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Smt. Selvi and Ors. Vs. State of Karnataka
AIR2010SC1974; (2010)7SCC263; 2010(4)SCALE690
Hon’ble Judges/Coram: K.G. Balakrishnan, C.J., R.V. Raveendran and J.M. Panchal, JJ.
Date of Decision: 05.05.2010
FACTS:-
In this batch of appeals objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future as well as in circumstances where it is difficult to gather evidence through ordinary means. In some of the impugned judgments, reliance has been placed on certain provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to fully co-operate with investigation agencies. It has also been urged that administering these techniques does not cause any bodily harm and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is that these scientific techniques are a softer alternative to the regrettable and allegedly widespread use of `third degree methods’ by investigators.
ISSUE:-
- Whether the involuntary administration of the scientific techniques, namely narco analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the investigation purpose violates the ‘right against self-incrimination’ enumerated in Article 20(3) of the Constitution?
- Whether the involuntary administration of the impugned techniques is a reasonable restriction on `personal liberty’ as understood in the context of Article 21 of the Constitution?
JUDGMENT:-
Supreme Court in order to decide the first issue looks at the interrelationship between the ‘right against self- incrimination’ which finds place in Article 20(3) of the Indian Constitution and the ‘right to fair trial’ which has been recognised in most jurisdictions as well as international human rights instruments. In court’s view, undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. For instance reliance has been placed on Section 39, Cr.P.C. which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Court also draws its attention to the language of Section 156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, there is Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. In light of these provisions, Court opines that while the overall intent of these provisions is to ensure the citizens’ cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons. It further says that the scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2), CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.
Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person’s silence during the trial stage.
As mentioned earlier, `the right against self-incrimination’ is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. 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. Therefore, the purpose of the `rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.
The concerns about the `voluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements – often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, `the right against self-incrimination’ is a vital safeguard against torture and other `third-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such `short-cuts’ will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the `right against self- incrimination’ is a vital protection to ensure that the prosecution discharges the said onus.
During the administration of a polygraph test or a BEAP test, the subject makes a mental effort which is accompanied by certain physiological responses. The measurement of these responses then becomes the basis of the transmission of knowledge to the investigators. This knowledge may aid an ongoing investigation or lead to the discovery of fresh evidence which could then be used to prosecute the test subject. In any case, the compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.
In light of the preceding discussion, Court is 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, the 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). Further, Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a `testimonial’ character and they cannot be categorised as material evidence.
With regards to the second issue, 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 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, 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. It is also quite conceivable that a person could make an incriminating statement on being threatened with the prospective administration of any of these techniques. Conversely, a person who has been forcibly subjected to these techniques could be confronted with the results in a subsequent interrogation, thereby eliciting incriminating statements.
So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the 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 the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.
Therefore, it is Court’s opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the `right against self-incrimination’. In light of these conclusions it is held, 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, there is 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. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.
HELD:-
The National Human Rights Commission had published `Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis technique’ and the `Brain Electrical Activation Profile’ test. The text of these guidelines has been reproduced below:
- No Lie Detector Testsshould be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
- If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a testshould be explained to him by the police and his lawyer.
- The consent should be recorded before a Judicial Magistrate.
- During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
- At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.
- The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
- The actual recording of the Lie Detector Testshall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
- A full medical and factual narration of the manner of the information received must be taken on record.To Get Legal Opinion from Advocates/ Legal Experts, Please click here
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