Author: Ankur Srivastav
5th Year B.A. LL.B
Chandigarh University, Chandigarh
NAME OF THE COURT: Supreme Court of India
APPELLANT: Smt. Selvi & ors.
RESPONDENT: State of Karnataka & Anr.
DATE OF JUDGEMENT: 5th May 2010
BENCH: Hon’ble (CJI) K.G. Balakrishnan, Justice R.V. Raveendran, Justice J.M Panchal
CITATION: (2010) 7 SCC 263 (INDIA)
“Technology is a useful servant but a dangerous master.” – Christian Lous Lange
This commentary will be dealing with the Judgement of Smt. Selvi v. State of Karnataka, which has given a good fight on behalf of humanity against technology. The judgment, pronounced by the then Hon’ble Chief Justice K.G. Balakrishnan, Justice R.V. Raveendran and Justice J.M Panchal declared the Narco analysis, brain mapping, and fMRI and polygraph test as unconstitutional and void.
Technology has given the human race a futuristic development, but that doesn’t mean that every single person or work should be dependent on that particular thing only.
In India, the judiciary is one of the main pillars of the law where recent developments and the rapid expansion of innovations in science have given efficiency to investigation processes. It has also brought with it the acceptance of evidence with new aspects and complexities. Consequentially, there is unavoidable complexity regarding what can be accepted as evidence in Court. Tests, such as Narco analysis and fMRI are examples of scientific developments that have become increasingly common in the Indian Law system.
The tests mentioned above, deal with the psychological and cognitive perspective of the stimuli.
FACTS OF THE CASE
In the year 2004, Smt. Selvi and others filed the first batch of criminal appeals, which were followed by appeals in the years 2005, 2006, and 2007 and 2010 and were taken together by the Hon’ble bench of the Supreme Court through a Special Leave Petition on the 5th of May, 2010. In this current batch of criminal appeals, objections have been raised concerning instances, where the accused, suspect, or witness in an investigation is a person who has been subjected to these trials without their consent. Such measures have been defended, citing the importance of extracting information that may help investigative agencies, prevent future criminal activities as well as in situations, where it is difficult to collect evidence through the ordinary means.
It has also been urged that administering these techniques does not cause any physical harm and that the extracted information will only be used for investigative efforts and will not be admitted as evidence during the testing phase. It is claimed that the improvement in fact-finding during the investigation phase will result in an increase in the prosecution rate as well as the percentage of acquittal. Yet, another line of argument is that these scientific techniques are an alternative to the purported widespread use of alleged third-degree methods by investigators. Primary contention that is involved in the case is the involuntary administration of improvised techniques, which raise questions about the protective scope of the right against self under Article 20 (3) of the Indian Constitution.
1. Whether the involuntary administration of the impugned techniques violates the ‘right against self-incrimination’ enumerated in article 20(3) of the Constitution?
I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?
I-B. Whether the results derived from the impugned techniques amount to ‘testimonial compulsion’, thereby attracting the bar of Article 20(3)?
2. 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?
- The Appellant contended that these scientific techniques are a softer alternative to the widespread use of third-degree methods by investigators and so a violation of the fundamental right provided under Article 20(3).
- By citing the importance of extracting information, the defendants argued that these could help investigation agencies prevent future criminal activity and in situations in which it becomes difficult to collect evidence through conventional
- Reliance was placed upon specific provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to cooperate fully with the investigating agencies.
- There has been no physical harm from their application, and the extracted information will only be used to bolster investigative efforts. It will not be admitted as evidence during the trial phase.
- The information extracted through these techniques cannot be equated with the obligation of a testimonial, as the test subject is not required to give an oral answer, which may be beyond the scope of Article 20 (3). During the investigation phase, the finding will improve, and thus, the rate of acquittal will increase along with the increase in the prosecution rate.
The judgment is one of its kind which deals primarily with all new aspects related to privacy and right against self-incrimination protected by Article 20 (3) of the Indian Constitution.
Hon’ble K.G. Balakrishnan (C.J.I.) has provided the majority part of the judgment, stating that Article 20 (3) of the Indian constitution emphasises prominently on the aspect of self-incrimination. But, the minority aspect, i.e. confidentiality (right to privacy) and due process has not been given an essential place in this entire judgment. However, it is an intrinsic and critical part of it.
The field of criminology has expanded rapidly during the past few years, and there has been an increase in demand for reciprocal methods to improve the efficiency of fraud detection and interrogation. In the proclamations of police investigations, manual labour has at times been substituted for complicated and time-consuming studies in the belief that direct methods produce quicker results.
This judgment focuses more on the significant part, i.e. the interpretation of Article 20(3). However, the minor aspect of the judgment encompasses the essential elements of constitutionalism, i.e. privacy and due process, and these aspects are less heavily emphasised upon. Though every component of the Constitution has its characteristics, a little more emphasis on minor issues of the verdict would help to balance the cause. The judgment at its initial stage had covered how each of these tests violates the principles of privacy. But as it focuses more on the ‘Right to self-incrimination’, the weightage of the judgment tends to shifts to that side more than privacy.
The judgment had also created a space for some problems, just as-
- The judgement did not provide an exact position on how the investigating officer will take up the subject and how to deal with the fact that though we currently have access to such scientific methods, they are still unreachable.
- The Judgment did not provide redress in the situation where the accused had voluntarily agreed to pursue the right against self-oppression.
- Before these methods came up, the police followed the means of coercion and tortured the accused to disclose relevant information. The decision was also silent about the fact that how will such a situation be taken care of now.
Thus, the judgment rendered the practice of considering narco-analysis, brain mapping, and fMRI and polygraph tests unconstitutional and void in the eyes of the law.
According to the changes that happen in society, the legal system also needs to be changed. No matter how right a decision is, it is always subject to criticism because there is still room for improvement. It can be said that since these tests are used to record changes in physiological responses when these tests are conducted unexpectedly on the accused without his or her consent, it gives rise to feelings like anxiety, confusion, and fear etc. The mental state of the accused usually produces highly unusual physical reactions, which may mislead the examinee and cause the loss of the accused’s memory. In this long-standing decision, the Supreme Court held that polygraph, brain-mapping and narco-analysis are cruel, inhumane and degrading treatment and thus, not permissible.
Therefore, in the context of the proliferation of crimes against society, it is necessary to take into account the need of community at tremendous and requires a thorough and appropriate investigation against individual rights, while ensuring that constitutional rights are not violated.
 Selvi v. State of Karnataka, AIR 2010 SC 1974 (India).
 Shivangi Goel, Smt Selvi & Ors vs. State of Karnataka, Law times Journal (Aug. 18, 2019); available at: https://lawtimesjournal.in/smt-selvi-ors-vs-state-of-karnataka/.