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Selvi v. State of Karnataka

Supreme Court of India · 5 May 2010 · 3 judges

Compulsory narcoanalysis, polygraph and BEAP tests violate Article 20(3) and Article 21; no one may be forcibly subjected to them, and even voluntary test results are inadmissible, though facts later discovered may be proved under Section 27.

Facts

A batch of criminal appeals raised the legality of subjecting accused persons, suspects and witnesses, without their consent, to narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test during investigation. In some of the impugned judgments, reliance was placed on provisions of the CrPC and the Evidence Act requiring cooperation with investigation. It was held that polygraph and BEAP results are not 'testimony' because no verbal answers are needed, and that narcoanalysis revelations do not attract Article 20(3) because their inculpatory or exculpatory nature is unknown when the test is done. The Union of India, the CBI and the State of Karnataka defended compulsory use of the tests as aids to investigation and an alternative to third degree methods.

Questions before the Court

  1. Does the involuntary administration of narcoanalysis, polygraph examination and the BEAP test violate the right against self-incrimination in Article 20(3)?
  2. Do the results of these tests amount to 'testimonial compulsion', and does their investigative use create a likelihood of incrimination?
  3. Is the involuntary administration of these tests a reasonable restriction on personal liberty under Article 21?
  4. Can the tests be read into 'such other tests' in the Explanation to Sections 53, 53-A and 54 of the CrPC?

What the Court held

  • Article 20(3) extends to the investigation stage and, read with Section 161(2) CrPC, protects accused persons, suspects and witnesses. It protects the choice between speaking and remaining silent, whether the answers later prove inculpatory or exculpatory.
  • The results of all three tests are a means of imparting personal knowledge about relevant facts. They bear a testimonial character and come within 'testimonial compulsion', so compelled administration attracts Article 20(3).
  • 'Such other tests' in the Explanation to Sections 53, 53-A and 54 CrPC is confined, applying ejusdem generis, to examination of physical evidence and does not cover these techniques.
  • Forcible administration violates substantive due process under Article 21, intrudes into mental privacy, amounts to cruel, inhuman or degrading treatment, and conflicts with the right to fair trial. A compelling public interest cannot justify diluting these rights.
  • No one may be forcibly subjected to these tests, in criminal investigation or otherwise. Voluntary tests are allowed with safeguards, including the NHRC polygraph guidelines, but results are inadmissible; facts later discovered with their help may be admitted under Section 27 of the Evidence Act.

Why it matters

The judgment treats the results of narcoanalysis, polygraph and brain-mapping tests as testimonial, so that compelled testing violates Article 20(3), and reads Article 21 to include protection of mental privacy and against cruel, inhuman or degrading treatment in interrogation. It applies the majority view in Kathi Kalu Oghad as the controlling precedent on testimonial compulsion and directs that the NHRC polygraph guidelines be strictly followed, with similar safeguards adopted for narcoanalysis and the BEAP test.

In the Court's words

Copied from the official judgment; each passage links to its page.

“In light of the preceding discussion, we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as ‘personal testimony’, since they are a means for ‘imparting personal knowledge about relevant facts’. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of ‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).”
Page 186 of the judgment
“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.”
Page 247 of the judgment
“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.”
Page 249 of the judgment
“Going by the language of these principles, we hold that the compulsory administration of the impugned techniques constitutes ‘cruel, inhuman or degrading treatment’ in the context of Article 21. It must be remembered that the law disapproves of involuntary testimony, irrespective of the nature and degree of coercion, threats, fraud or inducement used to elicit the same.”
Page 230 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Smt. Selvi & Ors. v. State of Karnataka
Case
Criminal Appeal No. 1267 of 2004, with connected criminal appeals
Decided
5 May 2010
Bench
K.G. Balakrishnan, R.V. Raveendran, J.M. Panchal
Opinions
Unanimous. Judgment of the Court delivered by K.G. Balakrishnan, C.J.I.

Questions on this case

4 questions in live Law Maker papers mention this case. A few from free papers:

  1. Question 1 · Landmark Judgments Practice Set 1

    With reference to Selvi v. State of Karnataka (2010), consider the following statements: 1. The compulsory administration of narcoanalysis, polygraph examination and the Brain Electrical Activation Profile test violates the right against self-incrimination under Article 20(3). 2. These techniques may be administered voluntarily, subject to safeguards. 3. The results of a test taken with the subject's consent are, by themselves, admissible as evidence. Which of the statements given above is/are correct?

    1. A. 1 only
    2. B. 2 and 3 only
    3. C. 1, 2 and 3
    4. D. 1 and 2 only
    Show the answer

    D. 1 and 2 only

    The Court held that compulsory administration of these techniques violates Article 20(3) and that no individual should be forcibly subjected to them, while leaving room for voluntary administration with safeguards. Even with consent, the results by themselves cannot be admitted as evidence because the subject has no conscious control over the responses, so statement 3 is wrong; information later discovered with the help of a voluntary test may be admitted under the discovery provision.