Selvi & Ors. Vs state of
Karnataka&anr. (2010):
An analysis

(Project submitted to Amity University Uttar Pradesh in
parti...
CERTIFICATE
AMITY LAW SCHOOL
NOIDA

This is certified that the project entitled “Selvi & Onr. Vs State of Karnataka &
Anr....
ACKNOWLEDGMENT
This project deals with the topic “Selvi & Onr. Vs State of Karnataka &
Anr.(2010): An Analysis”. I would l...
INDEX
1.
2.
3.
4.
5.
6.
7.

ACKNOWLEDGMENT
INTRODUCTION
THE CASE AT HAND
THE HC’S STAND BEFOE THE JUDGMENT
THE SC’S ANALYS...
INTRODUCTION
As science has outpaced the development of law or at least the laypersons understanding of it,
there is unavo...
a person cannot enter into a contract to give up or not to claim a fundamental right.7Under the
canons of common law crimi...
The Case At Hand
The Indian judiciary has finally recognized and condemned the abusive nature of
narcoanalysis, brain-mapp...
The High Court’s Stand before the Judgment
During the past decade, High Courts across the country continued to uphold the ...
Second, the Court declared all three tests to amount to cruel, inhuman or degrading treatment
because of the mental harm l...
The Supreme Court’s Analysis
The Supreme Court overruled various High Courts in declaring that the administration of
Narco...
Secondly, the Court found that since the answers given during the administration of the test
are not consciously and volun...
Has This Case Still Left Many Questions Unanswered With Respect
To Article 20(3)?
The Supreme Court decision in Smt. Selvi...
.

5 MAY 2010
Narco analysis test without consent of accused illegal: Supreme
Court
In a decision pronounced today authore...
impugned techniques cannot be read into the statutory provisions which enable medical
examination during investigation in ...
information or materials collected at an earlier stage of investigation can prove to be
inculpatory in due course.
169. Th...
individual to interfere with such autonomy, especially in circumstances where the person
faces exposure to criminal charge...
Conclusion
To conclude, the use of narco-analysis as an investigative tool or as evidence is
violative of the right to lif...
BIBLIOGRAPHY
Primary Sources:
1.Indian Evidence Act,1872
2.The Constitution of India,1950

Secondary Sources:
1.www.humari...
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  1. 1. Selvi & Ors. Vs state of Karnataka&anr. (2010): An analysis (Project submitted to Amity University Uttar Pradesh in partial fulfillment of the requirement for the degree of bachelors of law) SUBMITTED TO: Mr.Ashwani Pant SUBMITTED BY: Yugant Kuhar (A3211110107) BA,LLB (H) Eight semester (Sec. B) pg. 1
  2. 2. CERTIFICATE AMITY LAW SCHOOL NOIDA This is certified that the project entitled “Selvi & Onr. Vs State of Karnataka & Anr.(2010): An Analysis ” is the original and bonafide work of MR.YUGANT KUHAR, ENROLLMENT NUMBER A3211110107 It has been carried out under my personal guidance and supervision. I approve its submission in partial fulfillment of internal examination of B.A.LLB programme of AMITY LAW SCHOOL, AMITY UNIVERSITY UTTAR PRADESH. MR.ASHWANI PANT PROFESSOR AMITY LAW SCHOOL AMITY UNIVERSITY UTTAR PRADESH pg. 2
  3. 3. ACKNOWLEDGMENT This project deals with the topic “Selvi & Onr. Vs State of Karnataka & Anr.(2010): An Analysis”. I would like to show my gratitude to our Land Law subject teacher “MR. ASHWANI PANT” for his constant guidance and support. I would also thank our Director Sir for providing us with such oppurtunities. I owe it to the library and librarian of our Amity Law School,Noida for providing us with the contents for research used in this project. I am also thankful to all my friends and family for helping me out to make this project. Yugant Kuhar A3211110107 8th semester B.A.,L.L.B.(H) Section B pg. 3
  4. 4. INDEX 1. 2. 3. 4. 5. 6. 7. ACKNOWLEDGMENT INTRODUCTION THE CASE AT HAND THE HC’S STAND BEFOE THE JUDGMENT THE SC’S ANALYSIS QUES wrt ART 20(3) DUE TO THIS CASE NARCO ANALYSIS TEST WITHOUT CONSENT OF ACCUSED ILLEGAL:SC 8. LANDMARK INITIATIVES 9. CONCLUSION 10.BIBLIOGRAPHY pg. 4
  5. 5. INTRODUCTION As science has outpaced the development of law or at least the laypersons understanding of it, there is unavoidable complexity regarding what can be admitted as evidence in court. Narco analysis is one such scientific development that has become an increasingly, perhaps alarmingly, common term in India.1 Article 20(3) of the Constitution of India stipulates a prohibition that no person accused of an offence shall be compelled to be a witness against himself. This is a fundamental right of the accused. The provision is divided into several components to understand its true import.2 The constitution neither has nor merely declared that such laws in force as are inconsistent with the fundamental rights shall be void, it has also provided against similar future legislature. Clause (2) of article 13 lays down: The state shall not make any laws which takesaway or abridges the right conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. In any criminal investigation, interrogation of the suspects and accused plays a vital role in extracting the truth from them. From time, immemorial several methods, most of which were based on some form of torture have been used by the investigating agencies to elicit information from the accused and the suspects.3 The article 20(3) of the Indian constitution gives protection a) To a person accused of an offence b) Against compulsion “to be a witness”; c) Against himself4 This principle is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporated in the Federal Constitution.5 The article 20(3) cannot be invoked unless all the above three ingredients exist6.The article embodies the principle of protection against compulsion of self –incrimination. It is firmly established in India, that, unless the constitution itself so provides, 1 The concept of narcoanalysis in view of constitutional law and human rights by sonakshi verma accessed on 17 July 2010 available at http://www.rmlnlu.ac.in/content/sonakshi_verma.pdf 2 Use of modern scientific tests in investigation and evidence: mere desperation or justifiable in public interest? By abhyudaya agarwal & prithwijit gangopadhyay accessed on 4 th august 2010 available at http://www.nujslawreview.org/articles2009vol2no1/abhyudaya-agarwal-and-prithwijitgangopadhyay.pdf 3 Article 20 (3) Of Constitution of India And Narco Analysis by shehnaz ahmed accessed on 6 th august 2010 http://www.legalserviceindia.com/article/l375-article-20-%283%29-of-constitution-of-india-andnarcoanalysis.html 4 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 5 5article 20(3) of the Indian constitution with reference to narco-analysis and brain mapping by vaibhav niti accessed on 15th august 2010 http://jurisonline.in/2009/09/article-203-of-the-indian-constitution-with-referanceto-narcoanalysisand-brain-mapping/ 6 Balkishen v. State of Maharashtra AIR 1981 SC 379 th pg. 5
  6. 6. a person cannot enter into a contract to give up or not to claim a fundamental right.7Under the canons of common law criminal jurisprudence, a person is presumed to be innocent; the prosecution must establish his guilt. Secondly, a person accused of an offence need not make any statement against his will. These principles are embodied in clause 3 of article 20 which lays down that “No person accused of any offence shall be compelled to be a witness against himself” the privilege to an accused person contains three components, viz, that he has a right of protection against “compulsion to be a witness”, and against such compulsion resulting in his giving evidence “against himself”. In other words an accused person is protected against incriminating himself under compulsion, e.g., making “a statement which makes the case against the accused person at least probable considered by itself”. Compulsion in this context would means “duress”8, In NANDINI SATHPATHY CASE 9the court held that “relevant replies which furnish a real and clear link in the chain of evidence to bind down the accused with the crime become incriminatory and offend article 20(3) if elicited by pressure from the mouth of the accused” 7 Kameshwar v .State of Bihar, AIR1962 SC 1166 State of Bombay v. Kathi kalu oghad, AIR 1961 SC 1808 9 AIR 1978 SC 1025 8 pg. 6
  7. 7. The Case At Hand The Indian judiciary has finally recognized and condemned the abusive nature of narcoanalysis, brain-mapping, and polygraph tests10specifically, the Supreme Court’s recent decision in Smt. Selvi & Ors. v. State of Karnataka prohibited all involuntary administration of such tests, holding them to be “cruel, inhuman and degrading treatment”11 The Supreme Court’s decision is in line with Constitutional requirements and international human rights law. In sharp contrast, the Supreme Court raised serious concerns about the validity, reliability, and indeed usefulness of narcoanalysis, brain mapping, and polygraph tests. The Court emphasized how each of the tests could lead to the discovery of false and even misleading information.12 In questioning the scientific reliability of narcoanalysis, the Court for example stated: “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.”13 The Court also noted that some subjects of narcoanalysis “can become extremely suggestible to questioning” while others might “concoct fanciful stories.”14 Similarly, for different forms of brain mapping, which rely on a subject’s familiarity with certain stimuli to assess potential involvement in crime, the tests can falsely implicate a subject because of the subject’s prior exposure to test stimuli such as through media reports, revelation of facts to the subject by investigators, or the subject’s relation to the crime as a bystander witness.15 For polygraph tests, the Court noted that distorted physiological responses could result from “nervousness, anxiety, fear, confusion or other emotions… the physical conditions in the polygraph examination room… the mental state of the subject…[or] ‘memory-hardening’, i.e. a process by which the subject has created and consolidated false memories about a particular incident.16 10 Smt. selvi & ors. v. state of Karnataka, criminal appeal no. 1267 of 2004, Supreme Court of India, ibid 12 Supra note 1, at 16, 47, 73. 13 Ibid. at 47. 14 Ibid. at 47. 15 Ibid. at 74. 16 Ibid. at 16. 11 pg. 7
  8. 8. The High Court’s Stand before the Judgment During the past decade, High Courts across the country continued to uphold the use of such tests17. The Supreme Court’s analysis aptly demonstrates how those decisions strained legal reasoning and logic by relying on the purported scientific nature of narcoanalysis tests despite the fact that scientific evidence had long discredited the tests purported scientific validity. The Supreme Court’s decision disagreed with the reasoning of the various High Court judgments in three main areas: a) The reliability/unreliability of the tests; b) Self-incrimination protections; c) Substantive due process rights. The Supreme Court’s decision is in line with Constitutional requirements and international human rights law. However, the Court also ruled that information “subsequently discovered” from the result of a “voluntary” test can be admitted as evidence. While the High Court’s addressing this issue gave scant attention to potential rights violations under Article 21 of the Constitution, the Supreme Court found that narco analysis violated individuals’ right to privacy and amounted to cruel, inhuman or degrading treatment. Article 21 protects the right to life and personal liberty18, which has been broadly interpreted to include various substantive due process protections, including the right to privacy19 and the right to be free from torture and cruel, inhuman, or degrading treatment20. The majority of High Courts did not even address the issue of the right to privacy, and those that did only made blanket assertions that the right is not absolute or that narcoanalysis and other tests did not infringe on the right21. Similarly, the High Courts did not address the issue of whether narcoanalysis amounted to torture or cruel, inhuman or degrading treatment, despite the fact that at least some of the petitioners raised this issue.22 Again, the Supreme Court departed sharply from the stance of the lower courts. First, the Court found all three tests to amount to an invasion of privacy by intruding into a “subject’s mental privacy,” denying an opportunity to choose whether to speak or remain silent, and physically restraining a subject to the location of the tests.23 17 In State of Andhra Pradesh v. smt. inapuri Padma and ors., case no. 459 of 2008; Delhi (sh. shailender sharma v.state, crl. wp no. 532 of 2008); Gujarat (santokben sharmanbhai jadeja v. state of Gujarat, special criminal application no. 1286 of 2007) 18 The Constitution of India, 1950, Art. 21 19 Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 898 20 DK Basu v State of West Bengal, (1997) 1 SCC 416, at 22. 21 Rojo George v. Deputy Superintendent of Police, Crl WP No 6245 of 2006, at 12; also, supra note4. 22 Dinesh Dalmia v. State, Crl. R.C. No. 259 of 2006 and Crl. M.P. Nos. 1518 and 1519 of 2006, at 8 23 Supra note 1, at 169,192. pg. 8
  9. 9. Second, the Court declared all three tests to amount to cruel, inhuman or degrading treatment because of the mental harm likely suffered and the potential physical abuse by police or prison officials that could result from the responses given. As the Court stated, “forcible intrusion into a person’s mental processes is… an affront to human dignity and liberty, often with grave and long-lasting consequences.”24 24 Ibid, at 205. pg. 9
  10. 10. The Supreme Court’s Analysis The Supreme Court overruled various High Courts in declaring that the administration of Narcoanalysis, brain mapping, and polygraph tests violated subjects’ rights against selfincrimination in contravention of Article 20(3) of the Indian Constitution.25 According to that article, “No person accused of an offence shall be compelled to be a witness against himself”.26 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.27 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.28 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. According to these judgments, only if an incriminating statement was in fact made and then admitted as evidence could a potential violation occur.29 The Delhi High Court went further to state that statements made during narcoanalysis could be admitted as evidence in court as corroborative evidence.30 The Supreme Court rejected these arguments. First, the Court found that forcing a subject to undergo narcoanalysis, brain-mapping, or polygraph tests itself amounted to the requisite compulsion, regardless of the lack of physical harm done to administer the test or the nature of the answers given during the tests.31 25 In the case, Smt. Selvi & Ors. v. State of Karnataka, at 165, 223. The Constitution of India, 1950, Art.20 (3). 27 Supra note 11, at 10. 28 Dinesh Dalmia v. State, Crl. R.C. No. 259 of 2006 and Crl. M.P. Nos. 1518 and 1519 of 2006. 29 Supra note 4, at Para. 5; Ram Chandra Ram Reddy v. Maharashtra, Criminal Writ Petition No. 1924 of 2003,decided on 5 March 2004; Sh. Shailender Sharma v. State, Crl. WP No. 532 of 2008 30 Sh. Shailender Sharma v. State, Crl. WP No. 532 of 2008, at 37 31 Supra note 1, at 158, 165. 26 pg. 10
  11. 11. Secondly, the Court found that since the answers given during the administration of the test are not consciously and voluntarily given, and since an individual does not have the ability to decide whether or not to answer a given question, the results from all three tests amount to the requisite compelled testimony to violate Article 20(3).32 Even if a person voluntarily agreed to undergo any of the tests at the outset, the responses given during the tests are not voluntary.33 Overall, the Supreme Court rightly rejected the High Courts’ reliance on the supposed utility, reliability and validity of narcoanalysis and other tests as methods of criminal investigation. This de-mystification of the techniques allowed the Court to carry out a thorough analysis of the various constitutional rights at stake, namely rights against self-incrimination and substantive due process rights, a study that the High Courts were unable or unwilling to do. 32 33 Ibid. at 161,165 Ibid. at 169, 192 pg. 11
  12. 12. Has This Case Still Left Many Questions Unanswered With Respect To Article 20(3)? The Supreme Court decision in Smt. Selvi & Ors. v. State of Karnataka is a welcome development. Serious concerns still remain, however, as to whether the spirit of the judgment will be respected by law enforcement authorities. 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.34 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. Basu35 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. This limited exception for admitting into evidence “fruits of the poisonous tree”36 casts a shadow on the Court’s otherwise progressive judgment. A fresh look at the exception is therefore in order. 34 Super note 1, at 205. DK Basu v State of West Bengal, (1997) 1 SCC 416, at 22. 36 Supra note 1, at 118. The Court was referring to confessions made before police officers, which are not ordinarily admissible as evidence 35 pg. 12
  13. 13. . 5 MAY 2010 Narco analysis test without consent of accused illegal: Supreme Court In a decision pronounced today authored by the Chief Justice of India himself, the Supreme Court has declared that narco-analysis tests cannot be conducted on an accused without his consent. Holding that right to personal liberty, as enshrined in Article 21 of the Constitution of India and the protection against self-incrimination available to all persons in India in terms of Article 20(3) were all pervasive, this decision in Selvi v. State of Karnataka can as well be hailed to be one of trend-setting landmark judgments of India. In fact the Supreme Court extended this reasoning and bar to even poly-graphic tests (lie-detector tests), Brain Electrical Activation Profile (BEAP) test, and Functional Magnetic Resonance Imaging (FMRI). The judgment, which runs over 250 pages, the conundrum leading to the present dispute was noted by the Court in the following terms; "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." In this background, having examined the various competing considerations and the decisions of courts from other jurisdictions, the Supreme Court concluded as under; 221. 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. 222. 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 pg. 13
  14. 14. 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’. 223. 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. Some other pertinent observations made by the Bench, which are worth noting, as as under; 91. 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. 123. 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 pg. 14
  15. 15. information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course. 169. 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. 170. 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’. 171. 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’. 192. 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 pg. 15
  16. 16. individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.37 Landmark Initiatives38 Selvi v. State of Karnataka (2010 (7) SCC 263) In a major blow to investigating agencies, 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'. A three-Judge Bench of Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and J.M. Panchal, in a 251-page judgment, said: “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.” 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.” The CJI said: “It is our 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.” 37 38 http://legalperspectives.blogspot.in/2010/05/narco-analysis-test-without-consent-of.html http://www.humanrights-justice.com/landmark_initiative/selvi_vs_state_of_karnataka.php pg. 16
  17. 17. Conclusion To conclude, the use of narco-analysis as an investigative tool or as evidence is violative of the right to life, liberty and the right against self-incrimination. Viewed from the point of view of criminal trials, the unreliability of the procedure and the impact of the drugs on the psyche may result in miscarriage of justice and conviction of innocent persons. The logic of ‘minimal bodily harm’ being permissible for extraction of information offered for upholding narco-analysis has grave implications as to the use of coercive third-degree methods specially in the context of growing curbs on rights in the name of tackling terrorism. The democratic rights movement must take up a sustained campaign against the use of invasive methods like narcoanalysis and brain mapping. pg. 17
  18. 18. BIBLIOGRAPHY Primary Sources: 1.Indian Evidence Act,1872 2.The Constitution of India,1950 Secondary Sources: 1.www.humarightsjustice.com 2.www.advocatekhoj.com 3.www.indiankanoon.org 4.www.legalperspectives.blogspot.in 5.Indian Evidence Act by M.P.Tandon 6.The law of Evidence by Ratanlal and Dhirajlal pg. 18

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