The
case came up for consideration in the Supreme Court of India in 2010 where the
court had to decide the constitutional validity of various techniques such as
narcoanalysis, Polygraph test and Brain Mapping. The contention here, including
others, was that these techniques were voilative of Article 20(3) of the Indian
Constitution that provided for the Right against Self Incrimination. The admissibility
of the results in evidence and accuracy of the techniques was also in question
before the court in this landmark case. The Court, discussing variety of
foreign and domestic precedents, alongwith the provisions in the Constitution,
followed an approach that was different from the traditional Indian Judicial
approach and expanded the scope and ambit of the various articles of the
Constitution, keeping in mind the advancements in science and technology along
with public welfare.
In an
elaborate judgment by the then Chief Justice K.G. Balakrishnan, the Supreme
Court started off with framing the issues that it would be looking into. The
Court analyzed all the scientific techniques in detail and cited numerous
foreign precedents on each of the technique and its role in judicial decision
making and validity. The Polygraph Test was looked into first with deep focus.
The test works on the theory that when a subject is lying in response to a
question, he will produce physiological responses that are different from those
that arise in normal course. The various instruments attached to the subject
help in recording these responses. The Court discussed the limitation of the
technique by saying that “the premise behind these tests is questionable
because the measured changes in physiological responses are not necessarily
triggered by lying or deception. Instead, they could be triggered by
nervousness, anxiety, fear, confusion or other emotions. Furthermore, the
physical conditions in the polygraph examination room can also create
distortions in the recorded responses… The mental state of the subject is also
vital since a person in a state of depression or hyperactivity is likely to
offer highly disparate physiological responses which could mislead the
examiner.”[1] “The Court further
emphasized how each of the tests could lead to the discovery of false and even
misleading information. In questioning the scientific reliability of
narcoanalysis, a technique which involves administration of a drug that causes
the subject to enter into a hypnotic trance and become less inhibited, thus
making the subject more likely to divulge information. 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.”The Court also noted that some subjects of narcoanalysis “can
become extremely suggestible to questioning” while others might “concoct
fanciful stories.” 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.”[2]
Moving
on, the Court looked into history and evolution of the concept of “right
against self incrimination”, which is provided in Article 20(3) of the
Constitution. This right had its origins with the Inquisitorial system in which
the accused had no legal training and was vulnerable to the suggestive and
misleading questioning. The right to counsel emerged, expanded to create right
to silence and later on the right against self incrimination. The court’s
reasoning for the existence of such a right was “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.”[3] The Court also looked into
the various arguments against the right such as that this privilege against
self incrimination protects the guilty at the cost of such utilitarian
objectives. Compelling public interest against the right was also discussed in the
latter part of the judgment and it was ruled that “Invocations of a compelling
public interest cannot justify the dilution of constitutional rights.”[4]
Article 20(3) and its interpretation
Article
20(3) of the Constitution reads – “No person accused of any offence shall be
compelled to be a witness against himself”.
The
Court first discussed various cases and quoted Nandini Satpathy v. P.L.
Dani MANU/SC/0139/1978 : (1978) 2 SCC 424, in which the judges
relied on the Miranda Rights case[5] of the United States to
interpret that Article 20(3) should be interpreted broadly so as to make it
applicable not only to trial but also investigation. Looking into the question
of who is the accused as provided in the Article 20(3) the Court quoted the Kathi
Kalu Case[6] -“To bring the statement
in question within the prohibition of Article 20(3), the person accused must
have stood in the character of an accused person at the time he made the
statement. It is not enough that he should become an accused, anytime after the
statement has been made.” The Court also looked into Section 161 (1) of the
CrPC to rule that 20(3) is applicable to people who are formally accused as
well as suspects. The Court also
held- “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 information or materials collected at an earlier stage of
investigation can prove to be inculpatory in due course.”
Another
issue that came up for consideration was that is the techniques amounted to
testimonial compulsion and the court, in agreement with the MP Sharma Case,
observed that “the phrase `to be a witness' is not confined to oral testimony
for the purpose of invoking Article 20(3) and that it includes certain
non-verbal forms of conduct such as the production of documents and the making
of intelligible gestures.”[7] The Court however was in
disagreement with its decision in Kathi Kalu Case where the court had observed
“`To be a witness' means imparting knowledge in respect of relevant fact, by
means of oral statements or statements in writing, by a person who has personal
knowledge of the facts to be communicated to a court or to a person holding an
enquiry or investigation”. The court stressed that “we must take note of the
fact that the application of the testimonial- physical distinction can be
highly ambiguous in relation to non-verbal forms of conduct which nevertheless
convey relevant information.”[8] The techniques that were
used involved use of gestures, which were usually in the form of nodding etc.
These gestures essentially “imparted” the knowledge that was “relevant” and
were by person with his personal knowledge. This interpretation of the court of
the Kathi Kalu Case seems to be on good logical grounds and the improvement in
science and technology had demanded an expanded interpretation of the transfer
of knowledge that occurs during these techniques.
“On the issue of whether the
Code of Criminal Procedure (Cr.P.C.) permits the impugned techniques, the
manner in which the Court interprets Sections 53, 53A and 54 of the Cr.P.C. has
implications for statutory interpretation. The Court read the forensic
techniques mentioned in the Explanation to Section 53 of the Cr.P.C ejusdem
generis and concluded that techniques mentioned therein are with
respect to collection of “physical evidence” and do not include techniques that
will lead to collection of “testimonial evidence.” In doing so, it took note of
the fact that the Legislature was aware of the fact that these techniques
existed in 2005, when the Explanation was added to Section 53. The Court holds
that the impugned tests not being enumerated, indicates that the Legislature
did not intend them to be read into “medical examination” under the Cr.P.C. In
the process, the Court recognizes the fact that constitutional values need to
be infused into all branches of law. It thus sends the message, which is often
lost, that criminal procedure is an extension of the Fundamental Rights
guaranteed under Part III of the Constitution.”[9]
Further on, the Court ruled that “the
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).”[10]
Article 21 of the Indian Constitution
The learned judges also observed that “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
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.” The court also observed that
these techniques were in violation of the right to privacy, inflicted mental
pain and as the person had no conscious control, the techniques were voilative
of the Article 21 read with Article 20(3).
“On the issue of whether the
Code of Criminal Procedure (Cr.P.C.) permits the impugned techniques, the
manner in which the Court interprets Sections 53, 53A and 54 of the Cr.P.C. has
implications for statutory interpretation. The Court read the forensic
techniques mentioned in the Explanation to Section 53 of the Cr.P.C ejusdem
generis and concluded that techniques mentioned therein are with
respect to collection of “physical evidence” and do not include techniques that
will lead to collection of “testimonial evidence.” In doing so, it took note of
the fact that the Legislature was aware of the fact that these techniques
existed in 2005, when the Explanation was added to Section 53. The Court holds
that the impugned tests not being enumerated, indicates that the Legislature
did not intend them to be read into “medical examination” under the Cr.P.C. In
the process, the Court recognizes the fact that constitutional values need to
be infused into all branches of law. It thus sends the message, which is often
lost, that criminal procedure is an extension of the Fundamental Rights
guaranteed under Part III of the Constitution.”[11]
Conclusion
This judgment is indeed a
progressive one and has led to shedding of the Indian Judiciary previous image.
The interpretation of the Court of the various provisions of law and precedents
starting from its differentiation between physical evidence and testimonial
evidence (interpretation of Kathi Kalu Case) to ruling that Compelling public
interests donot over ride the constitutional promises has been a welcome
development. These tests are voilative
of human rights and our fundamental rights and the Indian Judiciary has shown a
welcome step in taking a modernistic view.
The Court in this case, made a
slight error by leaving a loophole regarding the aspects of a test that is
taken with consent. Acknowledging that their decisions would affect the public
and future of the country, the court in this case proved to be a great
protector of a citizen’s rights by giving a bold judgment which could have gone
either way.
Dev Chaudhary
Dev Chaudhary
[1]
Selvi & Ors.
Vs. State Of Karnataka & Anr., (2010) 7 SCC 263, PARA 16
[2] vivek jain. 2010. "SMT. SELVI AND
ORS. VERSUS STATE OF KARNATAKA: CASE NOTE"
http://works.bepress.com/vivek_jain/1
[3] Selvi & Ors. Vs. State Of Karnataka
& Anr., (2010) 7 SCC 263, PARA 91
[4] Selvi & Ors. Vs. State Of Karnataka
& Anr., (2010) 7 SCC 263, PARA 222
[5] Ernesto
Miranda v. Arizona 384 US
436 (1966)
[6] State of Bombay v.Kathi
Kalu Oghad and Ors. MANU/SC/0134/1961 : [1962] 3 SCR 10
[7] Selvi & Ors. Vs. State Of Karnataka
& Anr., (2010) 7 SCC 263, PARA 133
[8] Selvi & Ors. Vs. State Of Karnataka
& Anr., (2010) 7 SCC 263, PARA 139
[9] Prof. Mrinal Satish on the Selvi Judgment: Guest Post, (May 10, 2010) http://legaldevelopments.blogspot.com/2010/05/prof-mrinal-satish-on-selvi-judgment.html
[10] Selvi & Ors. Vs. State Of Karnataka & Anr., (2010) 7 SCC 263, PARA 165
[11] Supra
note 9
