The landmark judgement of Selvi v State of Karnataka AIR 2010 SC 1974 delivered by Hon’ble Supreme Court bench led by the then CJI K.G.Balakrishnan comprising Justice R.V.Raveendran and Justice J.M.Panchal became a canonical law in medical examination of the accused.
This judgment proved to be a milestone in the criminal justice system of India as it pushed the contours of fundamental rights by zealously safeguarding the Right to Privacy(Art 21), Right against Self-Incrimination(Art 20 (3) ), and due process of law. The judgment still holds water given the fact that legislators have not yet legislated any explicit and specific law on medical examination of accused through the techniques such as narcoanalysis, polygraph examination, Brain Electrical Activation Profile (BEAP) and Functional Magnetic Resonance Imaging(FMRI) for purpose of criminal investigation. There is also no legislation so far that enumerates the offences that warrant their use.
The expression ‘personal liberty’ under Article 21 is of the widest amplitude and it covers variety of rights. Some of these rights have been elevated to the status of Fundamental Rights. Every individual has an indefeasible claim to protect, enjoy and defend his basic personal liberties by virtue of being born as human being. Thus involuntary administration of the above mentioned medical techniques/tests on the accused , witnesses or suspects so as to detect a lie or gauge the subject’s familiarity with information related to the crime basically infringes upon his right to privacy under Art 21.
The powers conferred upon the investigating and law enforcement agencies are not unguided, but confined by constitution as a grund norm and other legislations in force. It would be therefore non-sequitur to solely rest the investigation of the case on the test results of these medical examination techniques that create a likelihood of incrimination of the test subject. It will be detrimental to the fundamental right against self-incrimination of the accused guaranteed under Article 20(3). Furthermore, it will also jeopardize the interest of the society at large giving a dent to the principle of ‘Innocent until proven Guilty.’
It’s equally important from the perspective of justice to ensure that the process by which result is achieved or accused is prosecuted is also just, fair and reasonable, as observed by the apex court in Maneka Gandhi v Union of India AIR 1978 SC 597.The term ‘procedure established by law’ in Article 21 of the Indian Constitution safeguards the right to personal liberty against executive ‘excesses’ and ‘undue interference’ which is not supported by law, and law here means ‘enacted law’ or ‘state law’. As there is currently no state law regarding administration of these medical tests to accused, the rampant applicability of these tests on the accused transcends the fundamental right of ‘procedure established by law’ guaranteed to the accused under Article 21 of the Constitution.
The impugned techniques of investigation such as Narcoanalysis, Polygraph Examination, Brain Electrical Activation Profile(BEAP), Functional Magnetic Resonance Imaging(FMRI) have been time and again questioned regarding its scientific validity and relevance as the subject is often likely to divulge a lot of irrelevant and incoherent information during these tests.
Furthermore, the revelations through these tests will make a sense only when compared with the testimony of several other individuals or through discovery of relevant materials. The reliability and admissibility of evidences collected through these scientific/medical tests have been repeatedly questioned in empirical studies as some drug induced revelations need not always be true. For instance, the Narco analysis technique involves the intravenous administration of Sodium Pentothal, a drug which lowers the inhibitions on part of the subject and induces the person to talk freely.
Thus the facts revealed or disclosed by accused through these techniques can’t be imputed to him as it will mar the principles of ‘right to fair trial’ such as the requisite standard of proving guilt beyond reasonable doubt, the right of the accused to present a defence, reliability of voluntary statements, et cetera. These requirements are sine qua non components of ‘personal liberty’ guaranteed under Right to Life of Article 21 of the Constitution.
Moreover, the right to remain silent or to speak during the investigation is a sole volition and discretion of the accused under the law which can’t be overridden by investigation agency. Treating the statements made during such medical techniques/tests as inculpatory evidence is unjustified. The same should be even excluded from the trial congruent to the exclusionary rule in the evidence law. Under Section 161(2) of The Code of Criminal Procedure,1973, a person is bound to answer truly all questions relating to such case put to him by officer, other than questions, the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Such medical tests also erode this provision of CrPC. It’s a trite law that justice should not only be done, but it should be seen to have been done.
The issue whether Polygraph test to accused is an intrusion and infringement of Right to Privacy(Art 21), Right against Self-Incrimination(Art 20 (3) ), and due process of law was thus dealt at considerable length by Supreme Court in this case.
The three judge bench held that the involuntary administration of either of the impugned tests could be viewed as a restraint on ‘personal liberty’. The most obvious indicator of restraint is the use of ‘physical force’ to ensure that an unwilling person is confined to the premises where the tests are to be conducted. Furthermore, drug induced revelations drawn from subject’s physiological responses can be described as an intrusion into the subject’s ‘mental privacy’. It’s also likely that a person could make an incriminating statement on being threatened with the prospective administration of any of these techniques.
Moreover, where a person undergoes the said tests is subsequently exposed to harmful consequences , though not of penal nature. The bench has also expressed its concern with the situations where the contents of the test results could prompt the investigators to engage in custodial abuse , surveillance or undue harassment.
The bench observed that – The theory of interrelationship of rights mandates that right against self-incrimination should also be read as a component of ‘personal liberty’ under Article 21. Hence, understanding of the ‘right to privacy’ should account for its intersection with Article 20(3).
Furthermore, the ‘rule against involuntary confessions’ as embodied in sections 24,25,26 and 27 of Indian Evidence Act,1872 seeks to serve both the objectives of ‘reliability’ as well as ‘voluntariness of testimony’ given in a custodial setting. The court reiterated the need to recognize the importance of ‘personal autonomy’ in aspects such as the choice between remaining silent and speaking.
The practical concerns that strengthens the case against the involuntary administration of the tests can’t be overlooked. Moreover, the claim that results obtained through these techniques will help in extraordinary situations is questionable. All these impugned tests need to be patiently administered and the forensic psychologist or the examiner has to be very skillful and thorough while interpreting the results. In Narco analysis, the subject is as likely to divulge false information as he/she is likely to reveal useful facts.
The court held that if it were to permit the forcible administration of these medical techniques, it could be the first step on very slippery –slope as far as standards of police behavior are concerned. In some of the impugned judgments it has been suggested that the promotion of these techniques could reduce the regrettably high incidence of ‘third degree methods’ that are being used by policemen all over the country. This is circular line of reasoning since one form of improper behaviour is sought to be replaced by another. There is a likelihood that investigators will increasingly seek reliance on impugned techniques rather than engaging in a thorough investigation.
The claim that use of these techniques will only be sought in cases involving heinous offences is also hallow since there will be no principled basis for restricting their use once investigators are given the discretion to do so.
The bench finally ruled that it doesn’t have the authority to permit the use of these techniques by way of enumerating the offences which warrant their use. By itself, permitting such qualified use would amount to law making function in the garb of adjudication, which is outside the judicial domain.
The Selvi case has thus put to rest a great consternation among the accused, witness, or suspects that they will be involuntarily forced to undergo polygraph test. The landmark Judgement in this case has emphatically pushed the contours of Fundamental Rights and reiterated that- ‘We don’t owe our rights to the constitution, the constitution is a result of our rights’.
The author is a criminal lawyer at Delhi