SELVI v STATE OF KARNATAKA

FACTS OF THE CASE

Selvis daughter Kavita had married Shivakumar of a different caste against the
wishes of her family. Shivakumar was brutally killed in 2004, and Selvi and two
others became the suspects. Since the prosecutions case depended entirely on
circumstantial evidence, it sought the courts permission to conduct polygraphy
and brain mapping tests on the three persons. The court granted permission and
the tests were conducted. When the results of the polygraphy test indicated
signs of deception, the prosecution sought the courts permission to perform
narcoanalysis on the three persons. The magistrate directed the three to undergo
narcoanalysis. All of them challenged this decision in the Karnataka Hight
Court, but failed to get relief. They then went in appeal to the Supreme Court.
The Supreme Court, in a remarkable shift from its minimalist approach, held
that compulsory brain-mapping and polygraph tests and narcoanalysis were in
violation of Article 20(3) and 21 of the Constitution.
JUDGEMENT
The first issue raised by the court was whether the involuntary administration of
the impugned techniques violates rights against self incrimination under Art
20(3) of the constitution? It had two sub-issues; Issue 1A, whether the
investigative use of the impugned techniques create a likelihood of
incrimination for the subject? Issue 1B, whether the results derived from the
impugned technique amount to testimonial compulsion thereby attracting
Article 20(3)?
The court dealt with the first issue on a wide canvass. It first established the
interrelationship between the right against self-incrimination and the right to fair
trial, locating this in the realm of human rights. Drawing from Maneka Gandhi
case it was held that Art 20(3) should be construed with due regard to the
interrelationship between rights. For the court, the right in Article 20(3) should
be seen in relation with multiple dimensions of personal liberty under Art 21,
which include right to privacy, right to fair trial and substantive due process.
Infusion of constitutional values into all branches of law, including procedural
areas should be the approach and execution of such laws should bear in mind
satisfaction of the claims of due process. In the ultimate analysis, involuntary
administration is found to be a violation of both Articles 20(3) and 21.
The next questions were whether the investigative use of the techniques could
raise self-incrimination, admissibility of the results amount to testimonial
compulsion, whether the protection is available only for the accused and also
for the witnesses.
Satish Sharma and Nandini Satpathy have already laid to rest most of these
issues. It was held that the protection of Art 20(3) extend to investigative stage
and to all who are accused as well as those who apprehend that their answers
could expose them to criminal charges in the case under investigation or in any
other case.
Answering the question what constitutes incrimination, the court categorizes
three uses of statements in custody;
i. Derivative use- information revealed leading to discovery of
independent materials
ii. Transactional use- when the information proves to be useful for cases
other than the one investigated, and
iii. Identification and corroborative use- when statements/evidences are
used for the purposes of identification and corroboration, for eg. Hand
writing, body specimen etc.
The High Courts Stand before the Judgment

During the past decade, High Courts across the country continued to uphold the
use of such tests. The Supreme Courts analysis aptly demonstrates how those
decisions strained legal reasoning and logic by relying on the purported
scientific nature of narcoanalysis tests despite the fact that scientific evidence
had long discredited the tests purported scientific validity.

The Supreme Courts decision disagreed with the reasoning of the various High
Court judgments in three main areas:

a) The reliability/unreliability of the tests;
b) Self-incrimination protections;
c) Substantive due process rights.

The Supreme Courts decision is in line with Constitutional requirements and
international human rights law. However, the Court also ruled that information
subsequently discovered from the result of a voluntary test can be admitted
as evidence.

While the High Courts addressing this issue gave scant attention to potential
rights violations under Article 21 of the Constitution, the Supreme Court found
that narcoanalysis violated individuals right to privacy and amounted to cruel,
inhuman or degrading treatment. Article 21 protects the right to life and
personal liberty, which has been broadly interpreted to include various
substantive due process protections, including the right to privacy and the right
to be free from torture and cruel, inhuman, or degrading treatment. The majority
of High Courts did not even address the issue of the right to privacy, and those
that did only made blanket assertions that the right is not absolute or that
narcoanalysis and other tests did not infringe on the right.

Similarly, the High Courts did not address the issue of whether narcoanalysis
amounted to torture or cruel, inhuman or degrading treatment, despite the fact
that at least some of the petitioners raised this issue.

Again, the Supreme Court departed sharply from the stance of the lower courts.
First, the Court found all three tests to amount 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. Second, the Court declared all three tests to amount to
cruel, inhuman or degrading treatment because of the mental harm likely
suffered and the potential physical abuse by police or prison officials that could
result from the responses given. As the Court stated, forcible intrusion into a
persons mental processes is an affront to human dignity and liberty, often
with grave and long-lasting consequences.

The Supreme Courts Analysis

The Supreme Court overruled various High Courts in declaring that the
administration of Narcoanalysis, brain mapping, and polygraph tests violated
subjects rights against self-incrimination in contravention of Article 20(3) of
the Indian Constitution. According to that article, No person accused of an
offence shall be compelled to be a witness against himself. The High Courts
had used various arguments to uphold the constitutionality of narcoanalysis and
other tests under Article 20(3). For example, the Karnataka High Court equated
the compulsion requirement of Article 20(3) with duress involving serious
physical harm or threat, and found that the mild pain from the administration of
an injection necessary to induce the narcoanalysis test did not reach the requisite
level of hurt to constitute compulsion. Using a similarly narrow view of
compulsion, the Madras High Court found that because compulsion generally
means using physical or other so-called third degree methods of interrogation,
even though a subject may be forced to undergo narcoanalysis in the first place,
the statements made during the resulting tests themselves are voluntary. 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.

According to these judgments, only if an incriminating statement was in fact
made and then admitted as evidence could a potential violation occur. The Delhi
High Court went further to state that statements made during narcoanalysis
could be admitted as evidence in court as corroborative evidence.

The Supreme Court rejected these arguments. First, the Court found that forcing
a subject to undergo narcoanalysis, brain-mapping, or polygraph tests itself
amounted to the requisite compulsion, regardless of the lack of physical harm
done to administer the test or the nature of the answers given during the tests.
Secondly, the Court found that since the answers given during the
administration of the test are not consciously and voluntarily given, and since an
individual does not have the ability to decide whether or not to answer a given
question, the results from all three tests amount to the requisite compelled
testimony to violate Article 20(3).

Even if a person voluntarily agreed to undergo any of the tests at the outset, the
responses given during the tests are not voluntary. Overall, the Supreme Court
rightly rejected the High Courts reliance on the supposed utility, reliability and
validity of narcoanalysis and other tests as methods of criminal investigation.
This de-mystification of the techniques allowed the Court to carry out a
thorough analysis of the various constitutional rights at stake, namely rights
against self-incrimination and substantive due process rights, a study that the
High Courts were unable or unwilling to do.