Critical Analysis of Selvi v.

State of Karnataka

*Aman Kumar Buri, Year-4, ILNU

Brief Facts of the case:-

The subsequent appeals filed by Smt. Selvi and others in the years 2004, 2005, 2006, 2007 & 2010

were collectively taken up by the constitutional bench of the Supreme Court in the form of Special

Leave Petition under article 136 of the Constitution of India on the date 5th May, 2010. The

objection raised in the current case was related to the involuntary administration of some scientific

techniques like narcoanalysis, polygraph examination and the Brain Electrical Activation Profile

(BEAP) or Brain- Mapping test of the accused, suspects or witnesses in an investigation, in order

to create the evidentiary value out of the statements recorded by such processes. The scuffle in the

present case was between the desirability of efficient investigation and the preservation of

individual liberties. The main contention of the investigating agencies was that these scientific

techniques could be useful in extracting the important information out of the accused or witness,

which by ordinary means could never be possible to extract.

It was further argues that such kind of techniques didn’t cause any bodily harm to the victims,

accused or the witnesses in any way and such information so extracted by these processes would

only strengthen the investigation process and thus, would not be taken as evidentiary value in the

trial stage. One such argument was also related to the speedy justice, where it was contended that

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this would increase both conviction and the acquittal rates in the same manner with an effective

and reliable procedure.

In the arguments of the defense, it was also contended that these kind of scientific techniques are

the softer alternative to the prevalent ‘third degree police treatments’ during the investigation. On

the other hand, the petitioners argues with reference to the violation of the Right to Privacy and

the right against the Self-Incrimation as provided under article 21 and Article 20(3) of the Indian

Constitution respectively.

Issues raised and Legal Issues Involved:-

The following legal issues were raised in the present case:

1) Whether gathering information through the narcoanalysis, brain mapping or BEAP, FMRI

(Functional Magnetic Resonance Imaging) and polygraph test constitutionally valid.

2) Whether the evidences so collected amount to the violation 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.

3) Whether evidences so collected amount to the violation of the right to privacy under the

‘personal liberty’ clause of Article 21 of the Constitution.

4) If the accused remains silent and does not answer any questions of the investigating

agencies then till what extent the investigating agencies can coerce or force the accused to

reveal information?

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Article 20(3) asserts, “No person accused of any offence shall be compelled to be a witness against

himself.” although an accused person may of his own accord make a voluntary statement as to the

charge against himself, a justice, before receiving such statement from him is required to caution

him that he is not obliged to say anything and that what he does say may be given in evidence

against himself. Hence also arises the rule that evidence of a confession by the accused is not

admissible unless it is proved that such confession was free and voluntary.1 The following right

has also been derived from the Latin maxim “nemo tenetur seipsum accusare”, which means “No

man, not even the accused himself can be compelled to answer any question, which may tend to

prove him guilty of a crime, he has been accused of.”2 The provision infers that ‘It is a right

available to a person “accused of an offence”. It is a protection against “compulsion to be a

witness”. It is a protection against such “compulsion” resulting in his giving evidence “against

himself”.3

Regarding the concept of Privacy, it can be said that although it has not been specifically

mentioned in the Constitution, but it has been innately imbibed in the Article 21 of the Constitution

under the concept of the right to life and liberty. It got its foundation in the case of Kharak Singh

v. State of U.P.4, but in the very case the majority of the judges (5 out of 7 judge-bench) held that

right to privacy was not a right guaranteed under the Article 21, but two of the judges held that

right to privacy was the part of Article 21 of the Constitution.

1
Chandrachud , Justice Y.V., The Law Lexicon, (2nd edition, 2006), pg.- 1298.
2
Black’s Law Dictionary,9th Edition.
3
State of Bombay v. Kathikalu, AIR 1961 Cri LJ , Vol 2, 2007.
4
AIR 1964 SC 332.

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 Decision of the Case:-

The decision of the present case was delivered by the three-judge honourable bench namely K.G.

Balakrishnan C.J.I and R.V. Raveendran J. and J.M. Panchal J, The summary of the judgement is

as follows:

Justice Balakrishnan held that false testimony by the accused person under the influence of

coercion, threats or inducements during the investigation is undesirable and is the violative of right

against self-incrimination as provided under the Article 20(3) of the Constitution, unless and until

he’s given his statements on the basis of procedure established by the law in the form of fulfilling

all the police testimony and his statements are not affected by any coercion and are voluntary.

Justice Balakrishnan further held that the objective of the ‘the right against self-incrimination’ is

first, to ensure the reliability of the statements made by an accused and second, to ensure that such

statements are made voluntarily.

There are several ways in which the involuntary administration of either of the tests can be

described as the restraint on ‘personal liberty’. The most important way is physical force, but the

drug-induced revelations or the substantive inferences drawn from the measurement of the

subject’s physiological responses can be described as violation of the mental privacy. It was also

held that a person could only say such self- incriminating statements against himself under the

influence of such tests. It was also held that because of these tests a person undergoes no physical

harm of any penal nature, but it subsequently leads to the custodial abuse, surveillance or undue

harassment during the period of the investigation. In some instances it has been observed that such

video and audio recording of the accused after such tests has been leaked to the media, which is

quite problematic and defamatory also. It may also lead to the ‘trial by media’, which will not be

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beneficiary to the accused. It was further added that such right to privacy doesn’t grant absolute

right, as the according to the provisions of the Code of Criminal Procedure it has been established

that police has the powers of arrest, detention, interrogation, search and seizure. Also, a reasonable

degree of the coercive powers by the police authorities during the course of investigation is

permissible till the time it is not violative of criterion such as ‘fairness, non-arbitrariness, and

reasonableness.’ The ‘rule against involuntary confessions’ as embodied in Sections 24, 25, 26

and 27 of the Evidence Act, 1872 provides that the concept of ‘personal liberty’ under Article 21

of the constitution must be read in consonance with the concept of ‘right to privacy’ under Article

20(3) of the Constitution. The importance of personal autonomy in aspects such as the choice

between remaining silent and speaking must be recognized.

Finally, the court held 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.”

Also, Article 20(3) provides a person to choose between to speak and to remain silent. Article

20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts

in issue’.5 Court further held that these tests cannot be inferred as a result of 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.

Court held that these tests have no place in the judicial process. On the contrary, it will disrupt

proceedings, cause delays, and lead to numerous complications which will result in no greater

degree of certainty in the process than that which already exists.6

5
Smt. Selvi & Ors. v. State of Karnataka, at 165, 223.
6
(2010) 7 SCC 263.

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 Judicial Study and Case Analysis:-

1) Position Before the Case

Dinesh Dalmia v. State 2006 Crl.L.J.2401

In the present case the accused misappropriated a sum of Rs. 594.88 crores by selling 1,30,00,000/-

unallotted-unlisted shares of DSQ Software Limited. Police filed a petition seeking permission to

conduct the Polygraph, Narco Analysis and Brain Mapping test on the accused before the the

learned Additional Chief Metropolitan Magistrate, Egmore, Chennai and the same was granted.

That’s why the appeal was made by the accused. The petitioner submitted that there was a health

hazard in Polygraph, Narco Analysis and Brain Mapping tests and also, it was an indirect physical

torture against the accused.

The respondents argue that these tests were conducted in order to resolve the mystery behind the

huge misappropriation and to know the exact facts behind the controversy. But, the petitioners

argued that since the accused didn’t give his consent for the tests, the investigation officer has

produced a false statement in the petition.

The court after a prolonged discussion arrived at the conclusion that Article 20(3) of the

Constitution of India recognizes the right of the accused to remain silent. The version of the

investigation officer is thus doubtful in the situation. But, taking into consideration, the huge

amount misappropriated by the accused it was further held by the learned court that if accused fails

to co-operate with the investigation process undertaken during custodial interrogation, to unravel

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the mystery surrounding the crime, scientific investigation methods may have to be carried out to

find the truth.7

Sh. Shailender Sharma vs State & another Crl. WP No. 532 of 2008

The facts of the present case shows that the accused was driving the car and on the way to home it

met an accident and consequently, his nephew, sitting beside him, died. The police in this case

demanded the permission for the lie detector test, which was subsequently accepted by the learned

court. Court in the present case held that the narco-analysis test is a step in aid of investigation. It

forms an important base for further investigation as it may lead to collection of further evidences.

Hence, court gave its judgement in the support of the narco-analysis test within a stipulated arguing

with reference to the good for society at large.

Hence, from the above discussion it can be summarize that the court before the case of Selvi v.

State of Karnataka was in support of the narco-analysis, brain mapping etc. test which aid to the

investigation.

7
2006 Crl.L.J.2401

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 2) Cases on Right to Privacy and the Right against the Self-

Incrimination

Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295

In the present case, Kharak Singh was previously in 1941 challenged in a case of dacoity, but due

to insufficient evidences, he was released. But, this led to more problems to him as the Chaukidar

of the village with police persons used to come to his house during night and used to force him to

be present at the police station. Also, every time when he supposed to leave the village, he had to

take prior permission of the Chaukidar of the village.

The issue raised in the case was whether such “surveillance” as described by the police authorities

violates any fundamental right as enshrined in the part III of the Constitution.

The police authorities took the plea that since, this kind of surveillance was not violative of any

right under Part III. Even if it were, then it was performed in the interest of the general public and

public order and were therefore "reasonable restrictions" on that freedom.

In this case a majority of the judges refused to interpret Article 21 to include within its ambit the

right to privacy. But, 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. That’s how

the concept of right of privacy evolved.

Abdul Karim Telgi’s Case: - 2004

In 2004, Telgi was arrested in a the interstate multi-crore rupee stamp paper scam and during the

course of investigation, the police authorities demanded for the narco- analysis of him in order to

obtain important information from him. Telgi's lawyers argue that using the statements as evidence

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would be a violation of Article 20(3) of the Constitution: "No person accused of any offence shall

be compelled to be a witness against himself."8

Although this case created new controversies, as most of the specialists were of the belief that even

during the time of narco analysis, a person can give the wrong statement, if he’s willing to escape

some part and is in the regular habit of telling lies.

3) Position After the Case:

After the decision of the Selvi v. State of Karnataka, it has become a guiding principle in the Indian

judicial history and it is often used as the precedent in the cases and has not been overruled yet.

8
The litmus test, available at http://indiatoday.intoday.in/story/narco-analysis-test-on-stamp-scam-accused-abdul-
karim-telgi/1/196613.html, last accessed on 11/3/2015.

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 CASE ANALYSIS

In the case of Selvi v State of Karnataka, it seems that all the three judges had given their focus on

right against self- incrimination under Article 20(3), but they didn’t give more focus on the

minority aspect i.e. Right to privacy. So, the focus must have been on the right to privacy also in

order to balance the situation. The reasons behind this are that firstly, the right again self-

incrimination has constantly been challenged by different High Courts in different cases and

secondly, the violation of right to privacy in the present case has been established beyond

reasonable doubt. The judgement starts with the description of different forms of right to privacy

but at the end of the case, it seems to be more inclined towards the concept of right against the

self- incrimination.

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 CRITICAL ANALYSIS:

In this case, Judges have covered two important aspects of the constitution- Right to Privacy

(Article 21) and the Right against the Self-Incrimination (Article 20(3)). Justice Balakrishanan has

taken the help of many foreign judgements as in India, no such landmark judgements available

with this regard. Even if there are some cases decided by different High Courts, they can’t be cited

as the authority as from time-to-time those cases have been challenged in other High Courts and

somehow contradictory judgements are available, which make the situation more confusing and

delusional. For example, the High Courts of Karnataka and Delhi had narrowed down the

understanding of narco analysis by holding that these statements given by the accused cannot be

the violation of the Article 20(3) because these statements are not known to the accused and he

would get to know only after the administration of the test.

But only by this case, establishing the theory of natural justice, 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’. Thus, Supreme Court

finally cleared the situation by this decision.

Although, 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.

The fuct which has to be noted here is that such arrangement is here to ensure the citizens’

cooperation and participation in the investigation process so police authorities cannot override the

constitutional protections given to accused persons. In Maneka Gandhi v. Union of India, where

the passports of hers were confiscated by the airport authorities without giving her any reasonable

notice, it was held by the Supreme Court that the right to privacy is an essential ingredient of

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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 ‘right to privacy’ and the

‘right against cruel, inhuman and degrading treatment’ as well as the right to fair trial, is also an

essential component of ‘personal liberty’.9

9
1978 AIR 597

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 Social Impact

From the detailed study of the present case it can be argued that the protection under Art. 20(3) of

the Constitution should not be extended in such a way as to hamper the ‘social interest’.

Sociological School of Jurisprudence establishes that in case of conflict between ‘social interest’

and ‘Individual interest’, social interest is going to be protected. Hence, tests like narco-analysis,

Brain Mapping and Polygraph test should not be brought within the purview of Art. 20(3) of The

Constitution of India so as to hamper the ‘social interest’. Also, the right against the self-

incrimination establishes the basic fact that the accused person is giving statement against himself

and he’s not even asked for the consent, then it is definitely going to implant wrong ideals in the

current progressive societies.

Therefore, with reference to the proliferation of crimes against society, it is necessary to keep in

mind the necessity of the society at large and the need of a thorough and proper investigation as

against individual rights while ensuring that constitutional rights are not infringed.10 Law is a living

process, which changes according to the changes in society, science, ethics and so on. The Legal

System should imbibe developments and advances that take place in science as long as they do not

violate fundamental legal principles and are for the good of the society. The criminal justice system

should be based on just and equitable principles.11

10
Jain, M.P., Indian Constitutional Law, (2007, 5th Edn), Wadhwa publications, Nagpur
11
NHRC Guidelines,National Human Rights Commission. Available at http://nhrc.nic.in/Documents/sec-3.pdf, Last
accessed on March 10, 2015.

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 Conclusion

On the basis of above discussion, it can be derived that even the scientific techniques of Polygraph

and Narco-analysis also have certain restriction and there are scope of errors. Also, it can be said

that since these tests are used for in order to record the change in the physiological responses, but

instead of that when these tests are conducted involuntarily on the accused without his consent, it

generally lead to the emotions such as fear, anxiety, confusion etc. The mental state of the accused

generally produces highly abnormal physiological responses, which might mislead to the examiner

and there is a fear of loss of memory or ‘memory hardening’ of the accused because he’s been

constantly asked in the intervening time-periods. The Supreme Court by this prolonged judgement

held that the Polygraph, Brain-mapping and Narco-analysis are cruel, inhuman and degrading

treatment, thus cannot be permitted.

Although the judgement had also created a space for some problems also, just as-

1) The judgement doesn’t provide the exact position as to how the investigating authorities

will take this subject and how this fact will be dealt by these that even when we have access

to such scientific methods in the current times, but still unreachable.

2) The Judgement doesn’t provide any solution in the situation where the accused has

voluntarily agreed to pursue the right against the self-incrimination and still causes

problems at the end.

3) Before the advent of these methods, the police used to follow the methods of coercion and

torturing the accused in order to make him tell the important information out of him. This

judgement is also silent about the fact that now how will such situation be taken care of?

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 Bibliography-

1) Chandrachud , Justice Y.V., The Law Lexicon, (2nd edition, 2006), pg.- 1298.

2) Black’s Law Dictionary,9th Edition.

3) State of Bombay v. Kathikalu, AIR 1961 Cri LJ , Vol 2, 2007.

4) AIR 1964 SC 332.

5) Smt. Selvi & Ors. v. State of Karnataka, at 165, 223.

6) (2010) 7 SCC 263.

7) 2006 Crl.L.J.2401

8) The litmus test, available at http://indiatoday.intoday.in/story/narco-analysis-test-on-

stamp-scam-accused-abdul-karim-telgi/1/196613.html,

9) 1978 AIR 597

10) Jain, M.P., Indian Constitutional Law, (2007, 5th Edn), Wadhwa publications, Nagpur

11) NHRC Guidelines, National Human Rights Commission. Available at

http://nhrc.nic.in/Documents/sec-3.pdf,

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