Smt. Selvi & Ors. vs State of Karnataka
- ByPravleen Kaur --
- 05 May 2025 --
- 0 Comments
I. Introduction
This judgment by the Supreme Court of India deals with the legality and constitutional validity of involuntarily administering 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 court examined the tensions between efficient investigation and individual liberties, particularly the right against self-incrimination enshrined in Article 20(3) of the Constitution of India. [Paragraph 1]
II. Background
A. Narcoanalysis Technique
Narcoanalysis involves the intravenous administration of sodium pentothal, a barbiturate that induces a hypnotic trance and lowers inhibitions, making the subject more likely to divulge information. [Paragraph 41] This technique has been used in psychiatry and anesthesia, but its use in criminal investigations has been controversial. [Paragraph 42]
During the hypnotic stage induced by sodium pentothal, the subject exhibits behaviors such as handling negative emotional responses, exploring conflicts, and divulging information. It is difficult for the person to lie at this stage. [Paragraph 44] The personnel involved in conducting a narcoanalysis interview include a forensic psychologist, an anesthesiologist, a psychiatrist, a general physician, and a language interpreter if needed. [Paragraph 45]
While narcoanalysis can aid investigators in uncovering vital evidence and detecting malingering, it has limitations, and interrogators must be skilled to extract useful information. Some individuals may be suggestible to questioning, and there is no uniform criteria for evaluating the efficacy of this technique. [Paragraph 47]
B. Polygraph Examination
The polygraph examination, also known as the lie detector test, measures physiological responses such as respiration, blood pressure, and pulse rate to determine if someone is lying. [Paragraph 10] The examiner analyzes the results to assess the subject's credibility.
There are three prominent polygraph examination techniques that involve a pre-test interview to finalize questions and mitigate surprise. [Paragraph 11] The polygraph examiner should be familiar with the details of the ongoing investigation.
The use of polygraph examinations in the criminal justice system has been controversial, especially when used to detect deception or verify the truth of testimonies. [Paragraph 13] Polygraph tests are also being used on victims of sexual offenses, despite some states prohibiting it. [Paragraph 14]
Polygraph tests have limitations and can lead to errors due to various factors, such as the subject's mental state and potential memory loss. [Paragraph 16] The errors in polygraph tests are grouped into 'false positives' and 'false negatives', and the qualifications and competence of the examiner are crucial in addressing these complexities. [Paragraph 17]
The biggest concern about polygraph tests is the potential for deliberate attempts by the subject to manipulate the results, using techniques to deceive the examiner. [Paragraph 18]
C. Brain Electrical Activation Profile (BEAP) Test
The BEAP test, also known as the P300 Waves test, measures brain activity in response to selected stimuli to determine familiarity with certain information. [Paragraph 67] It examines and measures 'event-related potentials' (ERP) – electrical wave forms emitted by the brain after exposure to an external event – to recognize specific patterns of brain activity indicating cognitive mental activities. [Paragraph 67]
The BEAP test involves attaching electrodes to the subject's scalp to measure the emission of wave components. It requires collaboration between investigators and examiners to design probes and detect deception. [Paragraph 69] The test subject is exposed to relevant and irrelevant stimuli, and the emission of P300 wave components is recorded to make inferences about the individual's familiarity with the information related to the crime.
The BEAP test led to the development of 'Brain Fingerprinting' by Dr. Lawrence Farwell, which has been used in criminal justice and litigation. [Paragraph 70] However, the P300 Wave component has not been extensively researched for its potential use in the criminal justice system, and Dr. Farwell's 'Brain Fingerprinting' technique has not been subject to rigorous independent study. [Paragraph 73]
III. Legal Issues
The court examined the following legal questions regarding the involuntary administration of these techniques:
1. Does it violate the 'right against selfincrimination' in Article 20(3) of the Constitution? [Paragraph 7]
2. Does the use of these techniques create a likelihood of incrimination?
3. Do the results from these techniques amount to 'testimonial compulsion' under Article 20(3)?
4. Is the involuntary administration of these techniques a reasonable restriction on 'personal liberty' under Article 21?
IV. Right Against Self-Incrimination
The right against self-incrimination is an essential safeguard in criminal procedure, ensuring the reliability and voluntary nature of statements. Compelled testimony is more likely to be false, impeding the integrity of the trial and verdict. [Paragraph 91] This rule ensures that the testimony considered during trial is reliable and avoids miscarriages of justice. [Paragraph 91]
Article 20(3) of the Constitution of India extends to the investigative stage in criminal cases and protects accused persons, suspects, and witnesses who are examined during an investigation. [Paragraph 82] The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. [Paragraph 82]
The right against self-incrimination is vital to prevent coerced testimonies from being used in trials, ensuring that the prosecution must prove their case through legitimate means. [Paragraph 92] Obtaining evidence from accused individuals by compulsion could hinder the detection of truth and discourage diligent search for reliable independent evidence. [Paragraph 93]
A. Applicability of Article 20(3) to the Stage of Investigation
The court decisively answered the applicability of Article 20(3) to the stage of investigation, establishing that it extends to every stage where information is given. [Paragraph 99] A formal accusation is required to invoke the protection of Article 20(3). [Paragraph 99] All information that has a guilty element is covered under the scope of 'incrimination' for the purpose of Article 20(3). [Paragraph 99] B. Testimonial Compulsion
The majority decision in Kathi Kalu Oghad is the controlling precedent for understanding the scope of 'testimonial compulsion'. [Paragraph 27] It states that 'personal testimony' comes under the prohibition of Article 20(3), and oral or written statements can be relied upon for identification or comparison. The bar of Article 20(3) can be invoked when statements are likely to lead to incrimination. [Paragraph 27]
The court recognized the distinction between testimonial acts and physical evidence in Article 20(3), citing foreign decisions. [Paragraph 27] In Schmerber v. California, the U.S. Supreme Court made a distinction between evidence of a 'testimonial' or 'communicative' nature as opposed to evidence of a 'physical' or 'real nature', concluding that the privilege against selfincrimination applied to the former but not to the latter. [Paragraph 27]
The court concluded that the results of the impugned tests (narcoanalysis, polygraph examination, and BEAP test) should be treated as testimonial acts for the purpose of invoking the right against self-incrimination. [Paragraph 149] The phrase 'and such other tests' in the Explanation to Sections 53, 53-A, and 54 of the Code of Criminal Procedure should only include tests that involve the examination of physical evidence. [Paragraph 149]
V. Personal Liberty and Right to Privacy
The involuntary administration of the impugned tests entails physical confinement and an intrusion into the subject's mental privacy. [Paragraph 53] The court recognized the need to balance an individual's right to privacy and compelling public interest, as laws designed to achieve the protection of public health and morality will not be in breach of Article 21 of the Constitution of India. [Paragraph 53]
The court expressed concern about the potential for custodial abuse, surveillance, harassment, and public distribution of test recordings, which could be viewed as a restraint on personal liberty. [Paragraph 1]
A. Right to Privacy
The judicial understanding of privacy in India has mostly focused on protecting the body and physical spaces from intrusive actions by the State. [Paragraph 2] However, the court recognized the importance of personal autonomy in the choice between remaining silent and speaking, especially in circumstances where the person faces exposure to criminal charges or penalties. [Paragraph 2]
Forcing someone to undergo these techniques violates privacy boundaries and the right against self-incrimination, leading to adverse consequences even without criminal charges. [Paragraph 3]
B. Cruel, Inhuman, or Degrading Treatment
The administration of these techniques could cause mental pain and suffering, and the results could lead to physical abuse. [Paragraph 16] The threat of conducting tests could elicit testimony or cause mental trauma, especially for vulnerable sections of society. [Paragraph 16]
During a narcoanalysis interview, the test subject loses awareness of place and passing of time. The techniques used impair the test subject's capacity for decision or judgment, and can be considered cruel, inhuman, or degrading treatment. [Paragraph 4] The law disapproves of involuntary testimony, and a forcible intrusion into a person's mental processes is an affront to human dignity and liberty, often with grave and long-lasting consequences. [Paragraph 4]
The court considered international conventions and declarations related to torture and treatment of individuals, such as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [Paragraph 2] The involuntary administration of these tests could constitute cruel, inhuman, or degrading treatment as per Article 21 of the Constitution of India. [Paragraph 2]
VI. Right to Fair Trial
The involuntary administration of these tests impedes the right to a fair trial, access to legal advice, and impacts the fact-finding role of the judge. [Paragraph 2]
The subject may not be aware of the drug-induced revelations, and the investigators may choose not to communicate them, affecting the defendant's ability to present a meaningful defense. [Paragraph 3]
India's lack of a jury system means that the use of certain techniques could affect the judge's factfinding role, as the same judge oversees both the evidentiary and guilt phases of the trial. [Paragraph 6] The consideration of test results could prejudice the judge, and reliance on scientific techniques could cloud their judgment. [Paragraph 6]
VII. Admissibility of Evidence
The narcoanalysis technique and polygraph examination have limitations and may not always produce truthful or accurate results, conflicting with the standard of proof in criminal trials. [Paragraph 4]
The use of expert opinion testimony in criminal justice has raised concerns about the credibility of experts, as they may have a bias towards the techniques they promote. [Paragraph 5]
If the compulsory administration of any of the impugned techniques is permitted, there would be no principled basis to deny the same opportunity to defendants and witnesses, leading to an unnecessary rise in frivolous litigation. [Paragraph 7]
VIII. Safeguards and Guidelines
While the court ruled that the involuntary administration of these techniques violates the right against self-incrimination and personal liberty, it acknowledged that voluntary administration with certain safeguards is allowed. [Paragraph 2]
The National Human Rights Commission of India has formulated guidelines for administering the lie detector test, including obtaining consent from the accused, providing access to a lawyer, and recording the consent before a Judicial Magistrate. The test must be conducted by an independent agency in the presence of a lawyer. [Paragraph 4]
IX. Conclusion
The court concluded that the compulsory administration of the impugned techniques (narcoanalysis, polygraph examination, and BEAP test) violates the 'right against self-incrimination' as enshrined in Article 20(3) of the Constitution of India. [Paragraph 2] It impairs the reliability and voluntariness of evidence obtained, violating the individual's choice between speaking and remaining silent. [Paragraph 2]
The involuntary administration of these techniques is an unjustified intrusion into the mental privacy of an individual and a violation of international human rights norms. [Paragraph 2] No individual should be forcibly subjected to any of these echniques, but voluntary administration with certain safeguards is allowed. [Paragraph 2]
Ultimately, the court ruled that the use of these techniques for investigative purposes is not justifiable, as it violates the fundamental rights guaranteed by the Constitution of India. [Paragraph 2]
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