Judges: K.G. Balakrishnan, C.J., R.V. Raveendran and J.M. Panchal, JJ.

Facts:

In the year 2004, Smt. Selvi and others filed the first batch of criminal appeal followed by subsequent appeals in the year 2005, 2006, 2007 and 2010.

They were collectively taken up by the Constitutional bench of the Supreme Court in the form of Special Leave Petition under Article 136 of the Indian Constitution on 5th May, 2010.

The legal questions in this 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.

This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preservation of individual liberties. Ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens.

Objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent. 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.

The involuntary administration of the impugned techniques prompts questions about the protective scope of the `right against self-incrimination' which finds place in Article 20(3) of the Constitution.

Issues:

(i) Whether the involuntary administration of the impugned techniques violates the 'right against self-incrimination' enumerated in Article 20(3) of the Constitution?

(ii) Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?

(iii) Whether the results derived from the impugned techniques amount to `testimonial compulsion' thereby attracting the bar of Article 20(3)?

(iv) 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?

Law:

Constitution of India - Article 20(3) - Provides immunity to an accused against self-incrimination. It states that 'No person accused of an offence shall be compelled to be a witness against himself'.

Constitution of India - Article 21 - States about the Right to Protection of Life and personal liberty.

Contentions:

Petitioners

(i) The involuntary administration of neuro-scientific techniques violated the 'right against self-incrimination' under Article 20(3) of the Constitution for those compelled to use them.

(ii) The tests were not scientifically valid but were only confirmatory and the evidence gathered through them could not be relied upon.

(iii) The guarantee of 'substantive due process' as an extension of 'personal liberty' protected by Article 21 of the Constitution.

(iv) The ambit of Article 21 the Constitution includes a right against cruel, inhuman or degrading treatment, and the involuntary administration of the impugned techniques would violate such rights.

(v) The test subjects 'right to both physical and mental privacy and the techniques in question would violate the same.

Respondent

(i) The impugned techniques can help the investigation agencies to prevent criminal activities in the future and in circumstances wherein it becomes difficult to gather evidence through ordinary means.

(ii) No bodily harm is done by the application of the impugned techniques and the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage.

(iii) The information extracted through these techniques cannot be equated with testimonial compulsion because the test subject is not required to give verbal answers, thereby falling outside the scope of Article 20(3) the Constitution.

Analysis:

Right to remain silent of accused - `Right against self-incrimination' enumerated in Article 20(3) of the Constitution

(i) Article 20(3) of the Constitution has an exalted status in our Constitution. 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.

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'.

(ii) `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.

Investigative use of the impugned techniques creates a likelihood of incrimination for the subject

(i) Any giving of evidence, any furnishing of information, if likely to have an incriminating impact, answers the description of being a witness against oneself. Not being limited to the forensic stage by express words in Article 20(3) the Constitution, the expression has to be construed to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Article 20(3).

Results derived from the impugned techniques amount to `testimonial compulsion' thereby attracting the bar of Article 20(3)

(i) The narcoanalysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the `right against self-incrimination'. The narcoanalysis technique involves a testimonial act. A subject is encouraged 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.

(ii) The question is whether the results obtained through polygraph examination and the BEAP test are of a testimonial nature. In both these tests, inferences are drawn from the physiological responses of the subject and no direct reliance is placed on verbal responses. In some forms of polygraph examination, the subject may be required to offer verbal answers such as `Yes' or `No', but the results are based on the measurement of changes in several physiological characteristics rather than these verbal responses. In the BEAP test, the subject is not required to give any verbal responses at all and inferences are drawn from the measurement of electrical activity in the brain.

(iii) The phrase `to be a witness' is not confined to oral testimony for the purpose of invoking Article 20(3) and that it includes certain non-verbal forms of conduct such as the production of documents and the making of intelligible gestures.

(iv) 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, 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) the Constitution.

Provisions of Section 27 of the IEA,1872 are not within the prohibition under Article 20(3) of Constitution

(i) Section 27 of the IEA,1872 incorporates the `theory of confirmation by subsequent facts' - i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which `furnish a link in the chain of evidence' needed for a successful prosecution.

(ii) The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat that will be admissible in evidence and that will not be hit by the provisions of Clause (3) of Article 20 of the Constitution for the reason that there has been no compulsion.

(iii) It must, therefore, be held that the provisions of Section 27 of the IEA,1872 are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information.

Involuntary administration of the impugned techniques is a violation of Article 21 of the Constitution

(i) Administering the impugned tests entails the physical confinement of the subject, it is important to consider whether they can be read into an existing statutory provision. This is so because any form of restraint on personal liberty, howsoever slight it may be, must have a basis in law.

(ii) 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, the understanding of the `right to privacy' should account for its intersection with Article 20(3).

(iii) 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.

(iv) Therefore, it is considered 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'.

Conclusion:

(i) The compulsory administration of the impugned techniques violates the `right against self-incrimination'.

(ii) The protective scope of Article 20(3) 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.

(iii) The test results cannot be admitted in evidence if they have been obtained through the use of compulsion.

(iv) 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. Forcing an individual to undergo any of the impugned techniques violates the standard of `substantive due process' which is required for restraining personal liberty.

(v) 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.

Important Precedents:

(i) Nandini Satpathy v. P.L. Dani MANU/SC/0139/1978

(ii) Brown v. Walker

(iii) Frye v. United States

(iv) Daubert v. Merrell Dow Pharmaceuticals Inc.