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GUJARAT NATIONAL LAW UNIVERSITY

Smt. Selvi & Ors.


Vs.
State of Karnataka

SUBMITTED BY: AHTZAZ AHMED


LL.M. (CONSTITUTION & ADMINISTRATIVE LAW)

SUBMITTED TO: MR. ANANT DEOGAONKAR


ASSISTANT PROFESSOR OF LAW
CASE DETAILS

Full Case Name: Smt. Selvi and Ors.Vs.State of Karnataka

Citation: Criminal Appeal Nos. 1267 of 2004, 54, 55, 56, 57, 58 and 59 of 2005, 1199 of
2006, 1471 of 2007, 987 and 990 of 2010 (Arising out of SLP (Crl.) Nos. 10 of 2006 and
6711 of 2007)

Date of Decision: 5 May 2010

Bench: K.G. Balakrishnan, C.J., R.V. Raveendran and J.M. Panchal, JJ

Forum: Supreme Court of India

Prior History: From the Judgment and Order dated 10.09.2004 of the High Court of
Karnataka at Bangalore in Criminal Petition No. 1964 of 2004
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hhhhhhhhhhhhhhhhhhhhhhhhhhIntroduction:

Aswwewknow that as te chnology is evolving each passing day,


n o a s p e c t o f o u r l i v e s r e m a i n s duntouched. The progression of innovation
has made human lives simpler as well as all the more difficult. It has made its
place in the field of criminology moreover. Most crooks are sufficiently shrewd
to get away from the scene of wrongdoing and shroud the weapons utilized as a
part of the commission of the wrongdoing. The onus of demonstrating the
wrongdoing lies with the State which needs to demonstrate the case certain to
really get the blamed sentenced. It is in fact a hard undertaking and feeble
treatment of the case by the police at times makes it much harder. But now, the
prosecuting authorities can take a sigh of relief with the emergence of the truth serum
test, popularly known as thenarco-analysis test. The term narco-analysis was
first introduced in the year 1922. It was then used for the use of narcotics to induce a
trance like state wherein various questions were put up to him. The test has given an
entirely new dimension to the study of forensic science. It is that invention of the human
brain which has managed to curb the imagination and will-power of human mind thereby
preventing him from manipulating his answers.

A standout amongst the most entrancing issues emerging in the field of Narco Analysis
test is that whether it is in the impedance with the Fundamental rights given under Article
20 (3) of the Constitution of India which says that no person accused of an offence shall be
compelled to be a witness against himself. It is the most arguable issue among the
legitimate clique, media and regular masses in view of its legitimacy as a logical
instrument of examination and its acceptability in the court of law. The issue of using
Narco analysis test as a tool of instrument of interrogation in India became clear after the
judgment of smt selvi and ors. Versus state of Karnataka. It is critical that, as of late, there
had been expanding and frequently ineffective plan of action to coercive narco and brain-
mapping tests in a number of high-profile cases, though this case, by making a landmark
judgment in Indian judiciary likely demonstrated the sacred nature of fundamental rights
administering our country.hhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh
The Article 20(3) of the Constitution of India specifies a prohibition that no person
accused of an offence shall be compelled to be a witness against himself. This being a
fundamental right of the accused has been divided into several components to understand
its true import.1 jhjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj

The article 20(3) of the Indian constitution gives protection

a) To a person accused of an offence mmmmmmmmmmmmmmmmmmmmmm

b) Against the compulsion to be a witness; llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll

c) Against himself2 wwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwwww

The existence of these above three ingredients must be there to invoke article 20(3) .The
article embodies the principle of protection against compulsion of self incrimination. It
is clearly held in case Kameshwar v .State of Bihar3 that, unless the constitution itself so
provides, a person cannot enter into a contract to give up or not to claim a fundamental
right. In any criminal investigation, interrogation of the suspects and accused plays a vital
role in extracting the truth from them. From time immemorial, a few strategies, the vast
majority of which depended on some type of torment have been utilized by the exploring
offices to inspire data from the blamed and the suspects.4 wwwwwwwwwwwwwwww

The general rule set down in common law criminal jurisprudence is that unless the
prosecution must establish his guilt, a person is presumed to be innocent. Secondly, a
person accused of an offence need not make any statement against his will. mmmmm

Since Supreme Court in the present case utilized outside points of reference appropriate to
these tests before achieving the conclusion, henceforth we have to comprehend the
lawfulness of these tests in the highlight of U.K. and U.S. Courts.fffffffffffffffffffffffffff

1
Use of modern scientific tests in investigation and evidence: mere desperation or justifiable in public interest?
(2009) 2(1) NUJS <http://nujslawreview.org/2016/12/03/use-of-modern-scientific-tests-in-investigation-and-
evidence-mere-desperation-or-justifiable-in-public-interest/> accessed on 16th july 2017
2
M.P. Sharma v. Satish Chandra [1954] AIR 300 [SC]
3
[1962] AIR 1166 [SC]
4
Article 20 (3) Of Constitution of India And Narco Analysis < http://www.legalserviceindia.com/article/l375-
article-20-%283%29-of-constitution-of-india-and-narcoanalysis.html> accessed on 16th july 2017
accessed on 6th august 2010 http://www.legalserviceindia.com/article/l375-article-20-%283%29-of-
constitution-of-india-and-narcoanalysis.
Britain: In Britain no witness whether he is a party or a stranger is compelled to answer
any question or to produce any document which may have the tendency to express any
charge may be levelled against him, any fine or penalty levied against him or any
forfeiture of any property. nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn

U.S.: In U.S. also same principle is applicable where no person shall be compelled in any
criminal case to be a witness against himself. Here scope of applicability is broader where
it is applicable to witness as well as parties to proceedings also.

Brief facts of case and its Issues & Challenges:

Indian judiciary in Smt. Selvi & Ors. v. State of Karnataka recognised the abusive nature
of narcoanalysis, brain-mapping, and polygraph tests where judgement held by prohibiting
all involuntary administration of such tests, holding them to be cruel, inhuman and
degrading treatment.5
In this case subsequent appeals filed by Smt. Selvi and others which was 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. Objections have
been raised where individuals who are the accused, suspects or witnesses in an
investigation have been subjected to these tests without their consent. Whether the
involuntary administration of the impugned techniques comes under protective scope of
the `right against self-incrimination' under Article 20(3) of our Constitution?
The following legal issues were raised in the present case:

I. Whether the involuntary administration of the impugned techniques violates the `right
against self-incrimination' enumerated in Article 20(3) of the Constitution?
II. I-A. Whether the investigative use of the impugned techniques creates a likelihood of
incrimination for the subject?
III. I-B. Whether the results derived from the impugned techniques amount to `testimonial
compulsion' thereby attracting the bar of Article 20(3)?
IV. Whether the involuntary administration of the impugned techniques is a reasonable
restriction on `personal liberty' as understood in the context of Article 21 of the
Constitution?6

5
Smt. selvi & ors. v. state of Karnataka [2010] AIR [SC]
6
Smt. selvi & ors. v. state of Karnataka [2010] AIR [SC]
Contentions by the Parties:
Appellant:
1. 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).
2. 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.

Respondent:
1 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.
2 These techniques are used to only to strength or support investigation process by
police.
3 That these scientific techniques are a softer alternative to the regrettable and allegedly
widespread use of `third degree methods' by investigators.

Judgment Held:

The Supreme Court gave its decision is in line with Constitutional requirements and
international human rights law where court held that all three tests attracts article 20(3)
where involuntary administration of these tests amounts to testimonial compulsion .
Secondly, it is violation of article 21 which amounts to an invasion of privacy by intruding
into a subjects mental privacy, denying an opportunity to choose whether to speak or
remain silent, and physically restraining a subject to the location of the tests.

Critical Case Analysis:


We have seen that, a three court bench of honourable Supreme Court held that involuntary
administration i.e. without the consent of the subject who is to undergo these tests, the
administration of Narcoanalysis, Polygraph and Brain mapping is unlawful,
unconstitutional and therefore, inadmissible in the court of Law. However, Court
neglected to remember this that in India, government is for the people, of the people, by
the people and people are not for the law. The very question of the administration is to
make any law which builds up a climate of trust, quality and dauntless conjunction among
the general population and that law should serve people in general enthusiasm for huge.
To keep up such condition or to make welfare country, police authorities are vested with
wide powers as they assume a significant part in keeping up peace, in upholding controls
for counteractive action and identification of violations, and so on. Be that as it may, these
forces are regularly mishandled.7 Work stack, absence of examination offices, political
weight to comprehend the case as quickly as time permits, unreasonable desires are a
portion of the elements that incite easy routes the police authorities grasp. So with a
specific end goal to destroy this totally, science ought to be completely conjured. Help of
scientific instruments and techniques ought to be taken. But as we have seen that now and
again these examination instruments will be considered as discretionary and explicit
infringement of Rule of Law yet higher authorities should realize this is the high time to
welcome these examination devices as no prisoner could ever be blinded again.8 Law
ought to be considered as a living procedure, it could be changed as indicated by the
adjustments in the public eye, science, and morals et cetera.
With the progression of the innovation, offenders are likewise utilizing exceptionally
complex and current methods to perpetrate the violations which pushes our lawful morals
to take after the improvements and advances that occur in science to counter the
expanding number of criminal exercises in the present day situation however it is a
genuine disillusionment that the honble Supreme Court has delivered a judgment as if it is
still in ancient or medieval period.
In the judgment, Supreme Court managed the most noteworthy inquiries in regards to the
central rights accessible to each native in India, the privilege of fast and reasonable trial
and the interest of successful examination in India. The bench itself perceived the
significance of issue before it, by observing: Ordinarily the judicial task is that of

7
Ashirbani Dutta, Custodial Deaths: A Shameless Truth behind the Bars, Criminal Law Journal, October
2006, p 241 < http://shodhganga.inflibnet.ac.in/bitstream/10603/102549/12/12_chapter%205.pdf> assessed on
16th july, 2017
8
Khatri v. State of Bihar [1981] AIR 928 (SC)
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 9 still in the wake of watching the greatness
of difficulty, the court has given such sort of unbending judgment. The worry which is
appeared by the Supreme Court itself, in number of cases, appears to have fallen like a
leaf.kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk
There were numerous high court judgments where judges had given defended motivations
to utilize such tests as examination instruments of such tests however the Supreme Court
gruffly dismisses these contentions by saying that these are loaded with wrong and
preposterous. The Karnataka High Court in one case interpreted the compulsion
requirement under article 20(3) with duress involving serious physical harm or threat,
and discovered that the gentle torment from the organization of an infusion important to
instigate the narcoanalysis test did not achieve the imperative level of harmed to constitute
compulsion.
Even the Madras High Court interpreted the word compulsion in the same manner.
They found that impulse by and large means utilizing physical or other supposed third
degree strategies for cross examination, despite the fact that a subject might be compelled
to experience narcoanalysis in any case, the announcements made amid the subsequent
tests themselves are intentional.10 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. kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk
Some relevant extracts from the judgments which itself shows the importance of the
impugned techniques and how the court has given many apparent flaws in the judgment. It
shows that the piece of judicial mind is still confusing.
1. 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

9
Selvi v. State of Karnataka, Para 1.
10
Dinesh Dalmia v. State [2006] CriLJ 2401
2. these scientific techniques are a softer alternative to the regrettable and allegedly
widespread use of `third degree methods' by investigators11
3. The provisions in the Code of Criminal Procedure, 1973 that provide for `medical
examination' during the course of investigation can be read expansively to include the
impugned techniques, even though the latter are not explicitly enumerated.

The court has held in paragraph 81: 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's case12, Hence, we must examine 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'. wwwwwwwwwwkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk

If court is emphasising on the approach of Maneka Gandhis case then there is no need to
ignore the other cases of D.K. Basu v. State of West Bengal,12State of M.P. v.
Shyamsunder Trivedi and Ors13, Inder Singh v. State of Punjab14, Smt. Nilabati Behera v.
State of Orissa and Ors15 and so on, there is a long list where honble high courts and
honble Supreme Court has expressed anguish over inhuman treatment in custody and
have demanded scientific investigation by authorities. But what happened to Supreme
Court in this case, if already n number of rights will be available to the accused then it
can be safely assumed that the courts are biased towards the accused persons and are not
following the principle of natural justice of Rule against Bias. Our judiciary system
focused on the fair trial system by which justice is to be done to the victim but if the
justice is to be delivered by following such a substantive due process then regrettably
verdict delivered cannot be termed as justice delivered. The concept of fair trial is not to
be seen from the view point of accused only. In respect of fair trail, fair investigation
should be a part of constitutional rights of every citizen but Rule of Law should be keep in
mind where investigation has to be fair and judicious. This constitutional guarantee is not
available where the tainted investigation is directed against the accused person having an
effect on him. It should be equally available for the aggrieved person and victim to allege
that he is not being treated fairly by injudicious investigation to favour the accused person.

11
Selvi v. State of Karnataka, Para 2
12
[1997] RCR Cri 1, (SC)372
13
[1995] 4 SCC 262
14
[1995]3 SCC 702
15
[1993] AIR (SC)1960
Thus, it would violate his constitutional rights. The concept of fair trial and fair
investigation should not only to be considered from the point of view of liberty or the right
of the accused but also from the society and the victims point of view, otherwise they
would also suffer on account of injudicious investigation and it will turn a fair trial into a
casualty.16 kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk

On the off chance that we watched the judgment in detail, we will find that the court is
terrible in giving the judgment. All through the entire judgment court perceived the
accused's right to privacy, yet in the meantime, they neglected to keep up the balance
between the privacy of the accused on the one side and prevention of crime on other side.

In para 192 the court has remarked: An individuals 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

Be that as it may, here the analyst needs to highlight the extent of ideal to protection. This
right is not an absolute right. Its extension can be limited. There are many examples in
which right to privacy was restricted, if we see the Immoral Traffic Prevention Act, 1956
which says no right to privacy available to sex workers. They can be forced to undergo
any sort of tests even HIV, so that society at large can be saved from the suffering of
venereal diseases.

So as it were, the extent of ideal to security can be restricted when the enthusiasm of the
general public comes into picture. In the present case, it appears that the request of the
general public is not under any condition vital for the court.

So we can state after the itemized investigation of the present case that the protection
under Art. 20(3) of the Constitution ought not be reached out so as to hamper the social
interest. Indeed, even the sociological school of law set up that if there is any contention
between the social interest and public interest then social interest going to prevail over
individual interest. kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk

Rather than respecting the logical apparatuses of examination, the court is considering
them to be objects of advancement. The court is right that new systems require peer audit

16
Gurbax Singh Bains v. State of Punjab,[ 2013] RCR Cri 2, 246
and extraordinary examination, for that there is no compelling reason to dispose of the
procedures. Truth be told, the courts ought to support investigate, tests in regards to
upbraided strategies with the goal that greatest advantage could be removed from
them.Hence, tests like narco-analysis, Brain Mapping and Polygraph test should be taken
outside the purview of Art. 20(3) of The Constitution of since the social interest come
into picture. Also, the right against the self-incrimination establishes the basic fact that the
accused person is giving statement against himself and hes not even asked for the
consent, then it is definitely going to implant wrong ideals in the current progressive
societies. Thusly, with reference to the expansion of wrongdoings against society, it is
important to remember the need of the general public everywhere and the need of an
exhaustive and appropriate examination as against singular rights while guaranteeing that
sacred rights are not encroached.17 kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk

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Conclusion:

So after analysing the case in detail, the researcher observed that the decision given by
Supreme Court in Selvi v. State of Karnataka is unyielding and loaded with blunders. It
appears to be every one of the conflicts for narco-analysis, polygraph and brain mapping
were not altogether considered by the court. t resembled the court from the initially
starting was in against these tests which appear to be biased from the side of the court. The
court did not think about the issues being faces by the researching experts while
explaining cases. The court should have kept in their mind that the police authorities or
investigation agencies have to be left with room in relation to using impugned techniques
under Article 20 (3) and Article 21otherwise no other option will be left to police officer
than to resort to custodial violence. There has been urge that novel and scientific tools of
investigation should be embraced. However, in present scenario where every individual
gives importance to modern techniques, cooperation was expected from the court. In cases
where no direct evidence is available it becomes extremely difficult for the investigating
authorities to detect crime. So in such cases, the court should understand the importance of
these scientific techniques. kkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkkk
17
Jain, M.P., Indian Constitutional Law, (2007, 5th Edn), Wadhwa publications, Nagpur
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 law based
rights development must take up a supported crusade against the utilization of intrusive
techniques like narcoanalysis and brain mapping. kkkkkkkkkkkkkkkkkkkkkkkkkkkkk