SELVI VS STATE OF KARNATKA : CASE SUMMARY
The Supreme Court in Smt. Selvi Vs. State of Karnataka 2010 (7) SCC 263 held that involuntary Polygraph Examination, Narcoanalysis and Brain Electrical Activation Profile (BEAP) during investigation of case violates Article 20 (3) of the Constitution.
Polygraph Examination is based on premise that a subject lying will produce physiological responses which will different from normal circumstances. Physiological responses are recorded through various instruments attached with the subject.
Narcoanalysis Test involves administration of intravenous drugs which impact the consciousness of the subject and he becomes less inhibited to answer any question put by administrators.
BEAP is a process for detecting whether subject is familiar with certain information by measuring activity in brain that is triggered by exposure of certain stimuli.
Whether administration of Polygraph Examination, Narcoanalysis and BEAP violates “right against self-incrimination” under Article 20 (3)?
Right against self-incrimination is Fundamental Right under Article 20 (3) of the Indian Constitution. Article 20 and Article 21 have been given exalted status under the Constitution and these Articles cannot even be suspended during emergency. Such rights are also available under USA jurisprudence under Fifth amendment. International Covenant on Civil and Political Rights also states that every one has right to not to be compelled to testify against himself or to confess guilt.
Section 161 (2) CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions which have tendency to expose him to criminal charge or a penalty or forfeiture. Section 313 (3) CrPC lays down that the accused will not make himself liable to punishment for not answering any question or giving false answers. Section 315 (1) CrPC mandates that if the accused does not tender evidence in his defense the same will not be subject of comment or any adverse inference.
The Court noted that right against self-incrimination is based on two premises – firstly, ensuring reliability of statement of the accused and secondly, such statement is made voluntarily. When a person is compelled to testify, there is higher chance of such testimony to be false.
It was contended before the Supreme Court that these techniques boost investigation and materials discovered after applying these techniques can be used as admissible evidence.
The Supreme Court concurred with the view taken in M. P. Sharma Vs Satish Chandra (1954) SCR 1077 and Nandini Satpathy Vs P. L. Dani (1978) 2 SCC 424 which held that right against self-incrimination is available at investigation stage. The court noted that after Miranda Vs Arizona 384 US 436 (1966), waring to the accused regarding right of silence has become ubiquitous feature in USA Criminal System. If no such warning is given, there is automatic presumption of compulsion. In India position is different as there is no automatic presumption of compulsion but if compulsion is proved statements given by accused is not admissible in evidence.
Rights against self-incrimination protects persons who have been formally accused as well as suspects of the crime. It also extends to witnesses who apprehend that their answers could expose them to criminal charges, witnesses cannot invoke protection of Article 20 (3) in administrative and quasi-criminal proceedings.
Whether results acquired trough these techniques are barred under Article 20 (3) ?
Only such material is protected under Article 20 (3) which lead to incrimination by themselves or furnish a link in chain of evidence which could lead to the same result. Any testimony for purpose of identification or corroboration with the facts already known to the investigators are not barred.
The Court held that compulsory administration of Narcoanalysis Test amounts to “testimonial compulsion” and triggers the protection of Article 20 (3). The Court also dispelled the arguments that Polygraph Test and BEAP are covered material evidence such as bodily substances or physical objects and held that compulsory Polygraph Test and BEAP will also be covered under “Testimonial” acts and will be in violation of Article 20 (3).
Whether involuntary administration of Polygraph Examination, Narcoanalysis or BEAP are covered under reasonable restrictions under Article 21 ?
The Supreme Court held that subjecting a person to Polygraph Examination, Narcoanalysis or BEAP violates right of privacy of accused persons. These techniques are also against fair trial. Subjects have no control over revelation made during drug induced stage as such it frustrates object of legal consultation provided to the accused.
Further the questionable scientific reliability of these techniques is in conflict of principle of “beyond reasonable doubt” in criminal proceedings.
The Supreme Court directed for strict adherence of guidelines issued by National Human Rights Commission in respect of Polygraph Examination. The Supreme Court directed for adoption of same guidelines for Narcoanalysis and BEAP.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.