Chidige Sai Varshitha
Damodaram Sanjivayya National Law University

This paper is an overview of the landmark case of Selvi v. State of Karnataka and discusses critical issues relating to the constitutionality & validity of polygraph test administration, brain mapping & Narco-analysis, etc. It is mainly about the reasoning offered by the courts for the investigative authorities to conduct these tests. It also highlights the contradictory role of technology and humanity. Above said tests are involuntarily conducted to the accused, raising a lot of questions about the violation of human rights & fundamental rights. There are also some significant legal issues which give clarity on what one must do and what are the measures one should follow when using the tests in the subject matter. The case is pertinent to significant legal issues, such as privacy or personal liberty, self-incrimination & substantive due process, and seeks to uphold fundamental morality and humanity above all. It also seeks to prohibit inhumane, degrading & forceful handling of the accused by the investigating authorities.
Keywords: Self-Incrimination, Nacroanalysis, Polygraph and Brain Finger Printing tests
Selvi v. State of Karnataka

Facts of the case:
These criminals’ appeals refer to the involuntary administration of such scientific procedures for the purpose of strengthening investigative efforts in criminal cases, which includes Narcoanalysis, polygraph evaluation and the Brain Electrical Activation Profile Test. As it entails contradictions between the desirability of successful investigation and the protection of individual liberty, this problem has drawn great attention. To come at a conclusion, the judicial duty is usually to evaluate the rival claims. The current situation, however, is not a traditional private-party conflict. It poses relevant concerns about the meaning and extent of fundamental rights that all people have at their disposal. The court therefore explored the consequences of allowing the impugned tests to be used in a number of settings. Objections are raised where persons who are accused, suspects, or witnesses in an investigation have been exposed to these techniques without their consent.

• Whether the involuntary administration of polygraph examination, Narcoanalysis & the Brain Electrical Activation Profile is against the ‘right against self-incrimination’ stipulated under Article 20(3) of the Constitution
• Whether the involuntary administration of the said techniques constitutes a legitimate restriction on ‘personal freedom’ as considered under Article 21 of the Constitution.

Arguments of the case:
Appellant’s Arguments

In a significant judgment in Selvi v. State of Karnataka , the validity of some scientific techniques were challenged by accused, they are, Narcoanalysis, Polygraph and Brain Finger Printing tests with no consent of them as violative of Article 20 (3) of the Constitution, they argued that “these scientific techniques are softer alternatives to the regrettable use of third degree, methods by investigators and violates right against self incrimination in Article 20 (3) of the Indian Constitution.”
Respondent’s Arguments:

  1. In the future, and in situations where it is impossible to obtain evidence through conventional methods, it may help the investigating authorities to avoid illegal activities.
  2. Some provisions of the Code of Criminal Procedure& the Indian Evidence Act have been relied upon, referring to the responsibility placed on people to comply with investigating authorities.
  3. No physical injury is incurred by using such methods and the collected information can only be used to coordinate investigation efforts.
  4. During trial proceedings, this would not be accepted as evidence.
  5. It would assist in improving the actuality during the investigation, thus raising the rate of conviction and acquittal.
  6. These scientific approaches are a gentler alternative to investigators’ use of “third degree methods.”
  7. That the details collected by these methods are considered to be similar to testimonial compulsion since the subject of the examination is not needed to provide verbal answers and thus falls outside the scope of Article 20 (3).
    Statutory Provisions of the case
    Article 20(3) of the Constitution- “No person accused of any offence shall be compelled to be a witness against himself.”
    Article 21 of the Constitution- “Protection of life and personal liberty”
    Judgement of the case
    These techniques are testimonial compulsions, according to a three-judge Supreme Court bench, and they stated that these tests are forbidden by Article 20 (3) of the Constitution. These techniques do not come within the meaning of the term ‘such other tests’ in Section 53 of the Code of Criminal Procedure. At the investigation level, self-incrimination defence is available and it is also accessible to witnesses. A medication is administered to him in the Narcoanalysis test so that he can reveal significant details. The drug is referred to as Sodium Pentothal, which in surgical procedures is used or introduced as general anesthesia. The Polygraph & Brain Finger Printing test is also called as Wave Test. The electric waves are incorporated into the brain. In this case, it was ruled that the mandatory application of Narcoanalysis procedures was judged to be brutal, inhumane, or degrading treatment. Article 21 disagrees with involuntary testimony, regardless of the nature& degree of coercion, the danger of deception or the inducement used to obtain evidence. The widespread means of words like “torture” and “cruel” to describe inhumane or abusive treatment conjures up visions of bloodletting and broken bones. A forcible intrusion to the mental process of an individual is an insult to the dignity and liberty of human, often with extreme, long & lasting consequences. While not ratified by Parliament, the Court even pointed to the International Conventions as a persuasive value, because they constitute an enveloping international consensus on the issue- “Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984)”. In response to the respondents’ claim that compelling interests need certain strategies for potential criminal investigation, the Court stated that it was the duty of the legislature to consider and pass effective legislation on the subject. However, if the matter is brought before the Court of Justice, the Court shall interpret the mandate of the constitutional provisions at the disposal of the people and shall enforce them in its favour.
    In 2000, “Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused” was issued by the National Human Rights Commission. These guidelines should be strictly followed, according to the court, and similar precautions should be taken when performing the “Narcoanalysis test” and the “Brain Electrical Activation Profile” test.
    My Observations on the case
    The criticism levelled at the decisions is that it throws doubt on the Court’s ability to make innovative decisions. Despite the fact that this decision was one of the most important and precedent-setting of its time, when it comes to democratic and constitutional issues, criticism is inevitable. Furthermore, when it comes to judicial decisions, there is still room for criticism. However, when compared to other major decisions, this is one of the few where opponents may struggle to find a flaw. This ruling is an excellent example of a fair and unbiased conclusion.
  8. Lie Detector Tests should not be used except on the premise of consent of the accused. The accused must be given the choice of whether or not to take such a check.
  9. When the accused accepts for a Lie Detector Test, he must be granted access to a lawyer and the police and his lawyer can clarify to him the physical, emotional& legal consequences of such a test.
  10. A Judicial Magistrate must note the consent.
  11. The person claimed to have accepted must be properly represented by a lawyer during the trial before the Magistrate.
  12. The individual in question must also be informed in plain terms at the proceedings that the declaration that if produced is not a secret declaration to the Magistrate but would have the declaration made to the police.
  13. All considerations relating to detention, including the duration of detention and the form of the questioning, shall be considered by the magistrate.
  14. The actual recording of the Lie Detector is performed by an independent entity (such as a hospital) and the involvement of a lawyer is registered.
  15. It is important to note a complete medical and accurate narration of the manner of the information received.
    Interpretation by courts on different related cases:
    In Nandini Satpathy v. P.L. Dani , the court ruled that instead of invoking Article 20(3), the pleading party must be charged with a crime and must have been forced to answer the incriminating questions posed to them, and that referring women as a witness in the police station undermines section 160(1) and affects her testimony, and that section 161(2) of CrPC and Article 20(3) of the Indian Constitution protect the witness from being forced to answer.
    In M.P. Sharma and Ors. v. Satish Chandra and Ors. , the proposal established by the Supreme Court in Sharma’s case included oral and documentary evidence which he may be forced to create. The majority in this case has narrowed the proposal regarding documentary proof to statements written expressing the accused’s personal knowledge relating to the transition against him. Other records in his possession, such as declarations from other people in his custody or documents with the accused’s handwriting or with his footprints, will not be protected because they do not include personal information related to the charge against him or could incriminate others.
    According to these rulings, a possible violation would arise only if an incriminating comment was made and then accepted as proof. The High Court of Delhi went on to say that claims made throughout nacroanalysis could be used as evidence of corroboration in court.
    The Supreme Court’s decision in the case of The State Of Bombay v. Kathi Kalu Oghad And Others is in effect and has been upheld in future cases. The majority in this case ruled that although being a “witness” may be similar to giving proof in the context of making statements verbally or in writing, it doesn’t involve giving a thumb print, palm impression, writing of foot, finger, specimen, or revealing a body’s part by person who is accused for identification. In view of English law, the framers of the Constitution may have sought to shield the accused from the dangers of self-incrimination.
    A judgment, irrespective of how good it is, will always be criticised as there is always room for development. The same can be said of the Selvi v. State of Karnataka decision. Despite the fact that it was one of the most influential and landmark decisions of its day, when it comes to constitutionality and democracy, criticism is inevitable. Furthermore, when it comes to judicial decisions, there is still the opportunity for opponents to join forces. However, in comparison to other assessments, this is one of the few where critics can struggle to find a flaw. The decision is a prime example of a fair and impartial decision.
    The theory that “fruits of the poisonous tree” casts a shadow on the Court’s otherwise progressive judgement led to this narrow exemption for accepting into proof. For good reason, the same idea has been considered in the case.

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