SMT. SELVI & ORS. v. STATE OF KARNATAKA (2)

Citation: [2010] 5 S.C.R. 381

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, R.V. RAVEENDRAN, J.M. PANCHAL

Case summary

SMT. SELVI & ORS. v. STATE OF KARNATAKA (2).pdf

Judgment text

[2010] 5 S. C. R. 381 SMT. SELVI & ORS. v. STATE OF KARNATAKA (Criminal Appeal No. 1267 of 2004) MAY 5, 200. 7 [K. G. BALAKRISHNAN, CJI. , R. V. RAVEENDRAN AND J. M. PANCHAL, JJ. ] CODE OF CRIMINAL PROCEDURE, 1973: Section 161(2), Explanation to Sections 53, 53-A and 54 - Investigation - Examination of accused persons, suspects and witnesses - Use of certain scientific techniques viz.

narcoanalysis, polygraph examination and Brain Electrical Activation Profile (BEAP) test - Involuntary administration of 0 - Held: Violative of Article 20(3) of the Constitution of India - 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 Evidence Act - Guidelines formulated by National Human Rights Commission to be strictly adhered to - Similar safeguards should be adopted for conducting such tests - Constitution of India, 1950, Article 20(3)- Evidence Act, 1872, Section 27, Criminal Investigation - Video recordings of narcoadalysis interviews - Leakage to media by the investigation agency - A worrisome practice since public distribution of these recordings can expose the subject to undue social stigma and specific risks - May even encourage vigilantism in addition to media trial. .

CONSTITUTION OF IND/A, 1950: Article 20(3) - Right against self-incrimination - Polygraph examination and Brain Electrical Activation Profile (BEAP) test - Results obtained from these tests should be treated as 'personal testimony' since they are a means for 'imparting personal knowledge about relevant facts' - Herice, the results obtained through involuntary administration of either of the impugned tests viz. narcoanalysis technique, polygraph examination and BEAP test comes within the scope of testimonial compulsion thereby attracting the protective shield of Article 20(3). Article 21 - Personal liberty - Involuntary administration of narcoanalysis technique, polygraph examination and BEAP Test - Whether a reasonable restriction or personal liberty - Held: No person should be forcibly subjected to any of the abovesaid techniques whether in the conte. xt of investigation in criminal cases or otherwise - Doing so would amount to unwarranted intrusion into personal liberty.

The legal questions in the batch of criminal appeals relate 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. The involuntary administration of the impugned techniques evoked questions about the protective scope of the 'right against self-incrimination' which finds place in Article 20(3) of the Constitution. Arguments were advanced invoking the guarantee of 'substantive due process' which is part and parcel of the idea of 'personal liberty' protected by Article 21 of the Constitution. The main question raised in this regard was whether the provisions in the Code of Criminal Procedure, 1973 that provide for 'medical examination' during the course of investigation can be read expansively to include the impugned techniques, even though the latter are not explicitly enumerated.

Questions have also been raised with respect to the professional. ethics of medical personnel involved in the administration H . of these techniques.. Furthermore, Article 21 has been judicially expanded to include a 'right against cruel, inhuman or degrading treatment', requiring this Court to determine whether the involuntary administration of the impugned techniques violates this right whose scope corresponds with evolving international human rights norms. Contentions were raised invoking the test subject's 'right to privacy', both in a physical and mental sense. On the basis of the issues involved and contentions raised, the Court framed the following questions: I. Whether the involuntary administration of the impugned techniques violates the 'right against selfincriminatiofl' enumerated in Article 20(3) of the Constitution? o · 1-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject? 1-B.

Whether the results derived from the impugned tech_niques amount to 'testimonial compulsion' thereby attracting the bar of Article 20(3)? II, 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? Disposing of the appeals, the Court HELD~ 1. 1. Compulsory administration of the impugned ·techniques violates the 'right against selfincrimination'. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as tN\dt! nCt!. This Court has recognised that the protect\'le scope ofArticle 20(3) of the Constitution of lnd. ia extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure,· 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation.

The test results cannot be admitted· in evidence if they have been obtained through the use of compulsion. 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 e~ch of the impugned tests bear a 'testimonial' character and they cannot be categorised as material evidence. [Para 221) [591-C-G] 1. 2. Forcing an individual to undergo any of the impugned techniques violates the standard of 'substantive due process' which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a nonpenal nature.

The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in crimioal cases, i. e. the Explanation to Sections 53, 53-A and -S4 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of 'ejusdem generis' and the considerations which govern the interpretation of statutes in relation to scientific advancements. Compulsory administration· of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also . amount to 'cruel, inhuman or degrading treatment' with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the 'right to fair trial'. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the 'right against self-incrimination'.

[Para 222) [591-G-H; · 592-A-D] 1. 3. 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 could be 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 fuformation 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. [Para 223) [592-E-G] 1. 4.

The National Human Rights Commission, India has formulated guidelines which 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: (i) No Lie Detector Tests should 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. (ii) 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 test should be explained to him by the police and his lawyer. (iii) The consent should be recorded before a Judicial Magistrate. (iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer. (v) At the hearing, the person in question should also be told in clear terms that the sta~e.

ment that is made shall not be a 'confessional' statement to the Magistrate but wil! have the status of a statement made to the police. 0 (vi) The Magistrate shall consider all factors relating to the detention including the··length of detention and the nature of the interrogation. (vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. (viii) A full medical and factual narration of the manner of the information received must be taken on record. [Para 223] [592-G-H; 593-A-H; 594-A] National Human Rights Commission, India: Guidelines for administration of Polygraph Test (Lie Detector Test) on Accused, published in 2000, referred to. Polygraph Examination: 2. 1. Polygraph tests have several limitations and therefore a margin for errors.

The premise behind these tests is questionable b9icause 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 test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained. The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offer highly desparate physiological responses which could mislead the examiner. In some cases the subject may have suffered from loss of memory in the intervening time-period between the relevant act and the 0 conduct of the test.

When the subject does not remember the facts in question, there will be no self-awareness of truth or deception and hence the recording of the physiological responses will not be helpful. Errors may also result from 'memory-hardening', i. e. a process by which the subject has created and consolidated false memories about a particular incident. This commonly occurs in respect of recollections of traumatic events and the subject may not be aware of the fact that he/she is lying. [Para 16] [442-C-H] 2. 2. The errors associated with polygraph tests are broadly grouped into two categories, i. e. , 'false positives' and _'false negatives'. A 'false positive' occurs when the results iffaicate that a person has been deceitful even though he/she answered truthfully. Conversely a 'false negative' occurs when a set of deceptive responses is reported as truthful. On account of such inherent complexities, the qu~ifications and competence of the polygraph examiner are of the utmost importance.

The examiner needs to be thorough in preparing the questionnaire and must also have the expertise to account for extraneous conditions that could lead to erroneous inferences. However, the biggest concern about polygraph tests is that an examiner may not be able to recognise deliberate attempts on part of the s subject to manipulate the test results. Such 'countermeasures' are techniques which are deliberately used by the subject to create certain physiological responses in order to deceive the examiner. The intention is that by deliberately enhancing one's reaction to the control questions, the examiner will incorrectly score the test in favour of truthfulness rather than deception. The most commonly used 'countermeasures' are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by . lying cannot be readily distinguished. [Paras 17, 18] [443- 0 A-E] Frye v. United States, (1923) 54 App DC 46; Daubert v.

Merrell Dow Pharmaceuticals Inc. , 509 US 579 (1993); United States v. Piccinonna, 885 F. 2d 1529 (11th Circ. 1989); United States v. Posada, 57 F. 3d 428 (5th Circ. 1995); United States v. Galbreth, 908 F. Supp 877 (D. N. M. 1995); United States v. Cordoba, 104 F. 3d 225 (9th. Circ. 1997); United States v. Scheffer, 523 US 303 (1998) and R v Beland, [1987] 36 C. C. C. (3d) 481, referred to. Laboratory Procedure Manual - Polygraph Examination (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi, 2005), referred to. David Galfai: 'Polygraph evidence in federal courts: '3 Should it be admissible? ' 36 American Criminal Law Review 87-116 (Winter 1999) p. 91; Henry T. Greely and Judy /lies: 'Neuroscience based lie-detection: The urgent need for regulation', 33 American Journal of Law and Medicine, 377-421 (2007); 'The Polygraph and Lie-Detection: 1-1 Committee to Review the scientific evidence on the Polygraph (Washington D. C.

: National Academies Press, 2003); A Review of the cu"ent scientific status and fields of application of polygraph deception detection - Final Report (6 October, 2004) from The British Psychological Society (BPS) Working Party, referred to. Narcoanalysis technique: 3. 1. This test involves the intravenous administration of a drug that causes the subject to enter into a hypnotic trance and become less inhibited. The drug-induced hypnotic stage is useful for investigators since it makes the subject more likely to divulge information. The drug used for this test is sodium pentothal, higher quantities of which are routinely used for inducing general anaesthesia in surgical procedures. This drug is also used in the field of psychiatry since the revelations can enable the diagnosis of mental disorders. However, one has to decide on the permissibility of resorting to this technique during a criminal investigation, despite its' established uses in the medical field.

The use of 'truthserums' and hypnosis is not a recent development. Earlier versions of the narcoanalysis technique utilised substances such as scopolamine and sodium amytal. [Para 41] [459-G-H; 460-A-B] 3. 2. The use of the 'Scopolamine' technique led to the coining of the expression 'truth serum'. With the passage of time, injections of sodium amytal came to be used for inducing subjects to talk freely, primarily in the field of psychiatry. [Para 42] [461-G-H] 3. 3. In India, this technique has been administered either inside forensic science laboratories or in the operation theatres of recognised hospitals. While a psychiatrist and general physician perform the preliminary function of gauging whether the subject is· mentally and physically fit to undergo the test, the anaesthesiologist sup~vises the intravenous administration of the drug. It is the forensic psychologist who actually conducts the questioning.

Since the tests are meant to aid investigation efforts, the forensic psychologist needs to closely co-operate with the investigators in order to frame appropriate questions. [Para 45] [464-B-D] 3. 4. Narcoanalysis tests could be requested by defendants who want to prove their innocence. Demands for this test could also be made for purposes such as gauging the credibility of testimony, to refresh the memory of witnesses or to ascertain the mental capacity of persons to stand trial. Such uses can have a direct impact on the efficiency of investigations as well as the fairness of criminal trials. [Para 46] [464-H; 465·A-B] 3. 5. It takes great skill on part of the interrogators to extract and identify information which could eventually prove to be useful. While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning.

This is especially worrying, since investigators who are under pressure to deliver results could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the 'hypnotic stage'. Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the 'narcoanalysis' technique. [Para 47] [465-D-F] State v. Hudson, 314 Mo. S99 (1926); State v. Lindemuth, 56 N. M. 237 (1952); People v. Jones, 42 Cal. 2d 219 (1954); Lindsey v. United States, 237 F. 2d 893 (9th Circ. 1956); Lawrence M. Dugan v. Commonwealth of Kentucky, 333 S. W~2d. 755 (1960); Townsend•· Sain, 372 US 293 (1963); United States v. Swanson, 572 F. 2d 523 (5th Circ. 1978); United States v. Solomon, 753 F. 2d 1522 (9th Circ. 1985); State of New Jersey v. Daryl/ Pitts, 56 A. 2d 1320 (N. J. 1989); Horvath v. R, [1979] 44 C. C. C. (2d) 385; Ibrahim v. ~, [1914] A. C. 599 (P. C. ) 609; Rock v.

Arkansas, 483 US 44 (1987) and United States v. Solomon, 753 F. 2d 1522 (9th Circ. 1985), referred to. Laboratory Procedure Manual - Forensic Narco-Analysis (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi - 2005), referred to. . C. W Muehlberger: 'Interrogation under Drug-influence: The so-called Truth serum technique', 42(4) The Journal of Criminal Law, Criminology and Police Science 513-528 (Nov- Dec. 1951); John M. Macdonald: 'Truth Serum', 46(2) The Journal of Criminal Law, Criminology and Police Science 259-263 (Jul. -Aug. 1955); George H. Dession, Lawrence Z. Freedman, Richard C. Donnelly and Frederick G. Redlich, 'Drug-Induced revelation and criminal investigation', 62 Yale Law Journal 315-347 (February 1953); J. P. Gagnieur: 'The Judicial use of Psychonarcosis in France', 40(3) Journal of Criminal Law and Criminology 370-380 (Sept. -Oct. 1949); Andre A.

Moenssens: 'Narcoanalysis in Law Enforcement', 52(4) The Journal of Criminal Law, Criminology and Police Science 453-458 (Nov. -Dec. 1961) and Charles E. Sheedy: 'Narcointerrogation of a Criminal Suspect', 50(2) The Journal of Criminal Law, Criminology and Police Science 118-123 (July-Aug 1959) pp. 118-119, referred to. Brain Electrical Activation Profile (BEAPl Test: 4. 1. 'Brain Electrical Activation Profile test', also known as the 'P300 Waves test' is a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring 'event-related potentials' (ERP) i. e. electrical wave forms emitted by the brain after it has absorbed an external event.

An ERP measurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activitie~ that occur when a person is exposed to a stimulus in the form of an image or a concept expressed in words. The measurement of the cognitive brain activity allows the examiner to ascertain whether the subject recognised stimuli to which he/she was exposed. [Para 67) [478-G-H; 479•A-C] 4. 2. The P300 waves test is conducted by attaching electrodes to the scalp of the subject, which measure the emission of the said wave components. The test needs to be conducted in an insulated and air-conditioned room in order to prevent distortions arising out of weather conditions. Much like the narcoanalysis technique and polygraph examination, this test also requires effective collaboration between the investigators and the examiner,· most importantly for designing the stimuli which are called 'probes'.

Ascertaining the subject's familiarity with. the 'probes' can help in detecting deception or to gather useful information. The test subject is exposed to auditory or visual stimuli (words, sounds, pictures, videos) that are relevant to the facts being investigated alongside other irrelevant words and pictures. Such stimuli can be broadly classified as material 'probes' and neutral 'probes'. The underlying theory is that in the case of guilty suspects, the exposure to the material probes will lead to the emission of P300 wave components which will be duly recorded by the instruments. By examining the records of these wave components the examiner can. make inferences about the individual's familiarity with the information related to the crime. [Para 69) [479-F-H; 480- A-C] 4. 3. The P300 wave test was the precursor to other neuroscientific techniques such as 'Brain Fingerprinting' developed by Dr. Lawrence Farwell.

The latter technique has been promoted in the context of criminal justice and has already been the subject of litigation. There is an important difference between the 'P300 waves test' that has been used by Forensic Science Laboratories in India and the 'Brain Fingerprinting' technique. [Para 70] (480- D-E] 4. 4. Functional Magnetic Resonance Imaging (FMRI) is another neuroscientific technique whose application in the forensic setting has been contentious. It involves the use of MRI scans for measuring blood flow between different parts of the brain which bears a correlation to the subject's truthfulness or deception. FMRl-based liedetection has also been advocated as an aid to interrogations in the context of counter-terrorism and intelligence operations, but it prompts the same legal questions that can be raised with respect to all of the techniques mentioned above.

Even though these are non-invasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as 'Brain Fingerprinting' and 'FMRl-based Lie-Detection' raise numerous concerns such as those of protecting mental privacy and the harms that may arise from inferences made about the subject's truthfulness or familiarity with the facts of a crime. [Para 71] (481-A-D] 4. 5. Even though the P300 Wave component has been the subject of considerable research, its uses in the criminal justice system have not received much scholarly attention. Dr. Lawrence Farwell's 'Brain Fingerprinting' technique has attracted considerable publicity but has ' not been the subject of any. rigorous independent study. Besides this preliminary doubt, an important objection is centred on the inherent difficulty of designing the appropriate 'probes' for the test.

Even if the 'probes' are prepared by an examiner who is thoroughly familiar with all aspects of the facts being investigated, there is always a chance that a subject may have had prior exposure to the material probes. In case of such prior exposure, even if the subject is found to be familiar with the probes, the same will be. meaningless in the overall context of the investigation. In the aftermath of crimes th~t receive considerable 'rnedia-attention the subject cari be exposed to the test stimuli in many ways. Such exposure could occur by way of reading about the crime in newspapers or magazines, watching television, listening to the radio or by word of mouth. A possibility of prior exposure to the stimuli may also arise if the investigators unintentionally reveal crucial facts about the crime to the subject before conducting the test. The subject could also be familiar with the content of the material probes for several other reasons. [Para 73] [482-C-G] 0 4. 6.

Another significant limitation is that even if the tests demonstrate familiarity with the material probes, there is no conclusive guidance about the actual nature of the subject's involvement in the crime being · E investigated. For instance a by-stander who witnessed a murder or robbery could potentially be implicated as an accused if the test reveals that the said person was familiar with the information related to the same. Furthermore, in cases of amnesia or 'memory-hardening' on part of the subject, the te. sts could be blatantly misleading. Even if the inferences drawn from the 'P300 wave test' are used for corroborating other evidence, they could have a material bearing on a finding of guilt or innocence despite being based on an uncertain premise. [Para 74] [482-H; 483-A-C] Harrington v. /9wa, 659 N. W2d 509 (2003) and Slaughter v. Oklahoma, 105 P. 3d. 832 (2005), referred to.

Laboratory Procedure Manual - Brain Electrical Activation Profile (Directorate of Forensic Science, Ministry SELV~ &_ORS. v. STATE OF KARNATAKA 395 of Home Affairs, GovernJTlent of India, . fJew Delhi, 2005), referred to. Andre A Moenssens: 'Brain Fingerprinting - Can it be used to detect the innocence of persons charged with a crime? ' 70 University of Missouri at Kansas City Law Review 8 891-920 (Summer 2002) p. 893; Lawrence A. Farwell: 'Brain Fingerprinting: A new paradigm in criminal investigations and counter-terrorism', (2001); Michael S. Pardo: 'Neuroscience evidence, legal culture and criminal procedure', 33 American Journal of Criminal Law 301-337 (Summer 2006); Sarah E. Stoller and Paul Root Wolpe: 'Emerging neurotechnologies for lie detection and the fifth amendment', 33 American Journal of Law and Medicine 359-375 (2007); Henry T. Greely: 'Chapter 17: The social effects ofadv~nces in neuroscience: Legal problems, legal perspectives', m Juay flies (ed.

}, Neuroethics - Defining the issues in tneory, practice and policy (Oxford University Press, 2005) pp. 245- 263 and John G. New: 'If you could read my mind -- Implications of neurological evidence for twenty-first century criminal jurisprudence', 29 Journal of Legal Medicine' 179-197 (April-June 2008) - referred to. Whether the involuntary administration of the impugned techniques violates the 'right against self-incrimination' enumerated in Article 20(3) of the Constitution? 5. 1. The interrelationship between the 'right against self-incrimination' and the 'right to fair trial' has been recognised in most jurisdictions as well as international human rights instruments. For example, the U. S. Constitution incorporates the 'privilege against selfincrimination' in the text of its Fifth Amendment.

The meaning and scope of this privilege has been judicially moulded by recognising it's interrelationship with other constitutional rights such as the protection against 'unreasonable search and 'seizure' (Fourth amendment) and -the guarantee of 'due process of law' (Fourteenth amendment). In the International Covenant on Civil and Political Rights (ICCPR), Article 14(3)(g) enumerates the minimum guarantees that are· to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. In the European Convention for the Protection of Human Rights and Fundamental. Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that 'Everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law'.

The guarantee of 'presumption of innocence' bears a direct link to the 'right against self-incrimination' since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt. [Para 81] [487- 0 F-H; 488-A-C] 5. 2. In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights, since this approach was recognised in Maneka Gandhi's. Hence, one must examine the 'right against self-incrimination' in respect of its relationship with the multiple dimensions of 'personal liberty' under Article 21, which include guarantees such as the 'right to fair trial' and 'substantive due process'.

It must also be emphasized that Articles 20 and 21 have a non-derogable status within Part Ill of our Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a proclamation of emergency. [Para 82] [488-D-F] 5. 3. 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 l? erson charged together with him at the trial. It is evident that Section 161(2), CrPC enables a person to choose silence in 0 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. [Para 84] [489-G-H; 490-A-D] Maneka Gandhi vs. Union of India (1978) 1 SCC 248, relied on. Historical origins of the 'right against self-incrimination': 6. 1.

The right of refusal to answer questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the 'right to fair trial'. There are competing versions about the historical origins of this concept. Some scholars have identified the origins of this right in the medieval period. In that account, it was a response to the procedure followed by English judicial bodies such as the Star Chamber and High Commissions which required defendants and suspects to take ex officio oaths. These bodies mainly decided cases involving religious non-conformism in a Protestant dominated society, as well as offences like treason and sedition. Under an ex officio oath the defendant was required to answer all questions posed by the judges and prosecutors during the trial and the failure to do so would attract punishments that often involved physical torture.

It was the resistance to this practice of compelling the accused to speak which led to demands for a 'right to silence'. [Para 85] [490-D-H] 6. 2. The practice of requiring the accused persons to narrate or contest the facts on their own corresponds to a prominent feature of an inquisitorial system, i. e. the testimony of the accused is viewed as the 'best evidence' that can be gathered. The premise behind this is that innocent persons should not be reluctant to testify on their own behalf. This approach was followed in the inquisitional procedure of the ecclesiastical courts and had thus been followed in other courts as well. The obvious problem with compelling the accused to testify on his own behalf is that an ordinary person lacks the legal training to effectively respond to suggestive and misleading questioning, which could come from the prosecutor or the judge.

Furthermore, even an innocent person is at an inherent disadvantage in an environment where there may be unintentional irregularities in the testimony. Most importantly the burden of proving ·innocence by refuting the charges was placed on the defendant himself. In the present day, the inquisitorial conception of the defendant being the best source of evidence has long been displaced with the evolution of adversarial procedure in the common law tradition. Criminal defendants have been given protections such as the presumption of innocence, right to counsel, the right to be informed of charges, the right of compulsory process and the standard of proving guilt beyond reasonable doubt among others. It can hence be stated that it was only with the subsequent emergence of ttie 'right to counsel' that the accused's 'right to silence' became meaningful.

With the consolidation of the role of defence lawyers in criminal trials, a clear segregation emerged between the testimonial function performed by 8 the accused and the defensive function performed by the lawyer. This segregation between the testimonial and defensive functions is now accepted as an essential feature of a fair trial so as to ensure a level-playing field between the prosecution and the defence. In addition to a defendant's 'right to silence' during the trial stage, the protections were extended to the stage of pre-trial inquiry as well. With the enactment of the Sir John Jervis Act of 1848, provisions were made to advise the accused that he might decline to answer questions put to him in the pre-trial inquiry and to caution him that his answers to pre-trial interrogation might be used as evidence against him during the trial stage. [Para 89] [493-A-H; 494-A] Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424, referred to. Brown v. Walker, 161 US 591 (1896) and Miranda v.

Arizona, 384 US 436 (1966), referred to. Leonard Levy: 'The right against self-incrimination: history and judicial histOry', 84(1) Political Science Quarterly 1-29 (March 1969) and John H. Langbein: 'The historical origins of the privilege against self-incrimination at common law', 92(5) Michigan Law Review 1047-1085 (March 1994) referred to. Underlying rationale of the right against selfincrimination: 7. 1. 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 8 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 i:he 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. [Para 91] [495- 8-F] 7. 2. 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 incline_d t-0 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 a. gainst the defendant and the 'right against self- ·"fhcrimination' is a vital protection to ensure that the p'rosecUtion discharges the said onus.

[Para 92] [495-F- H; 496-A-C] 7. 3. One must recognise the infusion of constitutional values into all branches of law, including procedural areas such as the law of evidence. While certain criticisms have been made in academic commentaries, one must turn to the judicial precedents that control the scope of Article 20(3). [Para 98] [500-D] State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10, relied on. Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424, referred to. Murphy v. Waterfront Commission, 378 US 52 (1964); Wong Kam-ming v. R, [1979] 1 All ER 939 and Rochin v. California, 342 US 166 (1951 ), referred to. John Wigmore: 'The privilege against self-incrimination, its constitutional affectation, raison d'etre and miscellaneous implications', 51 Journal of Criminal Law, Criminology and Police Science 138 (1960); David Dolinko: 'Is There a Rationale for the Privilege Against Self-Incrimination?

', 33 University of California Los Angeles Law Review 1063 (1986); Akhil Reed Amar: The Constitution and Criminal Procedure: . First Principles (New Haven: Yale University Press, 1997) pp. 65-70; Mike Redmayne: 'Re-thinking the Privilege against Self-incrimination', 27 Oxford Journal of Legal-studies 209- 232 (Summer 2007), referred to. 1-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject? Applicability of Article 20(3) to the stage of investigation: 8. The majority decision in Miranda was not a sudden development in U. S. constitutional law. The scope of the privilege against self-incrimination had been progressively expanded in several prior decisions.

The notable feature was the recognition of the interrelationship between the Fifth Amendment and the Fourteenth Amendment's guarantee that the government must observe the 'due process of law' as well as the Fourth Amendment's protection against 'unreasonable search and seizure'. After Miranda, administering a warning about a persol)•$right to silence during custodial interrogations as well as obtaining a voluntary waiver of the prescribed rights has become a ubiquitous feature in the U. S. criminal justice system. In the absence of such a warning and voluntary waiver, there is a presumptjon of compulsion with regard to the custodial statements, thereby rendering them inadmissible as evidence. The position in India is different since there is no automatic presumption of compulsion in ·respect of custodial statements. However; if the fact of compulsion is proved then the resulting statements are rendered inadmissible as evidence. [Para 106) [507-C-H] M. P. Sharma v.

Satish Chandra, [1954) SCR 1077; State of Bombay v. Kathi Kalu Oghad &Others, [1962) 3 SCR 10 and Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424, referred to. Ernesto Miranda v. Arizona, 384 US 436 (1966), referred to. Who can invoke the protection of Article 20(3)? : 9. 1. While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section 161(2), CrPC is wider. Section 161 (2) read with 161 (1) protects 'any 8 person supposed to be acquainted with the facts and circumstances of the case' in the course of examination by the police. [Para 108] [508-C-D] 9. 2. The 'right against self-incrimination' protects persons who have been formally accused as well as those who. are examined·as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated.

[Para 109] [509-A-B] 9. 3. Even though Section 161 (2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expos~the witness to arrest or prosecution, except for a prosecution for giving false evidence. Therefore, the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused, suspects and witnesses during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower than the protection given to the accused during the trial stage [under Section 313(3) and Proviso (b) to Section 315(1 ), CrPC].

The legislative intent is to preserve the fact-finding function of a criminal trial. [Para 11 O] [509-H; 510-A-D] A· 9. 4. Since the extension of the 'right against self· incrimination' to suspects and witnesses has its basis in Section 161(2), CrPC it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of ~a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings. In administrCitive and quasi-criminal proceedings, the protection of Article 20(3) becomes available only after aperson has been formeilly accused of committing an offence. [Para 111] [510-G-H; 511-A-B] Nandini Satpathy v. P. L. Dani, (1978) 2 SCC 424; State of Bombay v.

Kathi Kalu Oghad, [1962] 3 SCR 10; M. P. Sharma v. Satish Chandra, (1954] SCR 1077; Raja Narayan/al Bansilal v. Maneck Phiroz Mistry, (1961] 1 SCR 417; Romesh Chandra Mehta v. State of West Bengal, (1969] 2 SCR 461 and Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600, referred to. What constitutes 'incrimination' for the purpose of Article 20(3)? F· 10. 1. It is a settled principle that statements made in custody are considered to be unreliable unless they have been subjected to cross-examination or judicial scrutiny. The scheme created by the Code of Criminal Procedure and the Indian Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statemen~s made in the presence of a judicial magistrate which can be given weightage. The doctrine of excluding the 'fruits of a poisonous tree' has been incorporated in -Sections 24, 25 and 26 of the Indian Evidence Act, 1872. [Para 118] [516-D-F] 10. 2.

Section 27 of the Evidence Act, 1872 permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic 8 presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was · indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). The relationship between Section 27 ·pf the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad. [Para 120] [518-A-C] 10. 3. The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage.

The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. If the admission of involuntary statement is permitted 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 in... ,estigation, 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 ttie information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course. [Para 123) [520-B-G] . 10. 4. However, it is conceivable that in some circumstances the testimony extracted throug. ti compulsion may not actually lead to ~posure to criminal charges or penalties. This is a possibility when the investigators make ·an offer of immunity against the di~ect use, derivative use,;or transactional use of the testimony. Immunity against direct use entails that a witness will not be prosecuted on the basis of the statements made to the. investigators. A protection against derivative use implies that a person will not be prosecuted on the basis of the ,fruits of such testimony.

Immunity against transactional use will shield a witness from criininal cf)arges in cases other than the one being investigated .. It is of course entirely up to the investigating agencies to decide E . whether to offer immunity and in what form. Even though this is distinctly possible, it is difficult to conceive of such a situation. in . the context of the present case. A person who is given an offer of immunity againsf prosecution is far more" likely to voluntarily cooperate with the. investigation efforts. This could be ih the form of giving testimony or helping in the discovery of mat~. rial evidence. If a person· is freely willing to cooperate with the investigation efforts, it would be redundant to com'pel such a person to undergo the impugned tests. If reliance on such tests is sought for refreshing a cooperating witness' memory, the person will in all probability give his/her consent to undergo these tests. [Para 124] [520- G-H; 521-A-D] 10. 5.

It could be argued· that the compulsory SELVI & ORS. it. STATE OF KARNATAKA 407 administration of the impugned tests can prove to be useful in instances where the cooperating witness has difficulty in remembering the relevant facts or is wilfully concealing crucial details. Such situations could very well arise when a person who is a co-accused is offered immunity from prosecution in return for cooperating with the investigators. Even though the right against selfi_ncrimination is not directly applicable in such situations, the relevant legal inquiry is whether the compulsory administration of the impugned tests meets the requisite standard of 'substantive due process' for placing restraints on personal lib. arty. [Para 125) [521-E-G] 10. 6. Indian law incorporates the 'rule against adverse inferences from silence' which is operative at the trial stage.

This position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161 (2), 313(3) and Proviso (b) of Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/ she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any Qf the . parties from commenting on the failure of the accused to give evidence. [Para 126) [521-H; 522-A-B] 10. 7. A person who refuses to undergo the impugned tests during the investigative stage could face non-penal consequences which lie outside the protective scope of Article 20(3). For example, a person who refuses to undergo these tests could face the risk of. custodial violence, increased police surveillance or harassment thereafter.

Even a person who is compelled to undergo these tests could face such adverse consequences on account of the contents of the. test results if they heighten the investigators' suspicions. Each of these consequences, though condemnable; tall short of the requisite standard of 'exposure to criminal charges and penalties' that has been enumerated in Section_ 161(2) of the CrPC. Even though Article 20(3) will not be applicable in such circumstances, reliance can be placed on Article 21 if such non-penal consequences amount to a violation of 'personal liberty' as contemplated under the Constitution. [Para 128] [521-G-H; 522-A-B] State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10 and Suni/ Batra v. Delhi Administration, (1978) 4 SCC 494, relied on. ' Samuel Hoffman v. United States, 341 US 479 (1951) and Woolmington v. OPP, (1935) AC 462, referred to. "180th Report of the Law Commission of India" (May 0 2002), referred to. 1-B.

Whether the results derived from the impugned techniques amount to 'testimonial compulsion' thereby attracting the bar of Article 20(3)? 11. 1. It is quite evident that the narcoanalysis technique . involves a testimonial act. A subject is &ncouraged to speak in a drug-induced state, and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation. The compulsory administration of the narcoanalysis technique was defended on the ground that at the time of conducting the test, it is not known whether the results will eventually prove to be inculpatory or exculpatory. This reasoning has already been rejected. There is no other obstruction to the proposition that the compulsory administration of the narcoanalysis technique amounts to 'testimonial compulsion' and thereby triggers the protection of Article 20(3). [Para 130] [524-G-H; 525-A-B] 11. 2.

Since the majority decision in Kathi Kalu Oghad is the controlling precedent, it will be useful to re-state the two main premises for understanding the scope of 'testimonial compulsion'. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to 'personal testimony' thereby coming within the prohibition contemplated by Article 20(3). In most cases, such 'personal testimony' can be readily distinguished from material evidence such as ,bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to 0 lead to incrimination by themselves or 'furnish a link in the chain of evidence' needed to do so.

It is emphasized that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation. [Para 136] [532-G-H; 533-A- C] 11. 3. The recognition of the distinction between testimonial acts and physical evidence for the purpose of invoking Article 20(3) of the Constitution finds a close parallel in some foreign decisions. [Para 137] [533-D-E] State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10, relied on. M. P. Sharma v. Satish Chandra, [1954] SCR 1077, referred to. Armando Schmerber v. California, 384 US 757 (1966); United States v. Hott, 218 US 245 . (1910) and Saunders v. United Kingdom, (1997) 23 EHRR 313, referred to. Michael S. Pardo: 'Self-Incrimination end the Epistemology of Testimony', 30 Cardozo Law Review 1023- 1046 (December 2008) pp.

1027-1028, referred to. Evolution of the law on 'medical examination': 12. 1. With respect to the testimonial-physical distinction, an important statutory development in our legal system was the introduction of provisions for medical examination with the overhauling of the Code of Criminal Procedure in 1973. Sections 53 and 54 of the ' . CrPC contemplate the medical examination of a person who has been arrested, either at the instance of the investig~ting officer or even the arrested person himself. The same can also be done at the direction of the jurisdictional court. However, there were no provisions for authorising such a medical examination in the erstwhile Code of Criminal Procedure, 1898. The absence of a statutory basis for the same had led courts to hold that a medical examination could not be conducted without the prior consent of the person who was to be subjected to the same. [Paras 140, 141] [536-C-F] 12. 2.

The Law Commission recommended the insertion of a provision in the Code of Criminal Procedure to enable medical examination without the consent of an accused. These reco·mmendations proved to be the precursor for the inclusion of Sections 53 and 54 in the. Code. of Criminal Procedure, 1973. [Para 142] [537-F-G] · 12. 3. The results of the impugned tests should be treated as testimonial acts for the purpose of invoking the right against self-incrimination. Therefore, it would be prudent to state that the phrase 'and such other tests' [which appears in the Explanation to Sections 53, 53-A and 54 of the CrPC] should be read so as to confine its meaning to include only those tests ,which involve the examination of physical evidence. It should also be noted that the Explanation to Sections 53, 53-A and 54 of the CrPC does not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination among others.

This demonstrates that the amendment to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts. [Para 149] [543-D-H] 12. 4. While it is most likely that the Parliament was well aware of the impugned techniques at the time of the 2005 amendment to the CrPC and delib~rately chose not to enumerate them, one cannot arrive at a conclusive finding on this issue. While it is open to courts to examine the legislative history of a statutory provision, it is not proper to try an~ conclusively ascertain the legislative intent. Such an inquiry is impractical since this Court does not have access to all the materials which would have been considered by the Parliament. In such a scenario, this Court must address the respondent's arguments about the interpretation of statutes with regard to scientific advancements. [Para 150] [544-A-C] 12. 5.

There are some clear obstructions to the dynamic interpretation of the amended Explanation to Sections 53, 53-A and 54 of the CrPC. Firstly, the general words in question, i. e. 'and such other tests' should ordinarily be read to include tests which are in the same genus as the other forms of medical examination that have been specified. Since all the explicit references are to the examination of bodily substances, one cannot readily construe the said phrase to include the impugned tests because the latter seem to involve testimonial responses. Secondly, the compulsory administration of the impugned techniques is not the only means for ensuring an expeditious investigation. Furthermore, there is also a safe presumption that Parliament was well aware of the existence of the impugned techniques but deliberately chose not to enumerate them. Hence, on an aggregate understanding of the materials produced before this Court leans towards the view that the impugned tests, i. e.

the narcoanalysis technique. , polygraph examination and the BEAP test should not be read into the provisions for 'medical examination' under the Code of Criminal Procedure, 1973. However, it must be borne in mind that even though the impugned techniques have not been expressly enumerated in the CrPC, there is no statutory prohibition against them either. It is a clear case of silence in the law. Furthermore, in circumstances where an individual consents to undergo these tests, there is no dilution of Article 20(3). [Paras 152, 153] [546-G-H; 547-A-E] 12. 6. Being a court of law, courts do not have the expertise to mould the specifics of professional ethics for the medical profession. Furthermore, the involvement of doctors in the course of investigation in criminal cases has long been recognised as an exception to the physician-patient privilege. In the Indian context, the statutory provisions for directing a medical examination are an example of the same.

Fields such as forensic toxicology have become important in criminaHustic. g systems all over the world and doctors are frequently called on to examine bodily substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses of medical expertise is the fact that testimonial acts such as the results of a psychiatric examination cannot be used as evidence without the subject's informed consent. [Para 156] [549-C-F] Bhondar v. Emperor, AIR 1931 Cal 601; Deomam Shamji Patel v. State of Maharashtra, AIR 1959 Born 284; State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10; Sharda v. Dharampal, (2003) 4 SCC 493; Thogorani v. State of Orissa, 2004 Cri L J 4003 (Ori); Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159; Mahipal Maderna v. State of Maharashtra, 1971 Cri L J 1405 (Born) and Jamshed v.

State of Uttar Pradesh, 1976 Cri L J 1680 (All), referred to. 37th and 41st Reports of the Law Commission of India; Justice G. P. Singh: Principles of Statutory Interpretation, 10th edn. (New Delhi: Wadhwa & Co. Nagpur, 2006) pp. 239-247; Amar Jesani: 'Willing participants and tolerant profession: Medical ethics and human rights in narco-analysis', Indian Journal of Medical Ethics, \lo/. 16(3), July-Sept. 2008 and 'Principles of Medical Ethics' adopted by the United Nations General Assembly [GA Res. 371194, 111th Plenary Meeting) on December 18, 1982, referred to. Results of impugned tests should be treated as 'personal testimony' 13. 1. Ordinarily evidence is classified into three broad categories, namely oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161 (2), CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the.

applicability of Article 20(3) is decided by the trial judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators. [Para 157] [549-G-H; 550-A-B] 13. 2. Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement,' the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive . knowledge from the subject's mind which otherwise would not have become available to the investigators.

These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair sa_mples, since the test subject's physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject's familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge of the test subject's thoughts and memories, either in the actual or 0 constructive sense. Therefore, even if a highly-strained analogy were to be made between the results obtained fron:i the impugned tests and the production . of documents, the weight of precedents leans towards restrictions on the extraction of 'personal knowledge' through such means. [Para 160] [551-G-H; 552-A-D] 13. 3.

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. [Para 161] [552-D-G] 13. 4. 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 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). [Para 165] [554-E-G] _ State of Bombay v. Kathi Ka/u Oghad, [1962] 3 SCR 1O and M. P. Sharma v. Satish Chandra, [1954] SCR 1077, referred to. Human Rights Commission, India: Guidelines Relating to Administration of Polygraph Test [Lie Detector Test] on an Accused (2000), referred to. Michael S. Pardo: 'Self-Incrimination and the Epistemology of Testimony', 30 Cardozo Law Review 1023- 1046 (December 2008) p. 1046 and Ronald J. Allen and M. Kristin Mace: 'The Self-Incrimination Clause explained and its future predicted', 94 Journal of Criminal Law and Criminology 243-293 (2004), Fn. 16 p. 247, referred to. II.

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? 14. 1. 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 unwiiling 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. The circumstances where a person who undergoes the said tests is subsequently exposed to harmful consequences, though not of a penal nature must also be accounted for. This Court has already expressed its concern with situations where the 0 contents of the test results could prompt investigators to engage in custodial abuse, surveillance or undue harassment. This Court has also been apprised of some in~tances where the investigation agencies have leaked the video-recordings of narcoanalysis interviews to media organisations. This is an especially worrisome practice since the public distribution of . these recordings can expose the subject to undue social stigma and specific risks. It may even encourage acts of vigilantism in addition to a 'trial ·-0y media'. [Paras 169, 170] [556-C-H; 557-A-B] 14. 2.

One must remember that the law does provide for some restrictions on 'personal liberty' in the routine exercise of police powers. For instance; the CrPC incorporates an elaborate scheme prescribing the powers of arrest, detention, interrogation, search and seizure. A fundamental prem. ise of the criminal justice system is that the police and the judiciary are empowered to exercise a reasonable degree of coercive powers. Hence, the provision that enables Courts to order a person who is under arrest to undergo a medlcal examination also provides for the use of 'force as is reasonably necessary' for this purpose. It is evident that the notion of 'personal liberty' does not grant rights in the absolute sense and the validity of restrictions placed on the same needs to be evaluated on the basis of criterion such as 'fairness, non-arbitrariness, and reasonableness'. [Para 171] [557-B-E] 14. 3.

The line of precedents shows that the compelled extraction of blood samples in the course of a medical examination does not amount to 'conduct that shocks the conscience'. There is also an endorsement of the view that the use of 'force as may be reasonably necessary' is mandated by law and hence it meets the threshold of 'procedure established by law'. In this light, this Court must restate two crucial considerations that are relevant for the instant case. Firstly, the restrictions placed on 'personal liberty' in the course of administering the impugned techniques are not limited to physical confinement and the extraction of bodily s. ubstances. All the three techniques in question also involve testimonial responses. Secondly, most of the cases cited before this Court were decided in accordance with the threshold of 'procedure established by law' for restraining 'personal liberty'.

· However, in this case one must use a broader standard of reasonableness to evaluate the validity of the techniques in question. This wider inquiry calls for deciding whether they are compatible with the various judicially-recognised dimensions of 'personal liberty' such as the right to privacy, the right against cruel, inhuman or degrading treatment and the right to fair trial. (Para 176) [561-D-H; 562-A] State of Maharashtra v. Sheshappa Dudhappa Tambade, AIR 1964 Born 253; Jamshed v. State of Uttar Pradesh, 1976 Cri L J 1680 (All); Ananth Kumar. Naik v. State of Andhra Pradesh, 1977 Cri L J 1797 (A. P. ) and Anil Anantrao Lokhande v. State of Maharashtra, 1981 Cri L J 125 (Born), referred to. Rochin v. California, 342 US 165 (1952) and Paul H. Breithaupt v. Morris Abram, 352 US 432 (1957), referred to. Applicability of the 'right to privacy': 15. 1. A distinction must be made between the character of restraints plac~d on the right to privacy.

While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonab~ force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the 'right to privacy' the distinction between privacy in a physical sense and the privacy of one's mental processes, has to be highlighted. [Para 191) [571-8-D] 15. 2. 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 I. aw 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 IT6erty' . under Article 21. Hence, our understanding of the 'right to privacy' should account for its interse-ctio. n with Article 20(3). Furthermore, the 'rule against. Jrut. oluntary 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 to a clear answer.. One 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. [Para 192) [571- D-H; 572-A] 15. 3. Subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interferel'! ce 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'. However, this determination does not account for circumstances where a person could be subjected to any of the impugned tests but not exposed to criminal charges and the possibility of conviction. In such cases, he/she could still face adverse consequences such as custodial abuse,· surveillance, undue harassment and social stigma among others. [Para 193) [572-8-D] Sharda v. Dharampal, (2003) 4 SCC 493, distinguished. M. P. Sharma v. Satish Chandra,.

[1954) SCR 1077; Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295; Maneka Gandhi v. Union of India, AIR 1978 SC 597; Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148; R. Raj Gopa/ v. State of Tamil Nadu, (1994) 6 SCC 632; People's Union for Civil Liberties v: Union of India, AIR 1997 SC 568; X v. Hospital Z, (1998) 8 SCC 296; Xv. Hospital Z, (2003) 1 SCC 500 and M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd. , AIR 2001 AP 502, referred to. R (on the application of S) v. Chief Constable of South Yorkshire, (2003) 1 All ER 148 (CA) and Attorney General's Reference (No. 3 of 1999), (2001) 1 All ER 577, referred to. Safeguarding the 'right against cruel. inhuman or degrading treatment' 16. 1. It is quite conceivable that the administration of any of these techniques could involve the infliction of 'mental pain or suffering' and the contents of their results could expose the subject to physical -abuse.

When a person undergoes a narcoanalysis test, he/she is in a halfconscious state. and subsequently does not remember the revelations made in a drug-induced state. In the case of polygraph examination and the BEAP test, the test subject remains fully conscious during the tests but does o not immediately know the nature and implications of the results derived from the same. However, when he/she later learns about the contents of the revelations, they may prove to be incriminatory or be in the nature of testimony that can be ~sed to prosecute other individuals. This Court has also highlighted the likelihood of a person making incriminatory statements when he/ she is subsequently confronted with the test results. The realisation of such consequences can indeed cause 'mental pain or suffering' for the person who was subjected to these tests. The test results could also support the theories or suspicions of the investigators in a particular case.

These results could very well confirm suspicions about a person's involvement in a criminal act. For a person in custody, such confirmations could lead to specifically targeted behaviour such as physical abuse. [Para 201] [578-G-H; 579-A-D] 16. 2. One must also contemplate situations where a threat given by the investigators to conduct any of the impugned tests could prompt a person to make incriminatory statements or to undergo some mental trauma. Especially in cases of individual~ from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice, the mere apprehension of undergoing scientific tests that supposedly reveal the truth could push them to make confessional statements. Hence, the act of threatening to administer the impugned tests could also elicit testimony. It is also quite conceivable that an individual may give his/ her consent to undergo the said tests on account of threats, false promises or deception by the investigators.

For example, a person may be convinced to give his/her consent after being promised that this would lead to an early release from custody or dropping of charges. However, after the administration of the tests the investigators may renege on such promises. In such a case the relevant inquiry is not confined to the apparent 0 voluntariness of the act of undergoing the tests, but also includes an examination of the totality of circumstances. [Para 202] [579-E-H; 580-A-B] 16. 3. This Court can also contemplate a possibility . that even when an individual freely consents to undergo the tests in question, the resulting testimony cannot be readily characterised as voluntary in nature. This is attributable to the differences between the manner in which the impugned tests are conducted and an ordinary interrogation. In an ordinary interrogation, the investigator asks questions one by one and the subject has the choice of remaining silent or answering each of these questions.

This choice is repeatedly exercised after each question is asked and the subject decides the nature and content of each testimonial response. On account of the continuous exercise of such a choice, the subject's verbal responses can be described as voluntary in nature. However, in the context of the impugned techniques the test subject does not exercise such a choice in a continuous manner. After the initial consent is given, the subject has no conscious control over the subsequent responses given during the test. In case of the narcoanalysis technique, th. e subject speaks in a drug-induced state and is clearly not aware of his/her own responses at the time. In the context of polygraph examination and the BEAP tests, the subject cannot anticipate the contents of the 'relevant questions' that will be asked or the 'probes' that will be shown.

Furthermore, the results are derived from the measurement of physiological responses and hence the subject cannot exercise an effective choice between remaining silent and imparting personal knowledge. [Para 204] [581-8-G] 16. 4. It is undeniable that during a narcoanalysis interview, the test subject does lose 'awareness of place and passing of time'. It is also quite evident that all the three impugned techniques ca. n be described as methods of interrogation which impair the test subject's 'capacity of decision or judgment'. Going by the language of these principles, it is held that the compulsory administration of the impugned techniques constitutes 'cruel, inhuman or degrading treatment' in the context of Article 21. It must be remembered that the law disapproves of involuntary testimony, irrespective of the nature and degree of coercion, threats, fraud or inducement used to elicit the same.

The popular perceptions of terms such as 'torture' and 'cruel, inhuman or degrading treatment' are associated with gory images of blood-letting and broken bones. However, one must recognise that a forcible intrusion into a person's mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences. [Para 205] [582-D-G] 16. 5. It would also be wrong to sustain a comparison between the forensic uses of these techniques and the practice of medicine. It has been suggested that patients undergo a certain degree of 'physical or mental pain and suffering' on account of medical interventions such as surgeries and drug-treatments. However, such interventions are acceptable since the objective is to ultimately cure or prevent a disease or disorder. So it is argued that if the infliction of some 'pain and suffering' s is permitted in the medical field, it should also be tolerated for the purpose of expediting investigations in criminal cases.

This is the point where our constitutional values step in. A society governed by rules and liberal values makes a rational distinction between the various circumstances where individuals face pain and suffering. While the infliction of a certain degree of pain and suffering is mandated by law in the form of punishments for various offences, the same cannot be extended to all those who are questioned during the course of an 0 investigation. Allowing the same would vest unlimited discretion and lead to the disproportionate exercise of police powers. [Para 206] [583-A-D] Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 and D. K. Basu v. State of West Bengal, AIR 1997 SC 610, referred to. National Human Rights Commission, India: 'Guidelines relating to administration of Polygraph test (Lie Detector test) on an accused (2000), referred to. Universal Declaration of Human Rights (GA Res.

217 A (Ill) of December 10 1948], Article 5; Article 7 of the International Covenant on Civil and Political Rights (ICCPR) [GA Res. 2200A (XXI), entered into force March 23, 1976; Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; Body of Principles for the Protection of all persons under any form of Detention or Imprisonment [GA Res. 43/173, 76th plenary meeting, 9 December 1988] adopted by the United Nations General Assembly; Linda M. Keller: 'Is Truth Serum Torture? ' 20 American University International Law Review 521-612 (2005) and Marcy Strauss: 'Criminal Defence in the Age of Terrorism - Torture', 48 New York Law School Law Review 201-274 (200312004), referred to. 8 Incompatibility with the 'Right to fair trial': 17. 1.

The respondents' position is that the compulsory administration of the impugned techniques should be permitted at least for investigative purposes, and if the test resul'ts lead to the discovery of fresh evidence, then these fruits should be admissible. In light of the conjunctive reading of Article 20(3) of the Constitution and Section 27 of the Evidence Act, if the fact of compulsion is proved, the test results will not be o admissible as evidence. [Para 207] [583-E-F] 17. 2. Access to legal advice is an essential safeguard so that an individual ry-and-Encoding-Related-Multifaceted- Electroencephalographic Response) effect. [See generally: Lawrence A. Farwell, 'Brain Fingerprinting: A new paradigm in criminal investigations and counter-terrorism', (2001) Text 71. Functional Magnetic Resonance Imaging (FMRI) is another neuroscientific technique whose application in the forensic setting has been contentious.

It involves the use of MRI 8 scans for measuring blood flow between different parts of the brain which bears a correlation to the subject's truthfulness or deception. FMRl-based lie-detection has also been advocated as an aid to interrogations in the context of counter-terrorism and intelligence operations, but it prompts the same legal questions that can be raised with respect to all of the techniques mentioned above. Even though these are non-invasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as 'Brain Fingerprinting' and 'FMRl-based Lie-Detection' raise numerous