, though not of a penal nature. The test results could prompt investigators to engage in custodial abuse, surveillance or undue harassment. We have also been apprised of some instances where the investigation agencies have leaked the video-recordings of narcoanalysis interviews to media organisations. This is an especially worrisome practice since the public distribution of these recordings can expose the subject to undue social stigma and specific risks. It may even encourage acts of vigilantism in addition to a `trial by media’.
Therefore, it is considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the `right against self-incrimination’.
Honourable Supreme Court in 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. We must remember that the law does provide for some restrictions on `personal liberty’ in the routine exercise of police powers. 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. 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 Supreme Court of Israel in Public Committee Against Torture in Israel v. State of Israel, where it was held that the use of physical means (such as shaking the suspect, sleep-deprivation and enforcing uncomfortable positions for prolonged periods) during interrogation of terrorism suspects was illegal.
In respect of the present case, referring to the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR) and Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, it was held by the Supreme Court that any person who is forcibly subjected to the impugned tests in the environs of a forensic laboratory or a hospital would be effectively in a custodial environment for the same. The presumption of the person being in a custodial environment will apply irrespective of whether he/she has been formally accused or is a suspect or a witness. Even if there is no overbearing police presence, the fact of physical confinement and the involuntary administration of the tests is sufficient to constitute a custodial environment for the purpose of attracting Article 20(3) and Article 21.
Limitations of tests in respect to privacy
- 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.
- Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained.
- The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offer highly disparate physiological responses which could mislead the examiner.
- In some cases the subject may have suffered from loss of memory in the intervening time-period between the relevant act and the conduct of the test. When the subject does not remember the facts in question, there will be no self-awareness of truth or deception and hence the recording of the physiological responses will not be helpful.
- Errors may also result from `memory-hardening’, i.e. a process by which the subject has created and consolidated false memories about a particular incident. This commonly occurs in respect of recollections of traumatic events and the subject may not be aware of the fact that he/she is lying.
- It does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information. Some studies have shown that most of the drug-induced revelations are not related to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects’ personal lives.
- It takes great skill on part of the interrogators to extract and identify information which could eventually prove to be useful. While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. 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’. Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the `narcoanalysis’ technique.
- Another significant limitation is that even if the tests demonstrate familiarity with the material probes, there is no conclusive guidance about the actual nature of the subject’s involvement in the crime being investigated. For instance a by- stander who witnessed a murder or robbery could potentially be implicated as an accused if the test reveals that the said person was familiar with the information related to the same.
- Furthermore, in cases of amnesia or `memory-hardening’ on part of the subject, the tests could be blatantly misleading. Even if the inferences drawn from the `P300 wave test’ are used for corroborating other evidence, they could have a material bearing on a finding of guilt or innocence despite being based on an uncertain premise.
We may conclude that the verdict of Supreme Court has finally settled all the conflicts regarding the constitutionality of Narcoanalysis, Brain-Mapping, and Polygraph Tests by prohibiting involuntary administration of such tests, holding them to be “cruel, inhuman and degrading treatment”. It was further held that Right of self-incrimination is available to a person both at investigation and trial stage. Protection not only covers accused but suspects also, even witnesses. It is a detailed judgement including the references of numerous foreign judgements, providing with an excellent legal point of view on the validity of the impugned scientific techniques, which must be appreciated.
Scope of unanswered questions
The judgement despite the remarkable decision and brilliant rationale behind the same leaves some very obvious unanswered questions. The first and most important is that what kinds of mandate will the judgment have on the investigative bodies and how prudently will it be followed. The judgment has left scope for these tests of this sort to be administered if it is done voluntarily but that also leads to scope for problems too. . The Supreme Court left open the possibility for abuse of such tests when it provided a narrow exception, almost as an afterthought, namely that information indirectly garnered from a “voluntary administered test” – i.e. discovered with the help of information obtained from such a test – can be admitted as evidence. While this exception is narrow in the sense that it can apply only when a fully informed individual gives truly voluntary consent to undergo any of the tests, the granting of the exception does not harmonize with the Court’s clearly stated belief that information obtained even during a voluntarily administered test is not voluntarily given. The exception, based on the assumption that voluntarily taken tests will be truly “voluntary”, is problematic.
The power of the police to coerce suspects and witnesses into “voluntarily” doing or not doing certain things is well-known. It is highly probable that the same techniques will be applied to get suspects or witnesses to “agree” to narcoanalysis and other tests, resulting in a mockery of the essence of the Supreme Court’s judgment. It is widely agreed, for example, that the D.K. Basu guidelines prescribing the treatment of persons in custody are implemented mainly in the breach; they merely adorn signboards inside police stations, a farcical, one-point ‘compliance’ with Supreme Court’s comprehensive list of directives.
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 judgement of Selvi v. State of Karnataka. Although it is one of the most trendsetting and 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.
Formatted on 22nd March 2019.
 Criminal Appeal 1267 of; 2004 2010(7) SCC 263
 1964 SC 332
 People Union of Civil Liberties v. Union of India; AIR 1991 SC 207, 211
 AIR 1975 SC 1378
 1994 SCC (6) 632
 AIR 1999 SC 495
 Supra 2
 AIR 2005 SC 186; Director of Revenue v. Mohammad Nissar Holia; (2008) 2 SCC 370
 Lyunman v. Illionois; (1963) 372 US 528; Commentary on the Constitution of India by D.D. Basu
 Stefanelli v. Minard; (1952) 342 US 117
 Supra 9
 Supra 10
 Treigle v. Acme Homestead Association;(1936) 297 US 189
 Berman v. Parker;(1954) 348 US 26
 Supra note 11, at 10.
 A.I.R.1954 S.C. page 300
 A.I.R.1955 Cal 247
 A.I.R.1960 Cal32
 A.I.R. 1960 Cal318 (DB)
 Ram Chandra Ram Reddy v. Maharashtra, Criminal Writ Petition No. 1924 of 2003,; Sh. Shailender Sharma v. State, Crl. WP No. 532 of 2008
 Sh. Shailender Sharma v. State, Crl. WP No. 532 of 2008, at 37
 A.I R 1961 S.C.1808
 Ibid. at 169, 192
 The Constitution of India, 1950, Art.20 (3).
 In the case, Smt. Selvi & Ors. v. State of Karnataka, at 165, 223.
 Supra note 11, at 10.
 Dinesh Dalmia v. State, Crl. R.C. No. 259 of 2006 and Crl. M.P. Nos. 1518 and 1519 of 2006.
 (1978) 1 SCC 248
 AIR 1978 SC 597
 AIR 1997 SC 568
 342 US 165 (1952)
 AIR 1997 SC 610
 H.C. 5100 / 94 (1999)
 For an overview of the limitations of these neuroscientific techniques, see: John G. New, `If you could read my mind – Implications of neurological evidence for twenty-first century criminal jurisprudence’, 29 Journal of Legal Medicine 179-197 (April-June 2008)
 The concept of narcoanalysis in view of constitutional law and human rights by sonakshi verma accessed on 17th July 2010 available at http://www.rmlnlu.ac.in/content/sonakshi_verma.pdf
 DK Basu v State of West Bengal, (1997) 1 SCC 416, at 22.