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2010 Supreme(Raj) 504
[Citation : 2010(2) RLW 1688 (SC)]
(Supreme Court)
Selvi (Smt.) & Ors. Vs. State of Karnataka (Balakrishnan, CJI.)
HON'BLE K.G. BALAKRISHNAN, CJI.
HON'BLE R.V. RAVEENDRAN, J.
HON'BLE J.M. PANCHAL, J.
Selvi (Smt.) & Ors.
Versus
State of Karnataka
Criminal Appeal No. 1267 of 2004 With Criminal Appeal Nos. 54 of 2005, 55 of 2005, 56-57 of 2005, 58-59 of 2005, 1199 of 2006, 1471 of 2007, and Nos.987 & 990 of 2010, decided on 05.05.2010
Headnote:Constitution of India, Art. 20(3) & 21 read with Cr.P.C., 1973, Sec. 53 & 54 and Evidence Act, 1872, Sec. 27 — Provisions of the Acts — "Right against self-incrimination" — Involuntary administration of certain scientific techniques, namely narcoanalysis, poly graph examination and Brain Electrical Activation Profile (BEAP) test for the purpose of investigation in criminal cases — Preservation of individual liberties — Held — Protecting Human Rights — Declared (i) Use of narcoanalysis, brainmapping and polygraph tests on suspects "illegal", (ii) Tests cannot be conducted on any person, whether an accused or a suspect, without their consent and (iii) Investigating agencies to follow strictly guidelines laid down by the National Human Right Commission in conducting the polygraphy test. (Para 223)
Hkkjr dk lafo/kku] vuqPNsn 20¼3½ ,oa 21 lifBr na-iz-la-] 1973] /kkjk 53 ,oa 54 ,oa lk{; vf/kfu;e] 1872] /kkjk 27 & vuqPNsnksa ds izko/kku & ^^Lo;a dks vijk/k esa Qalkus ds fo:) vf/kdkj** & dfri; oSKkfud ;qfDr;ksa tSls ukjdks fo'ys"k.k] iksyhxzkQ ijh{k.k] vkSj czsu bysfDVªdy ,DVhos'ku izksQkbZy ¼ch-b-,-ih-½ VsLV dk QkStnkjh izdj.kksa esa vUos"k.k ds iz;kstukFkZ vLoSfPNd izcU/ku & O;fDrxr LorU=rk dk lao/kZu & vfHkfu/kkZfjr & ekuokf/kdkjksa dk laj{k.k djuk & ¼i½ lafnX/kksa ij ukjdksa fo'ys"k.k] czsu esfiax vkSj iksfyxzkQ VsLV dks voS/k ?kksf"kr fd;k & ¼ii½ fdlh Hkh O;fDr ij mudh lgefr ds fcuk ijh{k.k ugha fd;k tk ldrk pkgs og vfHk;qDr gks ;k lafnX/k gks] vkSj ¼iii½ iksfyxzkQh VsLV djus esa jk"Vªh; ekuokf/kdkj vk;ksx }kjk vf/kdfFkr fn'kk funsZ'kksa dk vUos"k.k djus okyh ,tsafl;ka l[rh iwoZd vuqlj.k djsaA
vihysa fuLrkfjr dhA ¼in la[;k 223½
Certainly. Based on the provided legal document, the key points are as follows:
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The use of scientific techniques such as narcoanalysis, polygraph examination, and Brain Electrical Activation Profile (BEAP) tests in criminal investigations raises significant concerns regarding individual rights and liberties. These techniques involve involuntary administration without consent, which raises questions about their legality and constitutionality (!) .
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The primary constitutional protections under Article 20(3) of the Indian Constitution prohibit self-incrimination and extend to the investigative stage, not just during trial. Any evidence or information obtained through involuntary means that amount to testimonial acts violates this right (!) (!) .
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The scientific validity and reliability of these techniques are questionable, with empirical studies indicating their results are often inconclusive or prone to errors such as false positives and negatives. This unreliability undermines their admissibility and the fairness of the judicial process (!) (!) .
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The administration of these techniques involves testimonial responses that convey personal knowledge about relevant facts, which are protected from compelled disclosure by Article 20(3). Techniques like polygraph and BEAP do not merely gather physical evidence but seek to infer mental states, thus amounting to testimonial acts (!) (!) .
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The involuntary use of these techniques violates the right to privacy and the right against cruel, inhuman, or degrading treatment under Article 21. Forcible intrusion into mental processes and the administration of drugs or other methods without consent are considered violations of human dignity and bodily integrity (!) (!) .
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Such involuntary procedures can cause mental pain, suffering, and trauma, and their administration can be deemed as cruel, inhuman, or degrading treatment, especially when conducted without proper safeguards or consent (!) (!) .
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The use of these techniques also impairs the right to a fair trial by affecting the integrity of evidence and the fact-finding process. Reliance on test results obtained involuntarily can prejudice judicial proceedings and undermine the principle of impartiality (!) .
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The legislative framework does not explicitly authorize the involuntary administration of these techniques, and their use cannot be read into existing statutes based on legislative intent or broad interpretation of the law. Such practices are therefore unconstitutional unless conducted with voluntary consent and proper safeguards (!) (!) .
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Even when consent is given voluntarily, the results of these techniques should not be admissible as evidence, as they are testimonial in nature and their reliability is highly questionable. However, evidence or information derived from voluntary use, following the principles of the Evidence Act, can be considered (!) .
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Safeguards and guidelines should be strictly followed when these techniques are used voluntarily, including informed consent, legal representation, proper recording, and adherence to human rights principles to prevent abuse and protect individual dignity (!) (!) .
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Overall, involuntary administration of these scientific techniques contravenes constitutional protections and human rights standards, and their use in criminal investigations should be prohibited unless conducted with explicit, informed, and voluntary consent, along with strict adherence to procedural safeguards.
Leave granted in SLP (Crl.) Nos. 10 of 2006 and 6711 of 2007.
1. The legal questions in this batch of criminal appeals relate 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. This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preser-vation of individual liberties. Ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings.
2. 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. In some of the impugned judgments, reliance has been placed on certain provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to fully co-operate with investigation agencies. 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.
3. The involuntary administration of the impugned techniques prompts questions about the protective scope of the ‘right against self-incrimination’ which finds place in Article 20(3) of our Constitution. In one of the impugned judgments, it has been held that the information extracted through methods such as ‘polygraph examination’ and the ‘Brain Electrical Activation Profile (BEAP) test’ cannot be equated with ‘testimonial compulsion’ because the test subject is not required to give verbal answers, thereby falling outside the protective scope of Article 20(3). It was further ruled that the verbal revelations made during a narcoanalysis test do not attract the bar of Article 20(3) since the inculpatory or exculpatory nature of these revelations is not known at the time of conducting the test. To address these questions among others, it is necessary to inquire into the historical origins and rationale behind the ‘right against self-incrimination’. The principal questions are whether this right extends to the investigation stage and whether the test results are of a ‘testimonial’ character, thereby attracting the protection of Article 20(3). Furthermore, we must examine whether relying on the test results or materials discovered with the help of the same creates a reasonable likelihood of incrimination for the test subject.
4. We must also deal with arguments invoking the guarantee of ‘substantive due process’ which is part and parcel of the idea of ‘personal liberty’ protected by Article 21 of the Constitution. The first question in this regard is whether the provisions in the Code of Criminal Procedure, 1973 that provide for ‘medical examination’ during the c
