Friday, 18 February 2022

Critical analysis of Selvi v. State of Karnataka


Critical analysis of Selvi v. State of Karnataka


This paper is an analysis of landmark case of Selvi v. State of Karnataka and deals with important questions pertaining to constitutionality and validity of administration of polygraph tests, brain mapping, and narco-analysis deals with the reasoning given by the courts for the administration of these tests by the investigating also depicts the conflicting position of technology and humanity. The accused are involuntarily administered to these tests which raises lot of question regarding the violation of human rights and fundamental rights. The important legal issues also make a clear stand so as to what all should be done and taken care of while using these techniques. The case gives importance to major legal issues including privacy or personal liberty, self-incrimination and substantive due process and aims to keep the constitutional morality and humanity above all. It also aims to prevent inhuman, degrading and forceful treatment by investigating authorities towards accused.


Article 20(3), involuntary administration, impugned techniques, selvi v. state ofKarnataka, accused, polygraph tests, Narco Analysis etc.


Right against self-implication which is reffered in article 20(3) of the Indian constitution, 1950 depends on a Latin saying 'Nemon tenetur seipsum accusare', which implies that no individual is obliged to accuse himself. In England back in the middles ages during the sixteenth century, this privilege was perceived in custom-based law through conflict against the inquisitorial and plainly unreasonable strategies for cross examination of accused individual by driving them to make a vow known as the ‘ex-officio oath’ also, the accused were made to respond to questions, without even a conventional charge imposed by the honourable court and the prosecutor and if the suspected person didn’t took oath, he was tortured. The Privy Council asked Coke and Chief Justice Popham when the pledge could appropriately be administered. They answered, "No man... will be analyzed upon mystery considerations of his Heart, or of his secret opinion.”  The oath ex-officio was abolished by Long Parliament and prevented Ecclesiastical Courts to use it.

British System of criminal jurisprudence perceives this privilege as one of the principal standards which the United States of America received from the British legitimate framework and the equivalent was fused in their Constitution as "no person shall be compelled in any case to be a witness against himself", and from there on in the Indian Constitution.

This right is also supported in various provisions of Indian law, such as presumption of innocence of accused unless he is proved guilty, guilt should be proved beyond all reasonable doubt, accused has the right to remain silence and he should confess voluntarily and burden of proof rests on the prosecution. In 1978, under the Constitution (Forty-fourth Amendment) Act, 19789, the Article 20 of the Constitution of India was provided with an inviolable status i.e. thestate cannot derogate this legal right, even in a state of emergency, or to refuse to abide by this right. This is a declaration to the significance it has been concurred in our Constitution.

The world is profoundly powerful and with the adjustment in time, the interest of populace likewise changes and henceforth development turns into an undeniable factor. Technological headways is one of the significant changes right now has its own points of interest and weaknesses. One such progression in the innovation that we are here worried about is the utilization of logical procedures, for example, Narcoanalysis (NARCO), polygraph assessment(PE) and the Brain Electrical Activation Profile (BEAP) testing official courtroom. The admissibility of science in a court of law requests that three significant prerequisites to be met: to be specific validity, reliability and legality Validity means the evidence collected with the help of scientific method and it should be accurate. Reliability should show consistency and accuracy in the Results produced. These impugned techniques help the authorities involved in the criminal justice system to get relevant information from the suspected person and for this purpose voluntary consent is required .problem arises when These accused are involuntarily administered to these tests which results in violation of human rights and fundamental rights . The landmark judgment of Smt. Selvi and Ors v. state of Karnataka raises the important legal issues with respect to the involuntary administration of the impugned techniques and also lays down certain guidelines to be followed while doing these techniques.

Background of the case:-

Smt. Selvi and Ors v. State of Karnataka documented the principal bunch of criminal appeals before the honorable Supreme Court followed by ensuing appeals in the year 2005, 2006 and 2007 and 2010 were taken together by means of special leave petition on fifth May 2010 bearing Criminal Appeal No 1267 of 2004. These criminal interests’ protests have been raised for people who are the accused, suspects or observers in an examination who have been exposed to these tests involuntary.

The case deals with lawful inquiries identified with the involuntary administration of certain logical strategies, to be specific narcoanalysis, polygraph assessment and the Brain Electrical Activation Profile (BEAP) test to improve examination endeavors in criminal cases. Such measures have been defended by citing the importance of gathering evidences and extracting information through ordinary means and thus preventing criminal activities in the future. It has also been defended that administering these techniques doesn’t lead to any real mischief and that the extracted data will not be admitted as evidence during the trial stage will only aid in strengthening investigation efforts. Yet another contention is that these scientific techniques are undoubtedly better alternative as compared to the regrettable and allegedly widespread use of ‘third degree methods’ by investigators. The case gives emphasis on major legal issues including privacy or personal liberty, self-incrimination and substantive due process.


In Selvi v. State of Karnataka The Judiciary of India gave a historic and landmark comprised of three-judge bench including the then chief justice of India, K.G. Balakrishnan, J. RV Raveendran and J. JM Panchal condemned the involuntary administration nature of narcoanalysis, brain-mapping, and polygraph tests and held them to be ― coldblooded, barbaric and corrupting as it is violative of right against self-incrimination. The Supreme Court of India raises serious questions to the validity, reliability and usefulness of deception detection tests such as narco analysis test, brain fingerprinting etc.

It questioned and emphasized how these tests could prompt the disclosure of bogus and in any event, deceiving data, in questioning the scientific reliability of the tests it stated, “Some studies have shown that most of the drug -induced revelations are not related to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects personal lives” The Court also noted that some subjects of narcoanalysis “can become extremely suggestible to questioning” while others may "create whimsical stories”. For polygraph tests, the Court noticed that misshaped physiological reactions could result from “nervousness, anxiety, fear, confusion or other emotions… the physical conditions in the polygraph examination room… the mental state of the subject…[or] ‘memory-hardening’, i. e. a process by which the subject has created and consolidated false memories about a particular incident.”

 Also, for various types of brain mapping, which depend regarding a matter's recognition with specific stimuli to survey subject contribution in wrongdoing, the tests can dishonestly involve a subject on account of the subject's earlier introduction to test stimuli, for example, through media reports, disclosure of realities to the subject by examiners, or the subject's connection to the wrongdoing as an onlooker witness.

Also, the court held that involuntary administration of these techniques leads to violation of basic human right and is an intrusion of mental privacy. The bench ruled that involuntary administration of the impugned techniques violates the standard of substantive due process as.

 Generally speaking, the Supreme Court properly dismissed the High Courts' dependence on the alleged utility, unwavering quality and legitimacy of narcoanalysis and different tests as techniques for criminal examination given under article 21(3).

The judgment starts with an undeniable portrayal of nacroanalysis, polygraph test and BEAP test including the scientific, legal, moral and ethical aspects. Justice Balakrishnan in his judgment has discussed many of the foreign precedents especially of U.K and U.S because they have persuasive value and also because there is lack of relevant cases on this subject in our statute.The High Courts had utilized different contentions to maintain the lawfulness tests under Article 20(3). The Karnataka High Court related the impulse prerequisite of Article20(3) with "coercion" including genuine physical mischief or danger, and found that the gentle agony from the administration of an injection important to actuate the narcoanalysis test didn't arrive at the imperative degree of hurt to establish impulse. The Courts of Bombay and Delhi featured that administration of narcoanalysis itself couldn't abuse Article 20(3) in light of the fact that announcements couldn't be known to be implicating until after the organization of the test. The Delhi High Court went further to express that announcements made during narcoanalysis could be conceded as proof in court as supportive proof.

Critical analysis of Selvi v. State of Karnataka



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