Supreme Court of India
SMT. SELVI & ORS.versusSTATE OF KARNATAKA
- Citation
- 2007 INSC 520
- Decided
- 5 May 2007
- Disposal
- Disposed off
Holding
The involuntary administration of narcoanalysis, polygraph, and BEAP tests violates the right against self-incrimination under Article 20(3) and personal liberty under Article 21 of the Constitution, but voluntary administration with safeguards is permissible and subsequently discovered evidence may be admissible under Section 27 of the Evidence Act, 1872.
Summary
The Supreme Court considered whether the involuntary administration of narcoanalysis, polygraph, and Brain Electrical Activation Profile (BEAP) tests for investigative purposes violates fundamental rights. The Court held that compulsory administration of these techniques violates Article 20(3) of the Constitution, which protects against self-incrimination, because the results are testimonial in nature and obtained through compulsion. It further held that such involuntary testing violates Article 21 as an unwarranted intrusion into mental privacy and constitutes cruel, inhuman, or degrading treatment. However, the Court permitted voluntary administration of these tests subject to strict safeguards, including consent recorded before a judicial magistrate and access to legal counsel. Any information or material subsequently discovered with the help of voluntarily administered test results may be admitted under Section 27 of the Evidence Act, 1872. The Court adopted the guidelines formulated by the National Human Rights Commission for polygraph tests and directed similar safeguards for narcoanalysis and BEAP tests. The appeals were disposed of with these directions.
Issues considered
- Whether the involuntary administration of narcoanalysis, polygraph examination, and BEAP tests violates the right against self-incrimination under Article 20(3) of the Constitution?
- Whether the investigative use of these techniques creates a likelihood of incrimination for the subject?
- Whether the results derived from these techniques amount to testimonial compulsion attracting the bar of Article 20(3)?
- Whether the involuntary administration of these techniques is a reasonable restriction on personal liberty under Article 21 of the Constitution?
- Whether the impugned techniques can be read into the medical examination provisions of the Code of Criminal Procedure, 1973?
- Whether the involuntary administration violates the right to privacy and constitutes cruel, inhuman, or degrading treatment?
- Whether the use of these techniques is compatible with the right to a fair trial?
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 162, s. 163, s. 164, s. 313, s. 315, s. 53, s. 53-A, s. 54
- Constitution of Indias. 20(3), s. 21, s. 359
- Identification of Prisoners Act, 1920s. 5, s. 6
- Indian Evidence Act, 1872s. 132, s. 24, s. 25, s. 26, s. 27, s. 73
Subjects
narcoanalysispolygraph examinationBrain Electrical Activation Profile (BEAP) testright against self-incriminationArticle 20(3)personal libertyArticle 21testimonial compulsionmedical examinationcriminal investigationhuman rightsprivacycruel inhuman degrading treatmentfair trialevidence law
Judgment
[2010] 5 S.C.R. 381
SMT. SELVI & ORS. A
v.
STATE OF KARNATAKA
(Criminal Appeal No. 1267 of 2004)
MAY 5, 200.7
B
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN AND
J.M. PANCHAL, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
c
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
E
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 F
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.
G
.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
381 H
382 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
B 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
C 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.
D 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
E 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
F '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'
G 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
SELVI & ORS. v. STATE OF KARNATAKA 383
judicially expanded to include a 'right against cruel, A
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. B
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: C
I. Whether the involuntary administration of the
impugned techniques violates the 'right against self-
incriminatiofl' 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 E
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 F
'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 G
impugned ·techniques violates the 'right against self-
incrimination'. 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 H
384 SUPREME COURT REPORTS [2010] 5 S.C.R.
A scope of Article 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
B 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
c 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)
D [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
E 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 non-
penal nature. The impugned techniques cannot be read
F 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
G 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
H 'cruel, inhuman or degrading treatment' with regard to the
SELVI & ORS. v. STATE OF KARNATAKA 385
language of evolving international human rights norms. A
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; · B
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 C
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 D
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 E
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 F
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 G
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 H
386 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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.
B
(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.
c
(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
0 status of a statement made to the police.
(vi) The Magistrate shall consider all factors
relating to the detention including the··length
of detention and the nature of the
interrogation.
E
(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.
F
(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]
G National Human Rights Commission, India: Guidelines
for administration of Polygraph Test (Lie Detector Test) on
Accused, published in 2000, referred to.
Polygraph Examination:
H 2.1. Polygraph tests have several limitations and
SELVI & ORS. v. STATE OF KARNATAKA 387
therefore a margin for errors. The premise behind these A
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 B
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 c
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 E
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]
F
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 G
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 H
388 SUPREME COURT REPORTS [2010) 5 S.C.R.
A 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
c 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);
E 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.
F
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
SELVI & ORS. v. STATE OF KARNATAKA 389
(Washington D. C.: National Academies Press, 2003); A 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.
B
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 C
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 D
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 'truth-
serums' and hypnosis is not a recent development. E
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 F
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 G
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 H
390 SUPREME COURT REPORTS [2010]° 5 S.C.R.
A 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
B 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
C 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]
D
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
E 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
F '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,
G 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);
H United States v. Solomon, 753 F. 2d 1522 (9th Circ. 1985);
SELVI & ORS. v. STATE OF KARNATAKA 391
State of New Jersey v. Daryl/ Pitts, 56 A.2d 1320 (N.J. 1989); A
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.
B
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: C
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, D
'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', E
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. F
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 G
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 H
392 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H has been promoted in the context of criminal justice and
SELVI & ORS. v. STATE OF KARNATAKA 393
has already been the subject of litigation. There is an A
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]
B
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 lie- C
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 D
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 E
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]
F
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 G '
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 H
394 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
B 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
C 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'
F 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), A
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 C
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, D
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. E
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 F
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 self-
incrimination' in the text of its Fifth Amendment. The G
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 H
396 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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.
B 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
c 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
E 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
F 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
G 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
H
SELVI & ORS. v. STATE OF KARNATAKA 397
inferences being drawn from the fact of his/her silence. A
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 B
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 c
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]
E
[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': F
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. G
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. H
398 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
B 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]
c 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
D 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
E 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
F 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
G 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
H process and the standard of proving guilt beyond
SELVI & ORS. v. STATE OF KARNATAKA 399
reasonable doubt among others. It can hence be stated A
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 C
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 D
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. E
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 F
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.
G
Underlying rationale of the right against self-
incrimination:
7.1. The right against self-incrimination is now viewed
as an essential safeguard in criminal procedure. Its
H
400 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
8 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
C 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
D 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]
E 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
F 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
G 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
H the investigators will be more incline_d t-0 extract
SELVI & ORS. v. STATE OF KARNATAKA 401
information through such compulsion as a matter of A
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- B
·"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 C
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]
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. E
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, F
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); G
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.
H
402 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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:
B 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
C 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
D 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
E 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
F 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,
G referred to.
Ernesto Miranda v. Arizona, 384 US 436 (1966), referred
to.
H
SELVI & ORS. v. STATE OF KARNATAKA 403
Who can invoke the protection of Article 20(3)?: A
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 C
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] D
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 E
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 F
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, G
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] H
404 SUPREME COURT REPORTS [2010] 5 S.C.R.
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
B 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
c 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]
D 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]
E 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
G 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
H
SELVI & ORS. v. STATE OF KARNATAKA 405
24, 25 and 26 of the Indian Evidence Act, 1872. [Para 118] A
[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 · C
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]
D
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 E
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 F
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 G
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 H
406 SUPREME COURT REPORTS [2010) 5 S.C.R.
A 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.
B [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
C 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
D 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.
F 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
G 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
H
SELVI & ORS. it. STATE OF KARNATAKA 407
administration of the impugned tests can prove to be A
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 B
the investigators. Even though the right against self-
i_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 c
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 D
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 E
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]
F
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 G
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
H
408 SUPREME COURT REPORTS [2010) 5 S.C.R.
A 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
B 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
C 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.
0 "180th Report of the Law Commission of India" (May
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)?
E
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
F 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
G 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]
H
SELVI & ORS. v. STATE OF KARNATAKA 409
11.2. Since the majority decision in Kathi Kalu Oghad A
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 B
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 c
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 E
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 F
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. G
M.P. Sharma v. Satish Chandra, [1954] SCR 1077,
referred to.
Armando Schmerber v. California, 384 US 757 (1966);
H
410 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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-
B 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
C 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.
D 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
E 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
F 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] ·
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
H and 54 of the CrPC] should be read so as to confine its
SELVI & ORS. v. STATE OF KARNATAKA 411
meaning to include only those tests ,which involve the A
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 B
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 C
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 D
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 E
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
F
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 G
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 H
412 SUPREME COURT REPORTS [2010) 5 S.C.R.
A 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
B 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
c 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).
D [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
E 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
F 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
G 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
H Shamji Patel v. State of Maharashtra, AIR 1959 Born 284;
SELVI & ORS. v. STATE OF KARNATAKA 413
State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10; A
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 B
(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: C
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. D
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 E
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 F
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 G
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 H
414 SUPREME COURT REPORTS [2010) 5 S.C.R.
A 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
B 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
c 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
E 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
F 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.
G 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
H
SELVI & ORS. v. STATE OF KARNATAKA 415
convey personal knowledge irrespective of his/her own A
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
B
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 C
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. D
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 E
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.
F
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?
G
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
H
416 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
B 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
c 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
E 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]
F
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
G 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
H person who is under arrest to undergo a medlcal
SELVI & ORS. v. STATE OF KARNATAKA 417
examination also provides for the use of 'force as is A
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 B
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 C
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 D
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 E
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 F
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] G
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), H
418 SUPREME COURT REPORTS [2010) 5 S.C.R.
A 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':
B
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
C 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
D 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 ·
E 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
F 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
G 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.
H
SELVI & ORS. v. STATE OF KARNATAKA 419
A conjunctive reading of Articles 20(3) and 21 of the A
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 B
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] C
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 D
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, E
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.
F
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 G
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.
H
420 SUPREME COURT REPORTS (2010] 5 S.C.R.
A 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
B 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
C person undergoes a narcoanalysis test, he/she is in a half-
conscious 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
E 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
F 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
G 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
H incriminatory statements or to undergo some mental
SELVI & ORS. v. STATE OF KARNATAKA 421
trauma. Especially in cases of individual~ from weaker A
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 B
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 c
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 E
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 F
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 G
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 H
422 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
B 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
c 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
D 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
E '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
F 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,
G 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
H
SELVI & ORS. v. STATE OF KARNATAKA 423
undergo a certain degree of 'physical or mental pain and A
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 c
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, E
referred to.
National Human Rights Commission, India: 'Guidelines
relating to administration of Polygraph test (Lie Detector test)
on an accused (2000), referred to.
F
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 G
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
H
424 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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,
C 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 <;an be adequately apprised of his
constitutional and statutory rights. This is also a measure
which checks custodial abuses. However, the
E involuntary administration of any of the impugned tests
can lead to a situation where such legal advice becomes
ineffective. For instance even if a person receives the
best of legal advice before undergoing any.of these tests,
it cannot prevent the extraction of information which may
F prove to be inculpatory by itself or lead to the subs~uent
discovery of incriminating materials. Since the subject
has no conscious control over the drug-induced
revelations or substantive inferences, the objective of
providing access to legal advice are frustrated. [Para 208]
G [584-A-C]
17.3. Since the subject is not immediately aware of
the contents of the drug-induced revelations or
substantive inferences, it is also conceivable that the
H investigators may chose not to communicate them to the
SELVI & ORS. v. STATE OF KARNATAKA 425
subject even after completing the tests. In fact statements A
may be recorded or charges framed without the
knowledge of the test subject. At the stage of trial, the
prosecution is obliged to supply copies of all
incriminating materials to the defendant but reliance on
the impugned tests could curtail the opportunity of B
presenting a meaningful and wholesome defence. If the
contents of the revelations or inferences ·are
communicated much later to the defendant, there may
not be sufficient time to prepare an adequate defence.
[Para 209] [584-D-F] c
17.4. In respect of the narcoanalysis technique, it was
observed that there is no guarantee that the drug-induced
revelations will be truthful. Furthermore, empirical studies
have shown that during the hypnotic stage, individuals
are prone to suggestibility and there is a good chance D
that false results could lead to a finding of guilt or
innocence. As far as polygraph examination is
concerned, though there are some studies showing
improvements in the accuracy of results with
advancement in technology, there is always scope for E
· error on account of several factors. Obje.ctions can be
raised about the qualifications of the examiner, the
physical conditions under which the test was conducted,
the manner in which questions were framed and the
possible use of 'countermeasures' by the test subject. A F
significant criticism of polygraphy is that sometimes the
physiological responses triggered by feelings such as
anxiety and fear could be misread as those triggered by
deception. Similarly, with the P300 Waves test there are
inherent limitations such as the subject having had 'prior : G
exposure' to the· 'probes' which are used as stimuli.
F.urthermore, this technique has not been the focus of
· rigorous independent st.udies. The questionable scientific
reliability of these techniques comes into conflict with the ·
standard of proof 'beyond reasonable doubt' which is an H
426 SUPREME COURT REPORTS [2010) 5 S.C.R.
A essential feature of criminal trials. [Para 210] [584-G-H;
585-A-D]
17.5. While the consideration of expert opinion
testimony has become a mainstay in our criminal justice
system with the advancement of fields such as forensic
8
toxicology, questions have been raised about the
credibility of experts who are involved in administering
the impugned techniques. It is a widely accepted
principle for evaluating the validity of any scientific
technique that it should have been subjected to rigorous
C independent studies and peer review. This is so because
the persons who are involved in the invention and
development of certain techniques are perceived to have
an interest in their promotion. Hence, it is quite likely that
such persons may give unduly favourable responses
D about the reliability of the techniques in question. [Para
211] [585~E-G]
17.6. Even though India does not have a jury system,
the use of the impugned techniques could impede the
E fact-finding role of a trial judge. This is a special concern
in our legal system, since the same judge presides over
the evidentiary phase of the trial as well as the guilt
phase. The consideration of the test results or their fruits
for the purpose of deciding on their admissibility could
F have a prejudicial effect on the judge's mind even if the
same are not eventually admitted as evidence.
Furthermore, reliance on scientific techniques could
cloud human judgment on account of an 'aura of
infallibility'. While judges are expected to be impartial and
objective in their evaluation of evidence, one can never
G discount the possibility of undue public pressure in some
cases, especially when the test results appear to be
inculpatory. [Para 212] [586-A-D]
17.7. If compulsory administration of any of the
H impugned techniques are permitted at the behest of
SELVI & ORS. v. STATE OF KARNATAKA 427
investigators, there would be no principled basis to deny A
the same opportunity to defendants as well as witnesses.
If the investigators could justify reliance on these
tecnniques, there would be an equally compelling reason
to allow the indiscrete administration of these tests at the.
request of convicts who want re-opening of their cases s
or even for the purpose of attacking and re,habilitating the
credibility of witnesses during a trial. An untrammelled
right of resorting to the techniques in question will lead
to an unnecessary rise in the volume of frivolous
litigation before our Courts. [Para 213) [586-E-H; 587-A] c
17.8. In light of the preceding discussion, this Court
is of the view that irrespective of the need to expedite
investigations in such cases, no person who is a victim
of an offence can be compelled to undergo any of the
tests in question. Such a forcible administration would be D
an unjustified intrusion into mental privacy and could
lead to further stigma for the victim. [Para 214) [587-B-C]
D.K. Basu v. State of West Bengal, AIR 1997 SC 610,
relied on. E
Armando Schmerber v. California, 384 US 757 (1966);
R v. Beland, [1987) 36 C.C.C. (3d) 481 and United States v.
Scheffer, 523 US 303 (1998), referred to.
Examining the 'compelling public interest': F
18.1. Ordinarily it is the task of the legislature to arrive
at a pragmatic baldnce between the often competing
interests of 'personal liberty' and public safety. As a
constitutional court, this Court can only seek to preserve
the balance between these competing interests as G
reflected in the text of the Constitution and its
subsequent interpretation. There is absolutely no
ambiguity on the status of principles such as the 'right
against self-incrimination' and the various dimensions of
'personal liberty'. It has already been pointed out that the H
428 SUPREME COURT REPORTS [2010] 5 S.C.R.
A rights guaranteed in Articles 20 and 21 of the
Constitution of India have been given a non-derogable
status and they are available to citizens as well as
foreigners. It is not within the competence of the judiciary
to create exceptions and limitations on the availability of
s these rights. [Para 216] [588-C-F]
18.2. Even though the main task of constitutional
adjudication is to safeguard the core organising
principles of our polity, this Court must also highlight
some practical concerns that strengthen the case against
C the involuntary administration of the tests in question.
Firstly, the claim that the results obtained from these
techniques will help in extraordinary situations is
questionable. All of the tests in question are those which
need to be patiently administered and the forensic
D psychologist or the examiner has to be very skilful and
thorough while interpreting the results. In a narcoanalysis
test the subject is likely to divulge a lot of irrelevant and
incoherent information. The subject is.as likely to divulge
false information as he/she is likely to reveal useful facts.
E Sometimes the revelations may begin to make sense only
when 1compared with the testimony of several other
individuals or through the discovery of fresh materials ..
In a polygraph test, interpreting the results is a complex
process that involves accounting for distortions such as
F 'countermeasures;, used by the subject and weather
condition.s among others. In a BEAP test, there is always
the possibility of the subject having had prior exposure
to the 'probes' that are used as stimuli. All of this is a
gradually unfolding process and it is not appropriate to
G argue that the test results will always prove to be crucial
in times of exigency. It is evident that both the tasks of
preparing for these tests a"nd interpreting their results
need considerable time and expertise. [Para 217] [588-F'-
H; 589-A-D] , .
H 18.3. If forc:ible administration of these techniques
SELVI & ORS. v. STATE OF KARNATAKA 429
are permitted, it could be the first step on a very slippery- A
slope as far as the standatds of police behaviour are
concerned. It has been sug~ested that the promotion of
these techniques could reduce the regrettably high
incidence of 'third degree methods' that are being used
by policemen all over the country. This is a circular line B
of reasoning since one form of improper behaviour is
sought to be- replaced by ancther. What this will result in
is that investigators will increasingly seek reliance on the
impugned techniques rather than engaging in a thorough
investigation. The widespread use of 'third-degree' c
interrogation methods so as to speak is a separate
problem and needs to be tackled through long~term
solutions such as more emphasis on the protection of
human rights during police training, providing adequate
res"ources for investigators and stronger accountability 0
measures when such abuses do take place. [Para 218)
[589-D-G]
18.4. The claim that the use of these techniques will
only be sought in cases involving heinous offences rings
hollow since there will no principled basis for restricting E
their use once the investigators are given. the discretion
to do so. From the statistics presented before this Court
as well as the chargE'.s filed against the parties in the
impugned judgments, it is obvious that investigators
have sought reliance on the impugned tests to expedite F
investigations,· unmindful of the nature of offences
involved. In this regard, this Court does not have the
authority to permit the qualified use of these techniques
by way of enumerating the offences which warrant their
use. By itself, permitting such qualified use would G
amount to a law-making function which is clearly outside
ttie judicial domain. [Para 219) [589-G-H; 590-A-C]
18.5. One of the main functions of constitutionally
prescribed rights is to safeguard the interests of citizens
in their interactions with the Government. As the H
430 SUPREME COURT REPORTS [201 O] 5 S.C.R.
A guarpians of these rights, this Court will be failing in its
duty if this Court permits any citizen to be forcibly_
subjected to the tests in question. One could argue that
some of the parties who will benefit from·this decision are
hardened criminals who have no regard for societal
B value$. However, it must be borne in mind that in
constitutional adjudication this Court's concerns are not
confined to th~ facts at hand but extend to the
implications of the decision for the whole population as
well as the future generations. Sometimes there are
c · apprehensions about judges imposing their personar
sensibilities through broadly worded terms such as
'substantive due process', but in this case the inquiry has
been based on a faithful understanding of principles
entrenched in our Constitution. (Para 220) [590-C-F]
D Public Committee Against Torture in Israel v. State of
Israel, H.C. 5100 I 94 (1999), referred to.
Jason R. Odeshoo: 'Truth or Dare?: Terrorism and Truth
Serum in the Post- 9111 World, 57 Stanford Law Review
E 209-255 (October 2004) and Kenneth Lasson: 'Torture,
Truth Serum, and Ticking Bombs: Toward a pragmatic
perspective on coercive interrogation', 39 Loyola University
Chicago Law Journal 329-360 (Winter 2008), referred to.
Case Law Reference:
F
(1923) 54 App DC 46 referred to Para 21
509 us 579 (1993) - referred to Para 22
885 F.2d 1529 (11th Circ. 1989) referred to Para 26
G 57 F.3d 428 (5th Circ. 1995) referred to Para 27
908 F. Supp 877 (O.N.M. 1995) referred to Para 28
104 F.3d 225 (9th. Circ. 1997) referred to Para 29
H 523 US 303 (1998) referred to Para 30
SELVI & ORS. v. STATE OF KARNATAKA
,
431
[1987] 36 c.c.c. (3d) 481 referred to Para 37 A
314 Mo. 599 (1926) referred to Para 49
56 N.M. 237 (1952) referred to Para 50
42 Cal. 2d 219 (1954) referred to Para 51 B
237 F. 2d 893 (9th Circ. 1956) referred to Para 52
333 S.W.2d. 755 (1960) referred to Para 53
372 us 293 (1963) referred to Para 54
c
572 F.2d 523 (5th Circ. 1978) referred to Para 56
753 F. 2d 1522 (9th Circ. 1985) referred to Para 57
56 A.2d 1320 (N.J. 1989) referred to Para 60
[1979] 44 c.c.c. (2d) 385 referred to Para 61 D
[1914] A.C. 599 (P.C.) 609 referred to Para 62
. 483 us 44 (1987) referred to Para 66
753 F. 2d 1522 (9th Circ. 1985) referred to Para 66 E
659 N.W.2d 509 (2003) referred to Para 75
105 P. 3d 832 (2005) referred to Para 77
(1978) 1 sec 248 relied on Para 82
F
(1978) 2 sec 424
.
161 us 591 (1896)
referred to Para 90
referred to Para 90
384 us 436 (1966) referred to Para 90
G
[1962] 3 SCR 10 relied on Para 93
378 us 52 (1964) referred to Para 94
[1979] 1 All ER 939 referred to Para 94
342 us 166 (1951) referred to Para 98 H
432 SUPREME COURT REPORTS [2010] 5 S.C.R.
A [1954] SCR 1077 referred to Para 100
384 us 436 (1966) referred to Para 103
[1961] 1 SCR 417 referred to Para 111
[1969] 2 SCR 461 referred to Para 112
B
(1980) 4 sec 600 referred to Para 113
341 us 479 (1951) referred to Para 116
(1935) AC 462 referred to Para 126
c
(1978) 4 sec 494 relied on Para 128 ·
384 us 757 (1966) referred to Para 137
218 us 245 (1910) referred to Para 137
D (1997) 23 EHRR 313 referred to Para 139
AIR 1931 Cal 601 referred to Para 141
AIR 1959 Born 284 referred to Para 141 ·
E (2003) 4 sec 493 referred to Para 143
2004 Cri L J 4003 (Ori) referred to Para 144
AIR 1962 SC 159 referred to Para 151
1971 Cri L J 1405 (Born) referred tO Para 153
F
1976 Cri L J 1680 (All) referred to Para 153
342 us 165 (1952) referred to Para 173
AIR 1964 Born 253 referred to Para 174
.G
352 us 432 (1957) referred to Para 174
1977 Cri L J 1797 (A.P.) referred to Para 175
1981 Cri L J 125 (Born) referred to Para 175
H AIR 1963 SC 1295 referred to Para 178
SELVI & ORS. v. STATE OF KARNATAKA 433
AIR 1978 SC 597 referred to Para 179 A
(1975) 2 sec 148 referred to Para 180
(1994) 6 sec 632 referred to Para 181
AIR 1997 SC 568 referred to Para 182 B
(1998) 8 sec 296 referred to Para 183
(2003) 1 sec 500 referred to Para 184
AIR 2001 AP 502 referred to Para 184
c
(2003) 1 All ER 148 (CA) referred to Para 185
(2001) 1 All ER 577 referred to Para 187
AIR 1997 SC 610 relied on Para 195
[1987) 36 c.c.c. (3d) 481 referred to Para 212 D
523 us 303 (1998) referred to Para 213
H.C. 5100 I 94 (1999) referred to Para 220
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal E
No. 1267 of 2004.
From the Judgment & Order dated 10.9.2004 of the High
Court of Karnataka at Bangalore in Criminal Petition No. 1964
of 2004.
F
WITH
Crl. A.No. 987 of 2010 & 54, 55, 56-57, 58-59 of 2005 & 1199
of 2006, 1471 of 2007 & 990 of 2010.
Goolam E. Vahanvati, SG, Dushyant Dave (A.C.), Anoop G
G. Chaudhari, June Chaudhari, T.R. Andhyarujina, Harish N.
Salve, Rajesh Mahale, A.S. Bhasme, Santosh Paul, Aanchal
Jain, M.J. Paul, Priyank Adhyaru, Manoj Goel, Shuvodeep Roy,
v'Vajeesh Shafiq, Gopal Verma (for Shivaji M: Jadhav), S.S.
H
434 SUPREME COURT REPORTS [2010] 5 S.C.R.
A Shinde, Ravindra Keshavrao Adsure, Bina Madhavan, S.U.K.
Sagar, Minakshi Grover (for Lawyer's Knit & Co.), A. Sumathi,
Sanjay R. Hegde, Amit Kr. Chawla, S. J. Aristotle, Devvrat (for
P. Parmeswaran), A. Subba Rao, T. Srinivasa Murthy, Devdatt
Kamat, Sushma Suri, Manjula Gupta, D.M. Nargolkar, Saurav
B Kirpal, Hemantika Wahi, Jesal, Pinky, Devendra Kr. Singh, D.
Bharathi Reddy, Ajit S. Bhasme, Hage Lampu, Raghavendra
Srivastava, Mukta Gupta, Vibhor Garg, Mukul Gupta, Sangeeta
Singh, Tushar Mehta, Venayagam (for Lawyers' Knit & Co.),
Altaf Fathima for the appearing parties.
c The Judgment of the Court was delivered by
K.G. BALAKRISHNAN, CJI. Leave granted in SLP (Crl.)
Nos. 10 of 2006 and 6711 of 2007.
1. The legal questions in this batch of criminal appeals
D 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
E 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
F about the meaning and scope of fundamental rights which are
available to all citizens. Therefore, we must examine the
implications of permitting the use of the impugned techniques
in a variety of settings.
G 2 .. 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
H investigating agencies to prevent criminal activities in the future
SELVI & ORS. v. STATE OF KARNATAKA 435
[K.G. BALAKRISHNAN, CJI.]
as well as in circumstances where it is difficult to gather A
evidence through ordinary means. In some of the impugned
judgments, reliance has been placed on certain provisions of
the Code of Criminal Procedure, 1973 and the Indian Evidence
Act, 1872 to refer back to the responsibilities placed on citizens
to fully co-operate with investigation agencies. It has also been B
urged that administering these techniques does not cause any
bodily harm and that the extracted information will be used only
for strengthening investigation efforts and will not be admitted
as evidence during the trial stage. The assertion is that
improvements in fact-finding during the investigation stage will c
consequently help to increase the rate of prosecution as well
as the rate of acquittal. Yet another line of reasoning is that
these scientific techniques are a softer alternative to the
regrettable and allegedly widespread use of 'third degree
rpethods' by investigators. D
. 3. 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 our Constitution. In one of the impugned judgments, it
has been held that the information extracted through methods E
such as 'polygraph examination' and the 'Brain Electrical
Activation Profile (BEAP) test' cannot be equated with
'testimonial compulsion' because the test subject is not
required to give verbal answers, thereby falling outside the
protective scope of Article 20(3). It was further ruled that the F
verbal revelations made during a narcoanalysis test do not
attract the bar of Article 20(3) since the inculpatory or
exculpatory nature of these revelations is not known at the time
of conducting the test. To address these questions among
others, it is necessary to inquire into the historical origins and G
rationale behind the 'right against self-incrimination'. The
principal questions are whether this right extends to the
investigation stage and whether the test results are of a
'testimonial' character, thereby attracting the protection of
~rticle 20(3). Furthermore, we must examine whether relying H
436 SUPREME COURT REPORTS [2010] 5 S.C.R.
A on the test results or materials discovered with the help of the
same creates a reasonable likelihood of incrimination for the
test subject.
4. We must also deal with arguments invoking the
8 guarantee of 'substantive due process' which is part and parcel
of the idea of 'personal liberty' protected by Article 21 of the
Constitution. The first question in this regard is whether the
provisions in the Code of Criminal Procedure, 1973 that
provide for 'medical examination' during the course of
C investigation can be read expansively to include the impugned
techniques, even though the latter are not explicitly enumerated.
To answer this question, it will be ;necessary to discuss the
principles governing the interpretation of statutes in light of
scientific advancements. Questions have also been raised with
respect to the professional ethics of medical personnel involved
D in the administration of these techniques. Furthermbre, Article
21 has been judicially expanded to include ..a 'right against
cruel, inhuman or degrading treatment', which requires us to
determine whether the involuntary adminis.tration of the
impugned techniques violates this right whose scope
E corresponds with evolving international human rights norms. \ii/a'
must also consider contentions that have invoked the test
subject's 'right to privacy', both in a physical and mental sense.
5. The scientific validity of the impugned techniques has
F been questioned and it is argued that their results are not
entirely reliable. For instance, the narcoanalysis technique
involves the intravenou~ administration of sodium pentothal, a
drug which lowers inhibitions on part of the subject and induces
the person to talk freely. However, empirical studies suggest
G that the drug"induced revelations need not necessarily be true.
Polygraph examination and the BEAP test are methods which
serve the respective purposes of lie-detection and gauging the
subject's familiarity with information related to the crime. These
techniques are essentially confirmatory in nature, wherein
inferences are drawn from the physiological responses of the
H
SELVI & ORS. v. STATE OF KARNATAKA 437
[K.G. BALAKRISHNAN, CJI.]
subject. However, the reliability of these methods has been A
repeatedly questioned in empirical studies. In the context of
criminal cases, the reliability of scientific evidence bears a
causal link with several dimensions of the right to a fair trial such
as the requisite standard of proving guilt beyond reasonable
doubt and the right of the accused to present a defence. We B
must be mindful of the fact that these requirements have long
been recognised as components of 'personal liberty' under
Article 21 of the Constitution. Hence it will be instructive to
gather some insights about the admissibility of scientific
evidence. c
6. In the course of the proceedings before this Court, oral
submissions were made by Mr. Rajesh Mahale, Adv. (Crl. App.
No. 1267 of 2004), Mr. Manoj Goel, Adv. (Crl. App. Nos. 56-
57 of 2005), Mr. Santosh Paul, Adv. (Crl. App. No. 54 of 2005)
and Mr. Harish Salve, Sr. Adv. (Crl. App. Nos. 1199 of 2006 D
and No. 1471 of 2007) - all of whom argued against the
involuntary administration of the impugned techniques.
Arguments defending the compulsory administration of these
techniques were presented by Mr. Goolam E. Vahanvati,
Solicitor General of India [now Attorney General for India] and E
Mr. Anoop G. Choudhari, Sr. Adv. who appeared on behalf of
the Union of India. These were further supported by Mr. T.R.
Andhyarujina, Sr. Adv. who appeared on behalf of the Central
Bureau of Investigation (CBI) and Mr. Sanjay Hegde, Adv. who
represented the State of Karnataka. Mr. Dushyant Dave, Sr. F
Adv., rendered assistance as amicus curiae in this matter.
7. At this stage, it will be useful to frame the questions of
law and outline the relevant sub-questions in the following
manner:
G
I. Whether the involuntary administration of the impugned
techniques violates the 'right against self-incrimination'
enumerated in Article 20(3) of the Constitution?
1-A. Whether the investigative use of the impugned H
438 SUPREME COURT REPORTS [2010] 5 S.C.R.
A techniques creates a likelihood of incrimination for the
subject?
1-B. Whether the results derived from the impugned
techniques amount to 'testimonial compulsion' thereby
8 attracting the bar of Article 20(3)?
IL 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?
c
8. Before answering these questions, it is necessary to
examine the evolution and specific uses of the impugned
techniques. Hence, a description of each of the test procedures
is followed by an overview of their possible uses, both within
D and outside the criminal justice system. It is also necessary to
gauge the limitations of these.techniques. Owing to the dearth
of Indian decisions on this subject, we must look to precedents
from foreign jurisdictions which deal with the application of
these techniques in the area of criminal justice.
E DESCRIPTIONS OF TESTS - USES, LIMITATIONS AND
PRECEDENTS
Polygraph Examination
F 9. The origins of polygraph examination have been traced
back to the efforts of Lombroso, a criminologist who
experimented with a machine that measured blood pressure
and pulse to assess the honesty of persons suspected of
criminal conduct. His device was called a hydrosphygmograph.
A similar device was used by psychologist William Marston
G during World War I in espionage cases, which proved to be a
precursor to its use in the criminal justice system. In 1921, John
Larson incorporated the measurement of respiration rate and
by 1939 Leonard Keeler added skin conductance and an
amplifier to the parameters examined by a polygraph machine.
H
SELVI & ORS. v. STATE OF KARNATAKA 439
[K.G. BALAKRISHNAN, CJI.]
10. The theory behind polygraph tests is that when a A
subject is lying in response to a question, he/she will produce
physiological responses that are different from those that arise
in the normal course. During the polygraph examination, several
instruments are attached to the subject for measuring and
recording the physiological responses. The examiner then B
reads these results, analyzes them and proceeds to gauge the
credibility of the subject's answers. Instruments such as
cardiographs, pneumographs, cardio-cuffs and sensitive
electrodes are used in the course of polygraph examinations.
They measure changes in aspects such as respiration, blood c
pressure, blood flow, pulse and galvanic skin resistance. The
truthfulness or falsity on part of the subject is assessed by
relying on the records of the physiological responses. [See:
Laboratory Procedure Manual - Polygraph Examination
(Directorate of Forensic Science, Ministry of Home Affairs, D
Government of India, New Delhi - 2005)]
11. There are three prominent polygraph examination
techniques:
i. The relevant-irrelevant (R-1) technique E
ii. The control question (CQ) technique
iii. Directed Lie-Control (DLC) technique
Each of these techniques includes a pre-test interview during F
which the subject is acquainted with the test procedure and the
examiner gathers the information which is needed to finalize
the questions that are to be asked. An important objective of
this exercise is to mitigate the possibility of a feeling of surprise
on part of the subject which could be triggered by unexpected G
questions. This is significant because an expression of surprise
could be mistaken for physiological responses that are similar
to those associated with deception. [Refer: David Gallai,
'Polygraph evidence in federal courts: Should it be admissible?'
36 American Criminal Law Review 87-116 (Winter 1999) at p. H
440 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 91]. Needless to say, the polygraph examiner should be familiar
with the details of the ongoing investigation. To meet this end
the investigators are required to ~hare copies of documents
such as the First Information Report (FIR), Medico-Legal
Reports (MLR) and Post-Mortem Reports (PMR) depending on
B the nature of the facts being investigated.
12. The control-question (CQ) technique is the most
commonly used one and its procedure as well as scoring
system has been described in the materials submitted on
C behalf of CBI. The test consist$. of control questions and relev~nt
questions. The control questions are irrelevant to the facts
being investigated but they are intended to provoke distinct
physiological responses, as well as false denials. These
responses are compared with the responses triggered by the
relevant questions. Theoretically, a truthful subject will show
D greater physiological responses to the control questions which
he/she has reluctantly answered falsely, than to the relevant
questions, which the subject can easily answer truthfully.
Conversely, a deceptive subject will show greater physiological
responses while giving false answers to relevant questions in
E comparison to the responses triggered by false answers to
control questions. In other words, a guilty subject is more likely
to be concerned with lying about the relevant facts as opposed
to lying about other facts in general. An innocent subject will have
no trouble in truthfully answering the relevant questions but will
F have trouble in giving false answers to control questions. The
scoring of the tests is done by assigning a numerical value,
positive or negative, to each response given by the subject.
After accounting for all the numbers, the result is compared to
a standard numerical value to indicate the overall level of
G deception. The net conclusion may indicate truth, deception or
uncertainty.
13. The use of polygraph examinations in the criminal
justice system has been contentiou~. In this case, we are mainly
considered with situations when investigators seek reliance on
H
SELVI & ORS. v. STATE OF KARNATAKA 441
[K.G. BALAKRISHNAN, CJI.]
these tests to detect deception or to verify the truth of previous A
testimonies. Furthermore, litigation related to polygraph tests
has also involved situations where suspects and defendants in
criminal cases have sought reliance on them to demonstrate
their innocence. It is also conceivable that witnesses can be
compelled to undergo polygraph tests in order to test the B
credibility of their testimonies or to question their mental
capacity or to even attack their character.
14. Another controversial use of polygraph tests has been
on victims of sexual offences for testing the veracity of their C
allegations. While several states in the U.S.A. have enacted
provisions to prohibit such use, the text of the Laboratory
Procedure Manual for Polygraph Examination [supra.]
indicates that this is an acceptable use. In this regard, Para 3.4
(v) of the said Manual reads as follows:
D
"(v) In cases of alleged sex offences such as intercourse
with a female child, forcible rape, indecent liberties or
perversion, it is important that the victim, as well as the
accused, be made available for interview and polygraph
examination. It is essential that the polygraph examiner get E
a first hand detailed statement from the victim, and the
interview of the victim precede that of the suspect or
witnesses .... "
[The following article includes a table which lists out the
F
statutorily permissible uses of polygraph examination in the
different state jurisdictions of the United States of America:
Henry T. Greely and Judy Illes, 'Neuroscience based lie-
detection: The urgent need for regulation', 33 American Journal
of Law and Medicine, 377-421 (2007)]
G
15. The propriety of compelling the victims of sexual
offences to undergo a polygraph examination certainly merits
consideration in the present case. It must also be noted that in
some jurisdictions polygraph tests have been permitted for the
H
442 SUPREME COURT REPORTS [2010) 5 S.C.R.
A purpose of screening public employees, both at the stage of
recruitment and at regular intervals during the service-period.
In the U.S.A., the widespread acceptance of polygraph tests
for checking the antecedents and monitoring the conduct of
public employees has encouraged private employers to resort
B to the same. In fact the Employee Polygraph Protection Act,
1998 was designed to restrict their USE) for employee screening.
This development must be noted because the unqualified
acceptance of 'Lie-detector tests' in India's criminal justice
system could have the unintended consequence of
c encouraging their use by private parties.
16. Polygraph tests have several limitations and therefore
a margin for errors. The premise behind these tests is
questionable because the measured changes in physiological
" responses are not necessarily triggered by lying or deception.
D 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
E 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 disparate physiological responses which could
mislead the examiner. In some cases the subject may have
F suffered from loss of memory in the intervening time-period
between the relevant act and the 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
G 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 ~nd the subject may not be
aware of the fact that he/she is lying.
H
SELVI & ORS. v. STATE OF KARNATAKA 443
[K.G. BALAKRISHNAN, CJI.]
17. The errors associated with polygraph tests are broadly A
grouped into two categories, i.e., 'false positives' and 'false
negatives'. A 'false positive' occurs when the results indicate
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 B
inherent complexities, the qualifications· 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. c
18. However, the biggest concern about polygraph tests
is that an examiner may not be able to recognise deliberate
attempts on part of the subject to manipulate the test results.
Such 'countermeasures' are techniques which are deliberately
used by the subject to create certain physiological responses D
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 E
mental anxiety and stress at the time of the interview, so that
the responses triggered by lying cannot be readily
distinguished.
19. Since polygraph tests have come to be widely relied F
upon for employee screening in the U.S.A., the U.S.
Department of Energy had requested the National Research
Council of the National Academies (NRC) to review their use
for different purposes. The following conclusion was stated in
its report. i.e. The Polygraph and Lie-Detection: Committee G
ro Review the scientific evidence on the Polygraph
(Washington D.C,: National Academies Press, 2003) at pp.
212~213:
"Polygraph Accuracy: Almost a century of research in
scientific-psychology and physiology provides little basis H
444 SUPREME COURT REPORTS [2010] 5 S.C.R.
A for the expectation that a polygraph test could have
extremely high accuracy. The physiological responses
measured by the polygraph are not uniquely related to
deception. That is, the responses measured by the
polygraph do not all reflect a single underlying process: a
B variety of psychological and physiological processes,
including some that can be consciously controlled, can
affect polygraph measures and test results. Moreover, most
polygraph testing procedures allow for uncontrolled
variation in test administration {e.g., creation of the
c emotional climate, selecting questions) that can be
expected to result in variations in accuracy and that limit
the level of accuracy that can be consistently achieved.
Theoretical Basis: The theoretical rationale for the.
polygraph is quite weak, especially in terms of differe9tial
D fear, arousal, or other emotional states that are triggered
in response to relevant or comparison questions. We have
not found any serious effort at construct validation of
polygraph testing.
E Research Progress: Research on the polygraph has not
progressed over time in the manner of a typical scientific
field. It has not accumulated knowledge or strengthened
its scientific underpinnings in any significant manner.
Polygraph research has proceeded in relative isolation
F from rel~ted fields of basic science and has benefited little
from conceptual, theoretical, and technological advances
in those fields that are relevant to the psychophysiological
detection of deception.
Future Potential: The inherent ambiguity of the
G physiological measures used in the polygraph suggests
that further investments in improving polygraph technique
and interpretation will bring only modest
.
improvements
I
in
accuracy." /
H 20. A Working Party of the British Psychological Society
SELVI & ORS. v. STATE OF KARNATAKA 445
[K.G. BALAKRISHNAN, CJI.]
(BPS) also came to a similar conclusion in a study published A
in 2004. The key finding is reproduced below, [Cited from: A
Review of the current scientific status and fields of application
of polygraph deception detection - Final Report (6 October,
2004) from The British Psychological Society (BPS) Working
Party at p. 1O]: B
"A polygraph is sometimes called a lie detector, but this
term is misleading. A polygraph does not detect lies, but
only arousal which is assumed to accompany telling a lie.
Polygraph examiners have no other option than to measure C
deception in such an indirect way, as a pattern of
physiological activ1ty directly related to lying does not exist
(Saxe, 1991 ). Three of the four most popular lie detection
procedures using the polygraph (Relevant/Irrelevant Test,
Control Question Test and Directed Lie Test, ... ) are built
upon the premise that, while answering so-called 'relevant' D
questions, liars will be more aroused than while answering
so-called 'control' questions, due to a fear of detection
(fear of getting caught lying). This premise is somewhat
naive as truth tellers may also be more aroused when
answering the relevant questions, particularly: (i) when E
these relevant questions are emotion evoking questions
(e.g. when an innocent man, suspected of murdering his
beloved wife, is asked questions about his wife in a
polygraph test, the memory of his late wife might re-awaken
his strong feelings about her); and (ii) when the innocent F
examinee experiences fear, which may occur, for example,
when the person is afraid that his or her honest answers
will not be believed by the polygraph examiner. The other
popular test (Guilty Knowledge Test, ... ) is built upon the
premise that guilty examinees will be more aroused G
concerning certain information due to different orienting
reactions, that is, they will show enhanced orienting
responses when recognising crucial details of a crime.
This premise has strong support in psychophysiological
research (Fiedler, Schmidt & Stahl, 2002)." H
446 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 21. Coming to judicial precedents, a decision reported as
Frye v. United States, (1923) 54 App DC 46, dealt with a
precursor to the polygraph which detected deception by
measuring changes in systolic blood pressure. In that case the
defendant was subjected to this test before the trial and his
B counsel had requested the court that the scientist who had
conducted the same should be allowed to give expert testimony
about the results. Both the trial court and the appellate court
rejected the request for admitting such testimony. The appellate
court identified the considerations that would govern the
c adrriissibility of expert testimony based on scientific insights. It
was-held, Id. at p. 47:
·~· Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable
stag_es is difficult to define. Som~_here in this twilight zone
D the evidential force of the principle must be recognized,
and while courts will go a long way in admitting expert
testimony deduced from a well-recognized scientific
principle or discovery, the thing from which the deduction
is made must be sufficiently established to have gained
E general acceptance in the particular field in which it
belongs.
We think the systolic blood pressure deception test has
not yet gained such standing and scientific recognition
F among physiological and psychological authorities as
would justify the courts in admitting expert testimony
deduced from the discovery, development, and
experiments thus far made."
22. The standard of 'general acceptance in the particular
G field' governed the admissibility of scientific evidence for
several decades. It was changed much later by the U.S.
Supreme Court in Daubert v. Merrell Dow Pharmaceuticals
Inc., 509 US 579 (1993). In that case the petitioners had
instituted proceedings against a pharmaceutical company
H .which had marketed 'Bendectin', a prescription drug. They had
SELVI & ORS. v. STATE OF KARNATAKA 447
[K.G. BALAKRISHNAN, CJI.]
alleged that the ingestion of this drug by expecting mothers had A
caused birth defects in the children born to them. To contesl
these allegations, the pharmaceutical company had submitted
an affidavit authored by an epidemiologist. The petitioners had
also submitted expert opinion testimony in support of their
contentions. The District Court had ruled in favour of the 8
company by ruling))lat their scientific evidence met the
standard of 'general i~ptance in the particular field' whereas·
the expert opinion testimony produced on behalf of the
petitioners did not meet the said standard. The Court of
Appeals for the Ninth Circuit upheld the judgment and the case C
reached the U.S. Supreme Court which vacated the appellate
court's judgment and remanded the case back to the trial court.
It was unanimously held that the 'general acceptance' standard
articulated in Frye (supra.) had since been displaced by the
enactment of the Federal Rules of Evidence in 1975, wherein
Rule 702 governed the admissibility of expert opinion testimony D
that was based on scientific findings. This rule provided that:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert E
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
23. It was held that the trial court should have evaluated
the scientific evidence as per Rule 702 of the Federal Rules
F
of Evidence which mandates an inquiry into the relevance as
well as the reliability of the scientific technique in question. The
majority opinion (Blackmun, J.) noted that the trial judge's first
step should be a preliminary assessment of whether the
testimony's underlying reasoning or methodology is
scientifically valid and whether it can be properly applied to the G
facts in issue. Several other considerations will be applicable,
such as:
* whether the theory or technique in question can be
and has been tested H
448 SUPREME COURT REPORTS [2010] 5 S.C.R.
A * whether it has been subjected to peer review and
publication
* its known or potential error rate
* the existence and maintenance of ·standards
B controlling its operation
* whether it has attracted widespread acceptance
within the scientific community
24. It was further observed that such an inquiry should be
C a flexible one, and its focus must be solely on principles and
methodology, not on the conclusions that they generate. It was
reasoned that instead of the wholesale exclusion of sci~_11tific
evidence on account of the high threshold of proving 'general
acceptance in the particular field', the same could be admitted
D and then challenged through conventional methods such as
cross-examination, presentation of contrary evidence and
careful instructions to juries about the burden of proof. In this
regard, the trial judge is expected to perform a 'gate-keeping'
role to decide on the admission of expert testimony based on
E scientific techniques. It should also be kept in mind that Rule
403 of the Federal Rules of Evidence, 1975 empowers a trial.
judge to exclude any form of evidence if it is found that its
probative value will be outweighed by its prejudicial effect.
F 25. Prior to the Daubert decision (supra.), most
jurisdictions in the U.S.A. had disapproved of the use of
polygraph tests in criminal cases. Some State jurisdictions had
absolutely prohibited the admission of polygraph test results,
while a few had allowed consideration of the same if certain
conditions were met. These conditions included a prior
G stipulation between the parties to undergo these tests with
procedural safeguards such as the involvement of experienced
examiners, presence of counsel and proper recording to enable
subsequent scrutiny. A dissonance had also emerged in the
treatment of polygraph test results in the different Circuit
H
SELVI & ORS. v. STATE OF KARNATAKA 449
[K.G. BALAKRISHNAN, CJI.]
jurisdictions, with some jurisdictions giving trial judges the A
discretion to enquire into the reliability of polygraph test results
on a case-by-case basis.
26. For example, in United States v. Piccinonna, 885 F.2d
1529 (11th Circ. 1989), it was noted that in some instances 8
polygraphy satisfied the standard of 'general acceptance in the
particular field' as required by Frye (supra.). It was held that
polygraph testimony could be admissible under two situations,
namely when the parties themselves agree on a stipulation to
this effect or for the purpose of impeaching and corroborating C
the testimony of witnesses. It was clarified that polygraph
examination results could not be directly used to bolster the
testimony of a witness. However, they could be used to attack
the credibility of a witness or even to rehabilitate one after his/
her credibility has been attacked by the other side. Despite
these observations, the trial court did not admit the polygraph D
results on remand in this particular case.
27. However, after Daubert (supra.) prescribed a more
liberal criterion for determining the admissibility of scientific
evidence, some Courts ruled that weightage could be given to E
polygraph results. For instance in United States v. Posido, 57
F.3d 428 (5th Gire. 1995),. the facts related to a pre-trial
evidentiary hearing where the defendants had asked for the
exclusion of forty-four kilograms of cocaine that had been
recovered from their luggage at an airport. The District Court F
had refused to consider polygraph evidence given by the
defendants in support of their version of events leading up to
the seizure of the drugs and their arrest. On appeal, the Fifth
Circuit Court held that the rationale for disregarding polygraph
evidence did not survive the Daubert decision. The Court G
proceeded to remand the case to the trial court and directed
that the admissibility of the polygraph results should be
assessed as per the factors enumerated in Daubert (supra.).
It was held, Id. at p. 4_34:
"There can be no doubt that tremendous advances have H
450 SUPREME COURT REPORTS [2010] 5 S.C.R.
A been made in polygraph instrumentation and technique in
the years since Frye. The test at issue in Frye measured
only changes in the subject's systolic blood pressure in
response to test questions. [Frye v. United States ... ]
Modern instrumentation detects changes in the subject's
B blood pressure, pulse, thoracic and abdominal respiration,
and galvanic skin response. Current research indicates
that, when given under controlled conditions, the polygraph
technique accurately predicts truth or deception between
seventy and ninety percent of the time. Remaining
c controversy about test accuracy is almost unanimously
attributed to variations in the integrity of the testing
environment and the qualifications of the examiner: Such
variation also exists in many of the disciplines and for
much of the scientific evidence we routinely find
admissible under Rule 702. [See McCormick on Evidence
D
206 at 915 & n. 57] Further, there is good indication that
polygraph technique and the requirements for professional
polygraphists are becoming progressively more
standardized. In addition, polygraph technique has been
and continues to be subjected to extensive study and
E publication. Finally, polygraph is now so widely used by
employers and government agencies alike.
To iterate, we do not now hold that polygraph examinations
are scientifically valid or that they will always assist the trier
F of fact, in this or any other individual case. We merely
remove the obstacle of the per se rule against
admissibility, which was based on antiquated concepts
about the technical ability of the polygraph and legal
precepts that have been expressly overruled by the
G Supreme Court."
(internal citations omitted)
28. Despite these favourable observations, the polygraph
results were excluded by the District Court on remand.
H However, we have come across at least one case decided after
SELVI & ORS. v. STATE OF KARNATAKA 451
[K.G. BALAKRISHNAN, CJI.]
Daubert (supra.) where a trial court had admitted expert opinion A
testimony about polygraph results. In United States v. Galbreth,
908 F. Supp 877 (D.N.M. 1995), the District Court took note of
New Mexico Rule of Evidence 11-707 which established
standards for the admissi.on of polygraph evidence. The said
provision laid down that polygraph evidence would be B
admissible only when the following conditions are met: the
examiner must have had at least 5 years experience in
conducting polygraph tests and 20 hours of continuing
education within the past year; the polygraph examination must
be tape recorded in its entirety; the polygraph charts must be C
scored quantitatively in a manner generally accepted as reliable
by polygraph experts; all polygraph materials must be provided
to the opposing party at least 10 days before trial; and all
polygraph examinations conducted on the subject must be
disclosed. It was found that all of these requirements had been
complied with in the facts at hand. The District Court concluded D
with these words, Id. at p. 896:
" ... the Court finds that the expert opinion testimony
regarding the polygraph results of defendant Galbreth is
admissible. However, because the evidentiary reliability of E
opinion testimony regarding the results of a particular
. polygraph test is dependent upon a properly conducted
examination by a highly qualified, experienced and skilful
examiner, nothing in this opinion is intended to reflect the
judgment that polygraph results are per se admissible. F
Rather, in the context of the polygraph technique, trial
courts must engage upon a case specific inquiry to
determine the admissibility of such testimony."
29. We were also alerted to the decision in United States
v. Cordoba, 104 F.3d 225 (9th. Circ. 1997). In that case, the G
Ninth Circuit Court concluded that the position favouring
absolute exclusion of unstipulated polygraph evidence had
effectively been overruled in Daubert (supra.). The defendant
had been convicted for the possession and distribution of
H
452 SUPREME COURT REPORTS [2010] 5 S.C.R.
A cocaine since the drugs had been recovered from a van which
he had been driving. However, when 'he took an unstipulated
polygraph test, the results suggested that he was not aware of
the presence of drugs in the van. At the trial stage, the
prosecution had moved to suppress the test results and the
B District Court had accordingly excluded the polygraph evidence.
However, the Ninth Circuit Court remanded the case back after
finding that the trial judge should have adopted the parameters
enumerated in Daubert (supra.) to decide on the admissibility
of the polygraph test results. It was observed, Id. at p. 228:
C "With this holding, we are not expressing new enthusiasm
for admission of unstipulated polygraph eviden'ce. The
inherent problematic nature of such evidence remains. As
we noted in Brown, polygraph evidence has grave potential
for interfering with the deliberative process. [Brqwn v.
D Darcy, 783 F.2d 1389 (9th Circ. 1986) at 1396-1397]
However, these matters are for determination by the trial
judge who must not only evaluate the evidence under Rule
702, but consider admission under Rule 403. Thus, we
adopt the view of Judge Jameson's dissent in Brown that
E these are matters which must be left to the sound discretion
of the trial court, consistent with Daubert standards."
30. The decisions cited above had led to some uncertainty
about the admissibility of polygraph test results. However, this
F uncertainty was laid to rest by an authoritative ruling of the U.S.
Supreme Court in United States v. Scheffer, 523 US 303
(1998). In that case, an eight judge majority decided that Military
Rule of Evidence 707 (which made polygraph results
inadmissible in court-martial proceedings) did not violate an
accused person's Sixth Amendment right to present a defence.
G The relevant part of the provision follows:
"(a) Notwithstanding any other provision of law, the results
of a polygraph examination, the opinion of a polygraph
examiner, or any reference to an offer to take, failure to
H take, or taking of a polygraph examination, shall not be
SELVI & ORS. v. STATE OF KARNATAKA 453
[K.G. BALAKRISHNAN, CJI.]
admitted into evidence." A
31. The facts were that Scheffer, a U.S. Air Force
serviceman had faced court-martial proceedings because a
routine urinalysis showed that he had consumed
methamphetamines. However, a polygraph test suggested that 8
he had been truthful in denying the intentional consumption of
the drugs. His defence of 'innocent ingestion' was not accepted
during the court-martial proceedings and the polygraph results
were not admitted in evidence. The Air Force Court of Criminal
Appeals affirmed the decision given in the court-martial C
proceedings but the Court of Appeals for the Armed Forces
reversed the same by holding that an absolute exclusion of
polygraph evidence (offered to rebut an attack on the credibility
of the accused) would violate Scheffer's Sixth Amendment right
to present a defence. Hence, the matter reached the Supr~me
Court ":Jhich decided that the exclusion of polygraph evidence D
did not violate the said constitutional right.
32. Eight judges agreed that testimony about polygraph test
results should not be admissible on account of the inherent
unreliability of the results obtained. Four judges agreed that E
reliance on polygraph results would displace the fact-finding role
of the jury and lead to collateral litigation. In the words of
Clarence Thomas, J., Id. at p. 309:
"Rule 707 serves several legitimate interests in the criminal
F
trial process. These interests include ensuring that only
reliable evidence is introduced at trial, preserving the jury's
role in determining credibility, and avoiding litigation that
is collateral to the primary purpose of the trial. The rule is
neither arbitrary nor disproportionate in promoting these
ends. Nor does it implicate a sufficiently weighty interest G
of the defendant to raise a constitutional concern under our
precedents."
33. On the issue of reliability, the Court took note of some
Circuit Court decisions which had permitted trial courts to H
454 SUPREME COURT REPORTS (2010) 5 S.C.R.
A consider polygraph results in accordance with the Daubert
factors. However, the following stance was adopted, Id. at p.
312:
"... Although the degree of reliability of polygraph evidence
B may depend upon a variety of identifiable factors, there is
simply no way to know in a particular case whether a
polygraph examiner's conclusion is accurate, because
certain doubts and uncertainties plague even the best
polygraph exams. Individual jurisdictions therefore may
reasonably reach differing conclusions as to whether
c polygraph evidence should be admitted. We cannot say,
then, that presented with such widespread uncertainty, the
President acted arbitrarily or disproportionately in
promulgating a per se rule excluding all polygraph
evidence."
D
34. Since a trial by jury is an essential feature of the
criminal justice system in the U.S.A., concerns were expressed
about preserving the jury's core function of determining the
credibility of testimony. It was observed, Id. at p. 314:
E
" ... Unlike other expert witnesses who testify about factual
matters outside the jurors' knowledge, such as the analysis
of fingerprints, ballistics, or DNA found at a crime scene,
a polygraph expert can supply the jury only with another
opinion, in addition to its own, about whether the witness
F was telling the truth. Jurisdictions, :in promulgating rules of
evidence, may legitimately be concerned about the risk that
juries will give excessive weight to the opinions of a
polygrapher, clothed as they are in scientific expertise and
at times offering, as in respondent's case, a conclusion
G about the ultimate issue in the trial. Such jurisdictions may
legitimately determine that the aura of infallibility attending
polygraph evidence can lead jurors to abandon their duty
to assess credibility and guilt. ... "
H
SELVI & ORS. v. STATE OF KARNATAKA 455
[K.G. BALAKRISHNAN, CJI.]
35. On the issue of encouraging litigation that is collateral A
to the primary purpose of a trial, it was held, Id. at p. 314:
" ... Allowing proffers of polygraph evidence would
inevitably entail assessments of such issues as whether
the test and control questions were appropriate, whether 8
a particular polygraph examiner was qualified and had
properly interpreted the physiological responses, and
whether other factors such as countermeasures employed
by the examinee had distorted the exam results. Such
assessments would be required in each and every case.
It thus offends no constitutional principle for the President C
to conclude that a per se rule excluding all polygraph
evidence is appropriate. Because litigation over the
admissibility of polygraph evidence, is by its very nature
pollateral, a per se rule prohibiting its admission is not an
arbitrary or disproportionate means of avoiding it." 0
36. In the same case, Kennedy, J. filed an opinion which
was joined by four judges. While there was agreement on the
questionable reliability of polygraph results, a different stand
was taken on the issues pertaining to the role of the jury and E
the concerns about collateral litigation. It was observed that the
inherent reliability of the test results is a sufficient ground to
exclude the polygraph test results and expert testimony related
to them. Stevens, J. filed a dissenting opinion in this case.
F
37. We have also come across a decision of the Canadian
Supreme Court in R v Beland, [1987] 36 C.C.C. (3d) 481. In
that case the respondents had been charged with conspiracy
to commit robbery. During their trial, one of their accomplices
had given testimony which directly implicated them. The
respondents contested this testimony and after the completion G
of the evidentiary phase of the trial, they moved an application
to re~open their defen~e while seeking permission for each of
them to undergo a polygraph examination and produce the
results in evidence. The trial judge denied this motion and the
respondents were convicted. However, the appellate court H
456 SUPREME COURT REPORTS [2010] 5 S.C.R.
A allowed their appeal from conviction and granted an order to
re-open the trial and directed that the polygraph results be
considered. On further appeal, the Supreme Court of Canada
held that the results of a polygraph examination are not
admissible as evidence. The majority opinion explained that.the
B admission of polygraph test results would offend some well
established rules of evidence. It examined the 'rule against
oath-helping' which prohibits a party from presenting evidence
solely for the purpose of bolstering the credibility of a witness.
Consideration was also given to the 'rule against admission of
c past or out-of-court statements by a witness' as well as the
restrictions on producing 'character evidence'. The discussion
also concluded that polygraph evidence is inadmissible as
'expert evidence'.
38. With regard to the 'rule against admission of past or
D out-of-court statements by a witness', Mcintyre, J. observed (in
Para. 11):
"... In my view, the rule against admission of consistent out-
of-court statements is soundly based and particularly
E apposite to questions raised in connection with the use of
the polygraph. Polygraph evidence when tendered would
be entirely self-serving and would shed no light on the real
issues before the court. Assuming, as in the case at bar,
that the evidence sought to be adduced would not fall within
F any of the well recognized exceptions to the operation of
the rule - where it is permitted to rebut the allegation of a
recent fabrication or to show physical, mental or emotional
condition - it should be rejected. To do otherwise is to
open the trial process to the time-consuming and confusing
consideration of collateral issues and to deflect the focus
G
. of the proceedings from their fundamental issue of guilt or
innocence. This view is summarized by O.W. Elliott in 'Lie-
Detector Evidence: Lessons from the American
Experience' in Well and Truly Tried (Law Book Co.,
1982), at pp. 129-30:
H
SELVI & ORS. v. STATE OF KARNATAKA 457
[K.G. BALAKRISHNAN, CJI.]
A defendant who attempts to put in the results of a A
test showing this truthfulness on the matters in issue
is bound to fall foul of the rule against self-serving
statements or, as it is sometimes called, the rule
that a party cannot manufacture evidence for
himself, and the falling foul will not be in any mere 8
technical sense. The rule is sometimes applied in
a mechanical unintelligent way to exclude evidence
about which no realistic objection could be raised,
as the leading case, Gillie v. Posho shows; but
striking down defence polygraph evidence on this c
ground would be no mere technical reflex action of
legal obscurantists. The policy behind the doctrine
is a fundamental one, and defence polygraph
evidence usually offends it fundamentally. As some
judges have pointed out, only those defendants who 0
successfully take examinations are likely to want the
results admitted. There is no compulsion to put in
the first test results obtained. A defendant can take
the test many times, if necessary "examiner-
shopping", until he gets a result which suits him.
Even stipulated tests are not free of this taint,
E
because of course his lawyers will advise him to
have several secret trial runs before the prosecution
is approached. If nothing else, the dry runs will
ha~ituate him to the process and to the expected
relevant questions." F
39. On the possibility of using polygraph test results as
character evidence, it was observed (Para. 14):
" ... What is the consequence of this rule in relation to G
polygraph evidence? Where such evidence is sought to be
introduced it is the operator who would be called as the
witness and it is clear, of course, that the purpose of his
evidence would be to bolster the credibility of the accused
and, in effect, to show him to be of good character by H
458 SUPREME COURT REPORTS [201 OJ 5 S.C.R.
A inviting the inference that he did not lie during the test. In
other words, it is evidence not of general reputation but of
a specific incident and its admission would be precluded
under the rule. It would follow, then, that the introduction .of
evidence of the polygraph tests would violate the charactJr
B evidence rule."
40. Mcintyre, J. offered the following conclusions {at Paras.
18, 19 and 20):
"18. In conclusion, it is my opinion, based upon a
c consideration of rules of evidence long established and
applied in our courts, that the polygraph has no place in
the judicial process where it is employed as a tool to
determine or to test the credibility of witnesses. It is
frequently argued that the polygraph represents an
D application of modern scientific knowledge and
experience to the task of determining the veracity of human
utterances. It is said that the courts should welcome this
device and not cling to the imperfect methods of the past
in such an important task. This argument has a superficial
E appeal, but, in my view, it cannot prevail in the face of
realities of court procedures.
19. I would say at once that this view is not based on a
fear of the inaccuracies of the polygraph. On that question
we were not supplied with sufficient evidence to reach a
F conclusion. However, it may be said that even the finding
of a significant percentage of errors in its results would not,
by itself, be sufficient ground to exclude it as an instrument
for use in the courts. Error is inherent in human affairs,
scientific or unscientific. It exists within our established
G court procedures and must always be guarded against.
The compelling reasor., in my view, for the exclusion of the
evidence of polygraph results in judicial proceedings is
two-fold. First, the admission of polygraph evidence would
run counter to the well established rules of evidence which
H have been referred to. Second, while there is no reason
SELVI & ORS. v. STATE OF KARNATAKA 459
[K.G. BALAKRISHNAN, CJI.]
why the rules of evidence should not be modified where A
improvement will result, it is my view that the admission of
polygraph evidence will serve no purpose which is not
already served. It will disrupt proceedings, cause delays,
and lead to numerous complications which will result in no
greater degree of certainty in the process than that which B
already exists.
20. Since litigation replaced trial by combat, the
determination of fact, including .the veracity of parties and
their witnesses, has been the duty of judges or juries upon C
an evaluation of the statements of witnesses. This
approach has led to the development of a body of rules
relating to the giving and reception of evidence and we
have developed methods which have served well and have
gained a wide measure of approval. They have facilitated
the orderly conduct of judicial proceedings and are D
designed to keep the focus of the proceedings on the
principal issue, in a criminal case, the guilt or innocence
of the accused. What would be served by the introduction
of evidence of polygraph readings into the judicial
process? To begin with, it must be remembered that E
however scientific it may be, its use in court depends on
the human intervention of the operator. Whatever results
are recorded by the polygraph instrument, their nature and
significance reach the trier of fact through the mouth of the
operator. Human fallibility is therefore present as before, i=
but now it may be said to be fortified with the mystique of
science .... "
Narcoanalvsis technique
41. This test involves the intravenous administration of a G
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 H
460 SUPREME COURT REPORTS -[2010] 5 S.C.R.
A 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, we have
to decide on the permissibility of resorting to this technique
during a criminal investigation, despite, its'. established uses in
B the medical field. The use of 'truth-serums' and hypnosis is not
a recent development. Earlier versions of the narcoanalysis
technique utilised substances such as scopolamine and sodium
amytal. The following extracts from an article trace the evolution
of this technique, [Cited from: C.W. Muehlberger, 'Interrogation
c 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) at pp. 513-514]: ·
"With the advent of anaesthesia about a century ago, it
was observed that during the induction period and
D particularly during the recovery interval, patients were
prone to make extremely na"ive remarks about p_ersonal
matters, which, in their normal state, would never have
revealed.
E Probably the earliest direct attempt to utilize this
phenomenon in criminal interrogation stemmed from
observations of a mild type of anaesthesia commonly
used in obstetrical practice during the period of about
1903-1915 and known as 'Twilight sleep'. This
F anaesthesia was obtained by hypodermic injection of
$Olutions of morphine and scopolamine (also called
'hyoscine') followed by intermittent chloroform inhalations
if needed. The pain relieving qualities of morphine are well
known. Scopolamine appears to have the added property
of blocking out memories of recent events. By the
G combination of these drugs in suitable dosage, morphine
dulled labor pains without materially interfering with the
muscular contractions of labor, while scopolamine wiped
out subsequent memories of the delivery room ordeal. The
technique was widely used in Europe but soon fell into
H
SELVI & ORS. v. STATE OF KARNATAKA 461
[K.G. BALAKRISHNAN, CJI.]
disrepute among obstetricians of this country, largely due A
to overdosage.
During the period of extensive use of 'twilight sleep' it was
a common experience that women who were under drug
influence, were extremely candid and uninhibited in their 8
statements. They often made remarks which obviously
would never have been uttered when in their normal state.
Dr. Robert E. House, an observant physician practising in
Ferris, Texas, believed that a drug combination which was
so effective in the removal of ordinary restraints and which C
produced such utter candor, might be of value in obtaining
factual information from persons who were thought to be
lying. Dr. House's first paper presented in 1922 suggested
drug administration quite similar to the standard 'twilight
sleep' procedure: an initial dose of % grain of morphine
sulphate together with 1/100 grain of scopolamine D
hydrobromide, followed at 20-30 minute intervals with
smaller (1/200 - 1/400 grain) doses of scopolamine and
periods of light chloroform anaesthesia. Subjects were
questioned as they recovered from the light chloroform
anaesthesia and gave answers which subsequently proved E
to be true. Altogether, Dr. House reported about half-a-
dozen cases, several of which were instrumental in
securing the release of convicts from State prisons, he
also observed that, after returning to their normal state,
these subjects had little or no recollection of what had F
transpired during the period of interrogation. They could
not remember what questions had been asked, nor by
whom; neither could they recall any answers which they had
made."
G
42. 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'. The
author cited above has further observed, Id. at p. 522:
H
462 SUPREME COURT REPORTS· [2010] 5 S.C.R.
A "During World War II, this general technique of delving into
a subject's inner consciousness through the instrumentality
of narcotic drugs was widely used in the treatment of war
neuroses (sometimes called 'Battle shock' or 'shell sh'ock').
Fighting men who had been through terrifically disturbing
B experiences often times developed symptoms of amnesia,
mental withdrawal, negativity, paralyses, or many other
mental, nervous, and physical derangements. In most
instances, these patients refused to talk about the
experienc~s which gave rise to the difficulty, and
c psychiatrists were at a loss to discover the crux'of the
problem. To intelligently counteract such a force, it was first
necessary to identify it. Thus, the use of sedative drugs,
first to analyze the source of disturbance (narcoanalysis)
and later to obtain the proper frame of mind in which the
patient could and would 'talk out' his difficulties, and, as
D
they say 'get them off his chest' - and thus relieve himself
(narco-synthesis or narco-therapy) - was employed with
signal success.
In the narcoanalysis of war neuroses a very light narcosis
E is most desirable. With small 'doses of injectable
barbiturates (sodium amytal or sodium pentothal) or with
light inhalations of nitrous oxide or somnoform, the subject
pours out his pent-up emotions without much prodding by
the interrogator."
F
43. It has been shown that the Central Investigation Agency
(C.l.A.) in the U.S.A. had conducted research on the use of
sodium pentothal for aiding interrogations in intelligence and
counter-terrorism operations, as early as the 1ssq·s [See
G 'Project MKULTRA - The CIA's program of research in
behavioral modification', On file with Schaffer Library of Drug
Policy, Text available from <www.druglibrary.org>]. In recent
years, the debate over the use of 'truth-serums' has been
revived· with demands for their use on persons suspected of
H involvement in terrorist activities. Coming to the test procedure,
SELVI & ORS. v. STATE OF KARNATAKA 463
[K.G. BALAKRISHNAN, CJI.]
when the drug (sodium pentothal) is administered intravenously, A
.the subject ordinarily descends into anaesthesia in four stages,
namely:
(i) Awake stage
(ii) Hypnotic stage B
(iii) Sedative stage
(iv) Anaesthetic stage
44. A relatively lighter dose of sodium pentothal is injected C
to induce the 'hypnotic stage' and the questioning is conducted
during the same. The hypnotic stage is maintained for the
required period by controlling the rate of administration of the
drug. As per the materials submitted before us, the behaviour
exhibited by the subject during this stage has certain specific D
characteristics, namely:-
* It facilitates handling of negative emotional
responses (i.e. guilt, avoidance, aggression,
frustration, non-responsiveness etc.) in a positive E
manner.
* It helps in rapid exploration and identification of
underlying conflicts in the subject's mind and
unresolved feelings about past events.
F
* It induces the subject to divulge information which
would usually not be revealed in conscious
awareness and it is difficult for the person to lie at
this stage
G
* The reversal from this stage occurs immediately
when the administration of the drug is discontinued.
[Refer: Laboratory Procedure Manual - Forensic Narco-
Ana/ysis (Directorate of Forensic Science, Ministry of Home
Affairs, Government of India, New Delhi - 2005); Also see John H
464 SUPREME COURT REPORTS [2010] 5 S.C.R.
A M. Macdonald, 'Truth Serum', 46(2) The Journal of Criminal
Law, Criminology and Police Science 259-263 (Jul.-Aug.
1955)] ,
45. The personnel involved in conducting a 'narcoanalysis'
interview include a forensic psychologist, an anaesthesiologist,
8
a psychiatrist, a general physician or other medical staff and a
language interpreter if needed. Additionally a videographer is
required to create video-recordings of the test for subsequent
scrutiny. In India, this technique has been--·-administered either
c 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 supervises the intravenous administration of-
the drug. It is the forensic psychologist who actually conducts
D 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.
46. This technique can serve several ends. The revelations
E could help investigators to uncover vital evidence or to
corroborate pre-existing testimonies and prosecution theories.
Narcoanalysis tests have also been used to detect 'malingering'
(faking of amnesia). The premise is that during the 'hypnotic
stage' the subject is unable to wilfully suppress the memories
F associated with the relevant facts. Thus, it has been urged that
drug-induced revelations can help to narrow down investigation
efforts, thereby saving public resources. There is of course a
very real possibility that information extracted through such
interviews can lead to the uncovering of independent evidence
G which may be relevant. Hence, we must consider the
implications of such derivative use of the drug-induced
revelations, even if such revelations are not admissible as
evidence. We must also account for the uses of this technique
by persons other than investigators and prosecutors.
Narcoanalysis tests could be requested by defendants who
H
SELVI & ORS. v. STATE OF KARNATAKA 465
[K.G. BALAKRISHNAN, CJI.]
want to prove their innocence. Demands for this test could also A
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. [See generally: George H. B
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)]
47. It is also important to be aware of the limitations of the
'narcoanalysis' technique. It does not have an absolute success C
rate and there is always the possibility that the subject will not
reveal any relevant information. 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. D
. 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
suggestibl~ to questioning. This is especi<IJIY worrying, since E
investigators who are under pressure to deliver result$, 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 F
evaluating the efficacy of the 'narcoanalysis' technique.
48. In an article published in 1951, C. W Muehlberger
(supra.) had described a French case which attracted
controversy in 1948. Raymond Cens, who had been accused G
of being a Nazi collaborator, appeared to have suffered an
apoplectic stroke which also caused memory loss. The French
Court trying the case had authorised a board of psychiatrists
to conduct an examination for ascertaining the defendant's
amnesia. The narcoanalysis technique was used in the course H
466 SUPREME COURT REPORTS [2010) 5 S.C.R.
A of the examination and the defendant did not object to the
same. However, the test results showed that the subject's
memory was not impaired and that he had been faking
amnesia. At the trial, testimony about these findings was
admitted, thereby leading to a conviction. Subsequently,
B Raymond Cens filed a civil suit against the psychiatrists alleging
assault and illegal search. However, it was decided that the
board had used routine psychiatric procedures and since the
actual physical damage to the defendant was nominal, the
psychiatrists were acquitted. At the time, this case created
c quite a stir and the Council of the Paris Bar Association had
passed a resolution against the use of drugs during
interrogation. [Refer C. W Muehlberger (1951) at p. 527; The
Raymond Gens case has a/so been discussed in the
following article:' J.P. Gagnieur, 'The Judicial use of
Psychonarcosis in France', 40(3) Journal of Criminal Law and
0
Criminology 370-380 (Sept.-Oct. 1949))
49. An article published in 1961 [Andre A. Moenssens,
'Narcoanalysis in Law Enforcement', 52(4) The Journal of
Criminal Law, Criminology and Police Science 453-458 (Nov.-
E Dec. 1961)) had surveyed some judicial precedents from the
U.S.A. which dealt with the forensic uses of the narcoanalysis
technique. The first reference is to a decision from the State
of Missouri reported as State v. Hudson, 314 Mo. 599 (1926).
In that -ca~e. the defence lawyer in a prosecution for rape
F attempted to~rely on the expert testimony of a doctor. The doctor
in turn declared that he had questioned the defendant after
injecting a truth-serum and the defendant had denied his guilt
· while in a drug-induced state. The trial court had refused to
admit the doctor's testimony by finding it to be completely
G unreliable from a scientific viewpoint. The appellate court upheld
the finding and made the following observation, Id. at p. 602:
"Testimony of this character- barring the sufficient fact that
it cannot be classified otherwise than a self-serving
declaration - is, in the present state of human knowledge,
H
SELVI & ORS. v. STATE OF KARNATAKA 467
[K.G. BALAKRISHNAN, CJI.]
unworthy of serious consideration. We are not told from A
what well this serum is drawn or in what alembic its alleged
truth compelling powers are distilled. Its origin is as
nebulous as its effect is uncertain ...."
50. In State v. Lindemuth, 56 N.M. 237 (1952) the 8
testimony of a psychiatrist was not admitted when he wanted
to show that the answers given by a defendant while under the
influence of sodium pentothal supported the defendant's plea
of innocence in a murder case. The trial court's refusal to admit
such testimony was endorsed by the appellate court, and it was C
noted, Id. at p. 243:
"Until the use of the drug as a means of procuring the truth
from people under its influence is accorded general
scientific recognition, we are unwilling to enlarge the
already immense field where medical experts, apparently D
equally qualified, express such diametrically opposed
views on the same facts and conditions, to the despair of
the court reporter and the bewilderment of the fact-finder.•
51. However, Andre Moenssens (1961) also took note of E
a case which appeared to endorse an opposing view. In
People v. Jones, 42 Cal. 2d 219 (1954). the trial court overruled
the prosecution's objection to the introduction of a psychiatrist's
testimony on behalf of the defendant. The psychiatrist had
conducted several tests on the defendant which included a
sodium pentothal induced interview. The Court found that this
F
was not sufficient to exclude the psychiatrist's testimony in its
entirety. It was observed that even though the truth of
statements revealed under narcoanalysis remains uncertain, the
results of the same could be clearly distinguished from the
psychiatrist's overall conclusions which were based on the G
results of all the tests considered together.
52. At the federal level, the U.S. Court of Appeals for the
Ninth Circuit dealt with a similar issue in Lindsey v. United
States, 237 F. 2d 893 (9th Circ. 1956). In that case, the trial H
468 SUPREME COURT REPORTS [2010) 5 S.C.R.
A court had admitted a psychiatrist's opinion testimony which was
based on a clinical examination that included psychological
tests and a sodium pentothal induced.interview. The subject of
the interview was a fifteen-year old girl who had been sexually
assaulted,~nd had subsequently testified in a prosecution for
B rape. On crq_~s-examination, the credibility of the victim's
testimony had been doubted and in an attempt to rebut the
same, the prosecution had called on the psychiatrist. On the
basis of the results of the clinical examination, the psychiatrist
offered his professional opinion that the victim had been telling
c the truth· when she had repeated the charges that were
previously made to the police. This testimony was admitted as
a prior consistent statement to rehabilitate the witness but not
considered as substantive evidence. Furthermore, a tape
recording of the psychiatrist's interview with the girl, 11Yhile she
D was under narcosis,' was also considered as evidence. The jury
went on to record a finding of guilt. When the case was brought
in appeal before the Ninth Circuit Court, the conviction was
reversed on the ground that the defendant had been denied the
'due process of law'. It was held that before a prior consistent .
statement made under the influence of a sodium pentothal
E injection could be admitted as evidence, it should-be
scientifically established that the test is absolutely accurate and
reliable in all cases. Although the value of the test in psychiatric
examinations was recognised, it was pointed out that the
reliability of sodium pentothal tests had not been suffi~iently
F · established to warrant admission of its results in evide~ce. It
was stated yiat "Scientific tests reveal that people thus
prompted to speak freely do not always tell the truth". [Cited
from Andre A. Moenssens (1961) at pp. 455-456)
G 53. In Lawrence M. Dugan v. Commonwealth of Kentucky,
333 S.W.2d. 755 (1960), the defendant had been given a truth
serum test by a psychiatrist ernployed by him. The trial court
refused to admit the psychiatrist's testimony which supported
the truthfulness of the defendant's statement. The defendant had
H pleaded innocence by saying that a shooting which had
SELVI & ORS. v. STATE OF KARNATAKA 469
[K.G. BALAKRISHNAN, CJI.]
resulted in the death of another person had been an accident. A
The trial court's decision was affirmed on appeal and is was
reasoned that no court of last resort has recognised the
admissibility of the results of truth serum tests, the principal
ground being that such tests have not attained sufficient
recognition of dependability and reliability. B
54. The U.S. Supreme Court has also disapproved of the
forensic uses of truth-inducing drugs in Townsend v. Sain, 372
US 293 (1963). In that case a heroin addict was arrested on
the suspicion of having committed robbery and murder. While C
in custody he began to show severe withdrawal symptoms,
following which the police officials obtained the services of a
physician. In order to treat these withdrawal symptoms, the
physician injected a combined dosage of 1/8 grain of
Phenobarbital and 1/230 grain of Hyoscine. Hyoscine is the
same as 'Scopolamine' which has been described earlier. This D
dosage appeared to have a calming effect on Townsend and
after the physician's departure he promptly responded to
questioning by the police and eventually made some
confessional statements. The petitioner's statements were duly
recorded by a court reporter. The next day he was taken to the E
office of the prosecutor where he signed the transcriptions of
the statements made by him on the previous day. [The facts of
this case have also been discussed in: Charles E. Sheedy,
'Narcointerrogation of a Criminal Suspect',. 50(2) The Journal
of Criminal Law, Criminology and Police Science 118-123 F
(July-Aug 1959) at pp. 118-119]
55. When the case came up for trial, the counsel for the
petitioner brought a motion to exclude the transcripts of the
statements from the evidence. However, the trial judge denied G
this motion and admitted the court reporter's transcription of the
confessional statements into evidence. Subsequently, a jury
found Townsend to be guilty, thereby leading to his conviction.
When the petitioner made a habeas corpus application before
a Federal District Court, one of the main arguments advanced
H
470 SUPREME COURT REPORTS [2010] 5 S.C.R.
A was that the fact of Scopolamine's character as a truth•serum
had not been brought out at the time of the motion to suppress
the statements or even at the trial before the State Court. The
Federal District Court denied the habeas corpus petition!
without a plenary evidentiary hearing, and this decision was ·
s affirmed by the Court of Appeals. Hence, the matter came
before the U.S. Supreme Court. In an .opinion authored by Earl
Warren, C.J. the Supreme Court held that the Federal District
Court had erred in denying a writ of habeas corpus· without
giving a plenary evidentiary hearing to examine the
c voluntariness of the confessional statements. Both the majority
opinion as well as the dissenting opinion (Stewart, J.) concurred
on the finding that a confession induced by the administration
of drugs is constitutionally inadmissible in a criminal trial. On
this issue, Warren, C.J. observed, 372 US 293 (1963), at pp.
D 307-308:
"Numerous decisions of this Court have established the
standards governinQ\the admissibility of confessions into
evidence. If an individual's 'will was overborne' or if his
confession was not 'the product of a rational intellect and
E a free will', his confession is inadmissible because
coerced. These standards are applicable whether a
confession is the product of physical intimic;lation or ·
psychological pressure and, of course, are equally
applicable to a drug-induced statement. It is difficult to
F a
imagine a situation in which confession would be less
the product of a free intellect, less voluntary, than when
brought about by a drug having the effect of~ 'trut~ serum'.
It is not significant tha't the dryg may. have been
administered and the questionsi asked· by persons
G unfamiliar with hyoscine's,properties as a 'truth serum', if
these properties exist. Any questioning by police officers
which in fact produces a confession which is not the
product of a free intellect renders that confession
inadmissible."
H (internal citations omitted)
SELVI & ORS. v. STATE OF KARNATAKA 471
[K.G. BALAKRISHNAN, CJI.]
56. In United States v. Swanson, 572 F.2d 523 (5th Gire. A
1978), two individuals had been convicted for conspiracy and
extortion through the acts of sending threatening letters. At the
trial stage, one of the defendants testified that he suffered from
amnesia and therefore he could not recall his alleged acts of
telephoning the co-defendant and mailing threatening letters. B
In order to prove such amnesia his counsel sought the
admission of a taped interview between the defendant and a
psychiatrist which had been conducted while the defendant
was under the influence of sodium amytal. The drug-induced
statements supposedly showed that the scheme was a joke or c
a prank. The trial court refused to admit the contents of this
sodium amytal induced interview and the Fifth Circuit Court
upheld this decision. In holding the same, it was also observed,
Id. at p. 528:
" ... Moreover, no drug-induced recall of past events which D
the subject is otherwise unable to recall is any more reliable
than the procedure for inducing recall. Here both
psychiatrists testified that sodium amytal does not ensure
truthful statements. No re-creation or recall, by photograph,
demonstration, drug-stimulated recall, or otherwise, would . E
be admissible with so tenuous a predicate."
57. A decision given by the Ninth Circuit Court in United
States v. Solomon, 753 F. 2d 1522 (9th Gire. 1985), has been
cited by the respondents to support the forensic uses of the F
narcoanalysis technique. However, a perusal of that judgment
shows that neither the actual statements made during
narcoanalysis interviews nor the expert testimony relating to the
same were given any weightage. The facts were that three
individuals, namely Solomon, Wesley and George (a minor at G
the time of the crime) were accused of having committed
robbery and murder by arson. After their arrest, they had
changed their statements about the events relating to the
alleged offences. Subsequently, Wesley gave his consent for
a sodium amytal induced interview and the same was
H
472 SUPREME COURT REPORTS [2010) 5 S.C.R.
A administered by a psychiatrist named Dr. Montgomery. The
same psychiatrist also conducted a sodium amytal interview
with George, at the request of t~e investigators.
58. At the trial stage, George gave testimony which proved
to be incriminatory for Solomon and Wesley. However, the
8
statements made by Wesley during the narcoanalysis interview
were not admitted as evidence and even the expert testimony
about the same was excluded. On appeal, the Ninth Circuit
Court held that there had been no abuse of discretion by the
trial court in considering the evidence before it. Solomon and
C Wesley had contended that the trial court should have exclt:t~ed
the testimony given by George before the trial judge, since the
same was based on the results of the sodium amytal interview
and was hence unreliable. Ttie Court drew a distinction
between the statements made during the narcoanalysis
D interview and the subsequent statements made before the trial
court. It was observed that it was open to the defendants to
show that George's testimony during trial had been bolstered
by the previous revelations made during the narcoanalysis
interview. However, the connection between the drug-induced
E revelations and the testimony given before the trial court could
not be presumed. It was further noted, Id. at p. 1525:
"The only Ninth Circuit case addressing narcoanalysis
excluded a recording of and psychiatric testimony
F supporting an interview conduct~d under the influence of
sodium pentothal, a precursor of sodium amytal. [Lindsey
v. United States, 237 F.2d 893 (9th Cir. 1956) ... ] The
case at bar is distinguishable ~bcause no testimony
concerning the narcoanalysis was offered at trial. Only
George's current recollection of events was presented.
G
In an analogous situation, this circuit has held that the
current recollection~of witnesses whose memories have
been refreshed by hypnosis are admissible, with the fact
of hypnosis relevant to credibility only [United States v.
H Adams, 581 F.2d 193, 198-199 (9th Cir. 1978) ... ], cert.
SELVI & ORS. v. STATE OF KARNATAKA 473
[K.G. BALAKRISHNAN, CJI.]
denied. We have cautioned, however, that "great care A
must be exercised to insure" that statements after hypnosis
are not the product of hypnotic suggestion. Id.
We find no abuse of discretion in the trial court's ruling to
admit the testimony of the witness George. The court's B
order denying Solomon's Motion to Suppress reflects a
careful balancing of reliability against prejudicial dangers:"
59. However, Wesley wanted to introduce expert testimony
by Dr. Montgomery which would explain the effects of sodium
amytal as well as the statements made during his own drug- C
induced interview. The intent was to rehabilitate Wesley's
credibility after the prosecution had impeached it with an earlier
confession. The trial court had held that even though
narcoanalysis was not reliable enough to admit into evidence,
Dr. Montgomery could testify about the statements made to him D
by Wesley, however without an explanation of the
circumstances. On this issue, the Ninth Circuit Court referred
to the Frye standard for the admissibility of scientific evidence.
It was also noted that the trial court had the discretion to draw
the necessary balance between the probative value of the E
evidence and its prejudicial effect. It again took note of the
decision in Lindsey v. United States, 237 F. 2d 893 (1956),
where the admission of a tape recording of a narcoanalysis
interview along with an expert's explanation of the technique
was held to be a prejudicial error. The following conclusion was F
stated, 753 F.2d 1522, at p. 1526:
"Dr. Montgomery testified also that narcoanalysis is useful
as a source of information that can be valuable if verified
through other sources. At one point he testified that it would
elicit an accurate statement of subjective memory, but later G
said that the subject could fabricate memories. He refused
to agree that the subject would be more likely to tell the
truth under narcoanalysis than if not so treated.
Wesley wanted to use the psychiatric testimony to bolster H
474 SUPREME COURT REPORTS [2010] 5 S.C.R.
A the credibility of his trial testimony that George started the
fatal fire. Wesley's statement shortly after the fire was that
he himself set the fire. The probative value of the statement
while under narcoanalysis that George was responsible,
was the drug's tendency to induce truthful statements.
B
Montgomery admitted that narcoanalysis does not reliably
induce truthful statements. The judge's exclusion of the
evidence concerning narcoanalysis was not an abuse of
discretion. The prejudicial effect of an aura of scientific
respectability outweighed the slight probative value of the
c evidence."
60. In State of New Jersey v. Daryl/ Pitts, 56 A.2d 1320
(N.J. 1989), the trial court had refused to admit a part of a
psychiatrist's testimony which was based on the results of the
D defendant's sodium-amytal induced interview. The defendant
had been charged with murder and had sought reliance on the
testimony to show his unstable state of mind at the time of the
homicides. Reliance on the psychiatrist's testimony was
requested during the sentencing phase of the trial in order to
E show a mitigating factor. On appeal, the Supreme Court of New
Jersey upheld the trial court's decision to exclude that part of
the testimony which was derived from the results of the sodium-
amytal interview. Reference was made to the Frye standard
while observing that "in determining the admissibility of
·F evidence derived from scientific procedures, a court must first
ascertain the extent to which the reliability of such procedures
has attained general acceptance within the relevant scientific
community." (Id. at p. 1344) Furthermore, the expert witnesses
who had appeared at the trial had given conflicting accounts
G about the utility of a sodium-amytal induced interview for
ascertaining the mental state of a subject with regard to past
events. It was stated, Id. at p. 1348:
"On the two occasions that this Court has considered the
questions, we,have concluded, based on the then-existing
H
SELVI & ORS. v. STATE OF KARNATAKA 475
[K.G. BALAKRISHNAN, CJI.]
state of scientific knowledge, that testimony derived from A
a sodium-amytal induced interview is inadmissible to prove
the truth of the facts asserted. [See State v. Levitt, 36 N.J.
266, 275 (1961 ) ... ; State v. Sinnott, ... 132 A.2d 298
(1957)) Our rule is consistent with the views expressed by
other courts that have addressed the issue. B
... The expert testimony adduced at the Rule 8 hearing
indicated that the scientific community continues to view
testimony induced by sodium amytal as unreliable to
ascertain truth. Thus, the trial court's ruling excluding Dr. C
Sadoffs testimony in the guilt phase was consistent with
our precedents, with the weight of authority throughout the
country, and also with contemporary scientific knowledge
as reflected by the expert testimony .... "
(internal citations omitted) D
61. Since a person subjected to the narcoanalysis
technique is in a half-conscious state and loses awareness of
time and place, this condition can be compared to that of a
person who is in a hypnotic state. In Horvath v. R, [1979) 44
E
C.C.C. (2d) 385, the Supreme Court of Canada held that
statements made in a hypnotic state were not voluntary and
hence they cannot be admitted as evidence. It was also
decided that if the post-hypnotic statements relate back to the
contents of what was said during the hypnotic state, the
subsequent statements would be inadmissible. In that case a F
17 year old boy suspected for the murder of his mother had
been questioned by a police officer who had training in the use
of hypnotic methods. During the deliberate interruptions in the
interrogation sessions, the boy had fallen into a mild hypnotic
state and had eventually confessed to the commission of the G
murder. He later repeated the admissions before the
investigating officers and signed a confessional statement. The
trial judge had found all of these statements to be inadmissible,
thereby leading to an acquittal. The Court of Appeal had
H
476 SUPREME COURT REPORTS [2010] 5 S.C.R.
A reversed this decision, and hence an appeal was made before
the Supreme Court.
62. Notably, the appellant had refused to undergo a
narcoanalysis inteNiew or a polygraph test. It was also evident
that he had not consented to the hypnosjs. The multiple
8
opinions delivered in the case examined the criterion for
deciding the voluntariness of a statement. Reference was
made to the well-known statement of Lord Summer in Ibrahim
v. R, [1914] A.C. "'599 (P.C.), at p. 609:
C "It has long been established as a positive rule of English
criminal law that no statement made by an accused is
admis~ible in evidence against him unless it is shown by
the prosecution to have been a voluntary statement, in the
sense that it has not been obtained from him either by fear
D of prejudice or hope of advantage exercised or held out
by a person in authority."
63. In Horvath v. R (supra.), the question was whether
statements made under a hypnotic state could be equated with
E those obtained by 'fear of prejudice' or 'hope of advantage'.
The Court ruled that the inquiry into the voluntariness of a
statement should not be literally confined to these expressions.
After examining several precedents, Spence J. held that the
total circumstances surrounding the interrogation should be
considered, with no particular emphasis placed on the hypnosis.
F It was obseNed that in this particular case the interrogation of
the accused had resulted in his complete emotional
disintegration'; and hehce the statements given were
inadmissible. It was also held that the rule in Ibrahim v. R
(supra.) that a statement must be induced by 'fear of prejudice'
G or 'hope of advantage' in order to be considered involuntary
was not a comprehensive test. The word 'voluntary' should be
given its ordihary and natural meaning so that the circumstances
which existed in the present case could also be described as
those which resulted in involuntary statements. ·
H
SELVI & ORS. v. STATE OF KARNATAKA 477
[K.G. BALAKRISHNAN, CJI.]
64. In a concurring opinion, Beetz., J. drew a comparison A
between statements made during hypnosis and those made
under the influence of a sodium-amytal injection. It was
observed, at Para. 91:
"91. Finally, voluntariness is incompatible not only with 8
promises and threats but actual violence. Had Horvath
made a statement while under the influence of an amytal
injection administered without his consent, the statement
would have been inadmissible because of the assault, and
presumably because also of the effect of the injection on C
his mind. There was no physical violence in the case at
bar. There is not even any evidence of bodily contact
between Horvath and Sergeant Proke, but through the use
of an interrogation technique involving certain physical
elements such as a hypnotic quality of voice and manner,
a police officer has gained unconsented access to what D
in a human being is of the utmost privacy, the privacy of
his own mind. As I have already indicated, it is my view
that this was a form of violence or intrusion of a moral or
mental nature, more subtle than visible violence but not less
efficient in the result than an amytal injection administered E
by force."
65. In this regard, the following observations are instructive
for the deciding the questions before us, at Paras. 117,118:
F
"117. It would appear that hypnosis and narcoanalysis are
used on a consensual basis by certain police forces as
well as by the defence, and it has been argued that they
can serve useful purposes.
118. I refrain from commenting on such practices, short of G
noting that even the consensual use of hypnosis and
narcoanalysis for evidentiary purposes may present
problems. Under normal police interrogation, a suspect
has the opportunity to renew or deny his consent to answer
each question, which is no longer the ,case once he is, H
478 SUPREME COURT REPORTS [2010] 5 S.C.R.
A although by consent, in a state of hypnosis or under the
influence of a 'truth serum'."
(internal citation omitted)
66. Our attention has also been drawn to the decision
B reported as Rock v. Arkansas, 483 US 44 (1987), in which the
U.S. Supreme Court ruled that hypnotically-refreshed testimony
could be admitted as evidence. The constitutional basis for
admitting such testimony was the Sixth Amendment which gives
every person a right to present a defence in criminal cases.
C However, the crucial aspect was that the trial court had
admitted the oral testimony given during the trial stage rather
than the actual statements made during the hypnosis session
conducted earlier during the investigation stage. It was found
that such hypnotically-refreshed testimony was the only defence
D available to the defendant in the circumstances. In such
circumstances, it would of course be open to the prosecution
to contest the reliability of the testimony given during the trial
stage by showing that it had been bolstered by the statements
made during hypnosis. It may be recalled that a similar line of
E reasoning had been adopted in United States v. Solomon, 753
F. 2d 1522 (9th Circ. 1985), where for the purpose of
admissibility of testimony, a distinction had been drawn
between the statements made during a narcoanalysis interview
and the oral testimony given during the trial stage which was
F allegedly based on the drug-induced statements. Hence, the
weight of precedents indicates that both the statements made
during narcoanalysis interviews as well as expert testimony
relating to the same have not been given weightage in criminal
trials.
G Brain Electrical Activation Profile (BEAP) test
67. The third technique in question is the 'Brain Electrical
Activation Profile test', also known as the 'P300 Waves test'.
It is a process of detecting whether an individual is familiar with
H certain information by way of measuring activity in the brain that
SELVI & ORS. v. STATE OF KARNATAKA 479
[K.G. BALAKRISHNAN, CJI.]
is triggered by exposure to selected stimuli. This test consists A
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 activities B
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. [Cited from: Andre A Moenssens, 'Brain c
Fingerprinting - Can it be used to detect the innocence of
persons charged with a crime?' 70 University of Missouri at
Kansas City Law Review 891-920 (Summer 2002) at p. 893]
68. By the late 19th century it had been established that
the brain functioned by emitting electrical impulses and the D
technology to measure them was developed in the form of the
electroencephalograph (EEG) which is now commonly used in
the medical field. Brain wave patterns observed through an EEG
scan are fairly crude and may reflect a variety of unrelated brain
activity functions. It was only with the development of computers E
that it became possible to sort out specific wave components
on an EEG and identify the correlation between the waves and
specific stimuli. The P300 wave is one such component that
was discovered by Dr. Samuel Sutton in 1965. It is a specific
event-related brain potential (ERP) which is triggered when F
information relating to a specific event is recognised by the
brain as being significant or surprising.
69. The P300 waves test is conducted by attaching
electrodes to the scalp of the subject, which measure the G
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
H
480 SUPREME COURT REPORTS, [2010] 5 S.C.R.
A 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
B 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
c 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.
[Refer: Laboratory Procedure Manual - Brain Electrical
D Activation Profile (Directorate of Forensic Science, Ministry of
Home Affairs, Government of India, New Delhi - 2005)]
70. The P300 wave test was the precursor to other
neuroscientific techniques such as 'Brain Fingerprinting'
developed by Dr. Lawrence Farwell. The latter technique has.
E 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. Dr. Lawrence Farwell has argued that the P300
F wave component is not an isolated sensory brain effect but it
is part of a longer response that continues to take place after
the initial P300 stimulus has occurred. This extended response
bears a correlation with the cognitive processing that takes
place slightly beyond the P300 wave and continues in the range
G of 300-800' milliseconds after the exposure to the stimulus. This
extended brain wave component has been named as the
MERMER (Mem<:>ry-and-Encoding-Related-Multifaceted-
Electroencephalographic Response) effect. [See generally:
Lawrence A. Farwell, 'Brain Fingerprinting: A new paradigm
H
SELVI & ORS. v. STATE OF KARNATAKA 481
[K.G. BALAKRISHNAN, CJI.]
in criminal investigations and counter-terrorism', (2001) Text A
can be downloaded from <www.brainwavescience.com>]
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 C
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 D
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. [See
generally: Michael S. Pardo, 'Neuroscience evidence, legal
culture and criminal procedure', 33 American Journat of E
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)]
F
72. These neuroscientific techniques could also find
application outside the criminal justice setting. For instance,
Henry T. Greely (2005, Cited below) has argued that
. technologies that may enable a precise identification of the
subject's mental responses to specific stimuli could potentially G
be used for market-research by business concerns for
surveying customer preferences and developing targeted
advertising schemes. They could also be used to judge mental
skills in the educational and employment-related settings since
cognitive responses are often perceived to be linked to H
482 SUPREME COURT REPORTS (2010] 5 S.C.R.
A academic and professional competence. One can foresee the
potential use of this technique to distinguish between students
and employees on the basis of their cognitive responses. There
are several other concerns with the development of these 'mind-
reading' technologies especially those relating to the privacy
B of individuals. (Refer: Henry T. Greely, 'Chapter 17: The social
effects of advances in neuroscience: Legal problems, legal
perspectives', in Judy Illes (ed.), Neuroethics - Defining the
issues in theory, practice and policy (Oxford University Press,
2005) at pp. 245-263]
c 73. 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
D 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
E 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. For
example, in the aftermath of crimes that receive considerable
F media-attention the subject can 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 Gtlso arise if the
G 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.
74. Another significant limitation is that even if the tests
H
SELVI & ORS. v. STATE OF KARNATAKA 483
[K.G. BALAKRISHNAN, CJI.]
demonstrate familiarity with the material probes, there is no A
conclusive guidance about the actual nature of the subject's
involvement in the crime being 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. B
Furthermore, in cases of amnesia or 'memory-hardening' on
part of the subject, the tests 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 c
on an uncertain premise. [For an overview of the limitations of
these neuroscientific techniques, see: 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)]
D
75. We have come across two precedents relatable to the
use of 'Brain Fingerprinting' tests in criminal cases. Since this
.'technique is considered to be an advanced version of the P300
Waves test, it will be instructive to examine these precedents.
In Harrington v. Iowa, 659 N.W.2d 509 (2003), Terry J. E
. Harrington (appellant) had been convicted for murder in 1978
and the same had allegedly been committed in the course of
an attempted robbery. A crucial component of the incriminating
materials was the testimony of his accomplice. However, many
years later it emerged that the accomplice's testimony was F
prompted by an offer of leniency from the investigating police
and doubts were raised about the credibility of other witnesses
as well. Subsequently it was learnt that at the time of the trial,
the police had not shared with the defence some investigative
reports that indicated the possible involvement of another G
individual in the said crime. Harrington had also undergone a
'Brain Fingerprinting' test under the supervision of Dr.
Lawrence Farwell. The test results showed that he had no
memories of the 'probes' relating to the act of murder. Hence,
H
484 SUPREME COURT REPORTS [2010) 5 S..C.R.
A Harrington approached the District Court seeking the vacation
of his conviction and an order for a new trial. Post-conviction
relief was sought on grounds of newly discovered evidence
which included recantation by the prosecution's primary
witness, the past suppression of police investigative reports
B which implicated another suspect and the results of the 'Brain
Fingerprinting' tests. However, the District Court denied this
application for post-conviction relief. This was followed by an
appeal before the Supreme Court of Iowa.
76. The appellate court concluded that Harrington's appeal
C was timely and his action was not time barred. The appellant
was granted relief in light of a 'du~ process' violation, i.e. the
failure on part of the prosecution at thetime of the original trial
to share the investigative reports with the defence. It was
observed that the defendant's right to a fair trial had been
D violated because the prosecution had suppressed evidence
which was favourable to the defendant and clearly material to
the issue of guilt. Hence the case was remanded back to the
District Court. However, the Supreme Court of Iowa gave no
weightage to the results of the 'Brain Fingerprinting' test and
E did not even inquire into their relevance or reliability. In fact it
was stated: "Because the scientific testing evidence is not
necessary to a resolution of this appeal, we give it no further
consideration." [659 N.W.2d 509, iat' p. 516)
' '
F 77. The second decision br9ught to our attention is
Slaughter v. Oklahoma, 105 P. 3d 832 (2005). In that case,
Jimmy Ray Slaughter had been convicted for two murders and
sentenced to death. Subsequently, \e filed an application for
post-conviction relief before the Court of Criminal Appeals of
Oklahoma which attempted to introduce in evidence an affidavit
G and evidentiary materials relating to a 'Brain Fingerprinting'
test. This test had been conducted by Dr. Lawrence Farwell
whose opinion was that the petitioner did not have knowledge
of the 'salient features of the crime scene'. Slaughter also
sought a review of the evidence gathered through DNA testing
H
SELVI & ORS. v. STATE OF KARNATAKA 485
[K.G. BALAKRISHNAN, CJI.]
and challenged the bullet composition analysis pertaining to the A
crime scene. However, the appellate court denied the
application for post-conviction relief as well as the motion for
an evidentiary hearing. With regard to the affidavits based on
the 'Brain Fingerprinting' test, it was held, Id. at p. 834:
B
"10. Dr. Farwell makes certain claims about the Brain
Fingerprinting test that are not supported by anything other
than his bare affidavit. He claims the technique has been
extensively tested, has been presented and analyzed in
numerous peer-review articles in recognized scientific C
publications, has a very low rate of error, has objective
standards to control its operation, and is generally
accepted within the 'relevant scientific community'. These
bare claims, however, without any form of corroboration,
are unconvincing and, more importantly, legally insufficient
to establish Petitioner's post-conviction request for relief. D
Petitioner cites one published opinion, Harrington v. State,
659 N.W.2d 509 (Iowa 2003), in which a brain
fingerprinting test result was raised as error and discussed
by the Iowa Supreme Court ('a novel computer-based
brain testing'). However, while the lower court in Iowa E
appears to have admitted the evidence under non-Daubert
circumstances, the "test did not ultimately factor into the
Iowa Supreme Court's published decision in any way."
Accordingly, the following conclusion was stated, Id. at p. F
836:
"18. Therefore, based upon the evidence presented, we
find the Brain Fingerprinting evidence is procedurally
barred under the Act and our prior cases, as it could have
been raised in Petitioner's direct appeal and, indeed, in G
his first application for post-conviction relief. We further find
a lack of sufficient evidence that would support a
conclusion that Petitioner is factually innocent or that Brain
Fingerprinting, based solely upon the MERMER effect,
H
486 SUPREME COURT REPORTS [2010] 5 S.C.R.
/
A would survive a Daubert analysis."
CONTENTIOUS ISSUES IN THE PRESENT CASE
78. As per the Laboratory Procedure manuals, the
impugned tests are being conducted at the direction of
B jurisdictional courts even without obtaining the consent of the
intended test subjects. In most cases these tests are conducted
conjunctively wherein the veracity of the ·information revealed
through narcoanalysis is subsequently tested through a
polygraph examination or the BEAP test. In some cases the
C investigators could first want to ascertain the capacity of the
subject to deceive (through polygraph examination) or his/her
familiarity with the relevant facts (through BEAP test) before
conducting a narcoanalysis interview. Irrespective of the
sequence in which these techniques are administered, we have.
D to decide on their permissibility in circumstances where any. of
these tests are compulsorily administered, either independently
or conjunctively. '
79. It is plausible that investigators could obtain statements
E from individuals by threatening them with the possibility of
administering either of these tests. The person being·
interrogated could possibly make self-incriminating statements
on account of apprehensions that these techniques will extract
the truth. Such behaviour on part of investigators is more likely
to occur when the person being interrogated is unaware of his/
F her legal rights or is intimidated for any other reason. It is a
settled principle that a statement obtained through coercion,
threat or inducement is involuntary and hence inadmissible as
evidence during trial. However, it is not settled whether a
statement made on account of the apprehension of being
G forcibly subjected to the impugned tests will be involuntary and
hence inadmissible. This aspect merits consideration. It is also
conceivable that an individual who has undergone either of
these tests would be more likely to make self-incriminating
statements when he/she is later confronted with the results. The
H
SELVI & ORS. v. STATE OF KARNATAKA 487
[K.G BALAKRISHNAN, CJI.]
question in that regard is whether the statements that are made A
subsequently should be admissible as evidence. The answers
to these questions rest on the permissibility of subjecting
individuals to these tests without their consent.
I. Whether the involuntary administration of the impugned 8
technigues violates the 'right against self-incrimination'
enumerated in Article 20(3) of the Constitution?
80. Investigators could seek reliance on the impugned tests
to extract information from a person who is suspected or
accused of having committed a crime. Alternatively these tests C
could be conducted on witnesses to aid investigative efforts.
As mentioned earlier, this could serve several objectives,
namely those of gathering clues which could lead to the
discovery of relevant evidence, to assess the credibility of
previous testimony or even to ascertain the mental state of an D
individual. With these uses in mind, we have to decide whether
the compulsory administration of these tests violates the 'right
against self-incrimination' which finds place in Article 20(3) of
the Constitution of India. Along with the 'rule against double-
jeopardy' and the 'rule against retrospective criminalisation' E
enumerated in Article 20, it is one of the fundamental
protections that controls interactions between individuals and
the criminal justice system. Article 20(3) reads as follows:
"No person accused of any offence shall be compelled to F
be a witness against himself."
81. 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 G
the 'privilege against self-incrimination' 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 H
488 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
B 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
c 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.
D 82. 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 case,
(1978) 1 SCC 248. Hence, we must examine the 'right against
self-incrimination' in respect of its relationship with the multiple
E 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
F, 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. In this regard, Article 359(1)
of the Constitution of India reads as follows:-
"359. Suspension of the enforcement of the rights
G conferred by Part Ill during emergencies. - (1) Where a
Proclamation of Emergency is in operation, the President
may by order declare that the right to move any court for
the enforcement of such of the rights conferred by Part Ill
(except Articles 20 and 21) as may be mentioned in the
H
SELVI & ORS. v. STATE OF KARNATAKA 489
[K.G BALAKRISHNAN, CJI.]
order and all proceedings pending in any court for the A
enforcement of the rights so mentioned shall remain
suspended for the period during which the Proclamation
is in force or for such shorter period as may be specified
in the order .... "
B
83. Undoubtedly, Article 20(3) has an exalted status in our
Constitution and questions about its meaning and scope
• deserve thorough scrutiny. In one of the impugned judgments,
· it was. reasoned that all citizens have an obligation to co-
operate with ongoing investigations. For instance reliance has C
been placed on Section 39, CrPC which places a duty on
citizens to inform the nearest magistrate or police officer if they
are aware of the commission of, or of the intention of any other
person to commit the crimes enumerated in the section.
Attention has also been drawn to the language of Section
156(1), CrPC which states that a police officer in charge of a D
police station is empowered to investigate cognizable offences
even without an order from the jurisdictional magistrate.
Likewise, our attention was drawn to Section 161(1), CrPC
which empowers the police officer investigating a case to orally
examine any person who is supposed to be acquainted with E
the facts and circumstances of the case. While the overall intent
of these provisions is to ensure the citizens' cooperation during
the course of investigation, they cannot override the
constitutional protections given to accused persons. The
scheme of the CrPC itself acknowledges this hierarchy between F
constitutional and statutory provisions in this regard. For
instance, SeGtion 161 (2), CrPC prescribes that when a person
is being examined by a police officer, he is not bound to answer
such questions, the answers of which would have a tendency
to expose him to a criminal charge or a penalty or forfeiture. G
84. 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
H
490 SUPREME COURT REPORTS [2010]'S S.C.R.
A 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
B 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
c against himself or any person charged together with him at the
trial. It is evident that Section 161(2), CrPC enables a person
to choose silence in response to questioning by a police officer
during the stage of investigation, and as per the scheme of
Section 313(3) and Proviso (b) to Section 315(1) of the same
code, adverse inferences cannot be drawn on account of the
0
accused person's sil.ence during the trial stage.
Historical origins of the 'right against self-incrimination'
85. The right of refusal to answer questions that may
E 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,
F 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
G offences like treason and sedition. Under an ex offiCio oath the
defendant was required to answer all questions posed by the
judges arid 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'.
H
SELVI & ORS. v. STATE OF KARNATAKA 491
[K.G. BALAKRISHNAN, CJI.]
86. In an academic commentary, Leonard Levy (1969) had A
pointed out that the doctrinal origins of the right against self-
incrimination could be traced back to the Latin maxim 'Nemo
tenetur seipsum prodere' (i.e. no one is bound to accuse
himself) and the evolution of the concept of 'due process of
law' enumerated in the Magna Carta. [Refer: Leonard Levy, 8
The right against self-incrimination: history and judicial history',
84(1) Political Science Quarterly 1-29 (March 1969)] The use
of the ex officio oath by the ecclesiastical courts in medieval
England had come under criticism from time to time, and the
most prominent cause for discontentment came with its use in c
the Star Chamber and the High Commissions. Most
scholarship has focussed on the sedition trial of John Lilburne
(a vocal critic of Charles I, the then monarch) in 1637, when he
refused to answer questions put to him on the ground that he
had not been informed of the contents of the written complaint
0
against him. John Lilburne went on to vehemently oppose the
use of ex.-officio oaths, and the Parliament of the time relented
by abolishing the Star Chamber and the High Commission in
1641. This event is regarded as an important landmark in the
evolution of the 'right to silence'.
E
87. However. in 1648 a special committee of Parliament
conducted an investigation into the loyalty of members whose
opinions were offensive to the army leaders. The committee's
inquisitional conduct and its requirement that witnesses take
an oath to tell the truth provoked opponents to condemn what F
they regarded as a revival of Star Chamber tactics. John
Lilburne was once again tried for treason before this committee,
this time--for his outspoken criticism of the leaders who had
prevailed in the struggle between the supporters of the monarch
and those of the Parliament in the English civil war. John G
Lilburne invoked the spirit of the Magna Carta as well as the
1628 Petition of Right to argue that even after common-law
indictment and without oath, he.did not have to answer
questions against or concerning himself. He drew a connection
between the right against self-incrimination amt. .1heiJtra'rantee H
492 SUPREME COURT REPORTS (2010) 5 S.C.R.
A of a fair trial by invoking the idea of 'due process of law' which
had been stated in the Magna Carta.
88. John H. Langbein (1994) has offered more historical
insights into the emergence of the 'right to silence'. (John H.
B Langbein, 'The historical origins of the privilege against self-
incrimination at common law', 92(5) Michigan Law Review
1047-1085 (March 1994)] He draws attention to the fact that
even though ex officio oaths were abolished in 1641, the
practice of requiring defendants to present their own defence
C in criminal proceedings continued for a long time thereafter. The
Star Chamber and the High Commissions had mostly tried
cases involving religious, non-conformists and political
dissenters, thereby attracting considerable criticism. Even after
their abolition, the defendants in criminal courts did not have
the right to be represented by a lawyer ('right to counsel'),or
D the right to request the presence of defence witnesses ('right
of compulsory process'). Hence, defendants were more or-less
compelled to testify on their own behalf. Even though the threat
of physical torture on account of remaining silent had oeen
removed, the defendant would face a high risk of conviction if_
E he/she did not respond to the charges by answering the
material questions posed by the judge and the prosecutor. In
presenting his/her own defence during the trial, there was a
strong likelihood that the contents of such testimony could
strengthen the case of the prosecution and lead to conviction.
F With the passage of time, the right of a criminal defendant to
be represented by a lawyer eventually emerged in the common
law tradition. A watershed in this regard was the Treason Act
of 1696 which provided for a 'right to counsel' as well as
'compulsory process' in cases involving offences such as
G treason. Gradually, the right to be defended by a counsel was
extended to more offences, but the role of the counsel was
limited in the early years. For instance defence lawyers could
only help their clients with questions of law and could not make
submissions related to the facts.
H
SELVI & ORS. v. STATE OF KARNATAKA 493
[K.G. BALAKRISHNAN, CJI.]
89. :Y-he practice of requiring the accused persons to A
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 B
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 c
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 0
placed on the defendant himself. In the present day, lhe
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 E
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 the 'right to counsel' that the
accused's 'right to silence' became meaningful. With the F
consolidation of the role of defence lawyers in criminal trials, a
clear segregation emerged between the testimonial function
performed by the accused and the defensive function
performed by the lawyer. This segregation between the
testimonial and defensive functions is now accepted as an G
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, H
494 SUPREME COURT REPORTS [2010) 5 S.C.R.
A 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.
B 90. The judgment in Nandini Satpathy v. P.L. Dani, (1978)
2 sec 424, at pp. 438-439, referred td the following extract
from a decision of the US Supreme Court in Brown v. Walker,
161 US 591 (1896), which had later been approvingly cited by
Warren, C.J. in Miranda v. Arizona, 384 US 436 (1966):
c "The maxim nemo tenetur seipsum accusare had its origin
in a protest against the inquisitorial and manifestly unjust
methods of interrogating accused persons, which have
long obtained in the continental system, and, until the
expulsion of the Stuarts from the British throne in 1688, and
D the erection of additional barriers for the protection of the
people against the exercise of arbitrary power, were not
uncommon even in England .. While the admissions or
confessions of the prisoner, when voluntarily and freely
made, have always ranked high in the scale· of
E - incriminating evidence, if an accused person be asked to
explain his apparent connection with a crime under
investigation, the case with which the questions put to him
may assume an inquisitorial character, the temptation to
press the witness unduly, to browbeat him if he be timid
F or reluctant, to push him info a corner, and to entrap him
into fatal contradictions, which is so painfully evident in
many of the earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan minister,
made the system so odious as to give rise to a demand
for its total abolition. The change in the English criminal
G
procedure in that particular seems to be founded upon no
statute and no judicial opinion, but upon a general and
silent acquiescence of the courts in a popular demand. But,
however adopted, it has become firmly embedded in
English, as well as in American jurisprudence. So deeply
H
SELVI & ORS. v. STATE OF KARNATAKA 495
[K.G. BALAKRISHNAN, CJI.]
did the inequities of the ancient system impress themselves A
upon the minds of the American colonists that the State,
with one accord, made a denial of the right to question an
accused person a part of their fundamental law, so that a
maxim, which in England was a mere rule of evidence,
became clothed in this country with the impregnability of B
a constitutional enactment."
Underlying rationale of the right against self-incrimination
91. As mentioned earlier, 'the right against self-
incrimination' is now viewed as an essential safeguard in C
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 ac('.used of a crime may have been D
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 E
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. F
Even during the investigative stage, false statements are .likely
to cause delays and obstructions in the investigation efforts.
92. 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 G
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
H
496 SUPREME COURT REPORTS [2010] 5 S.C.R.
A .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 1
'third-degree methods' that could be used to elicit information.
It serves as a check on police behaviour during the course of
B investigation. The exclusion of compelled testimony is important,
otherwise the investigators will be more inclined to extract
information through such compulsion as a matter of course. The
frequent reliance on such 'short-cuts' will compromise the
diligence required for conducting meaningful investigations.
c During the trial stage, the onus is on the prosecution to prove
the charges levelled against the defendant and the 'right against
self-incrimination' is a vital protection to ensure thaf the
prosecution discharges the said onus.
93. These concerns have been recognised in Indian as well
D as foreign judicial precedents. For instance, Das Gupta, J. had
observed in State of Bombay v. Kathi Kalu Oghad, [1962] 3
SCR 10, at pp. 43-44:
"... for long it has been generally agreed among those who
E have devoted serious thought to these problems that few
things could be more harmful to the detection, of crime or
conviction of the real culprit, few things more likely to
hamper the disclosure of truth than to allow investigators
or prosecutors to slide down the easy path of producing
F by compulsion, evidence, whether oral or documentary,
from an accused person. It has been felt that the existence
of such an easy way would terid to dissuade persons in
charge of investigation or prosecution from conducting
diligent search for reliable independent evidence and from
sifting of available materials with the care necessary for
G
ascertainment of truth. If it is permissible in law to obtain
evidence from the accused person by compulsion, why
tread the hard path of laborious investigation and
prolonged examination of other men, materials and
documents? It has been well said that an abolition of this
H
SELVI & ORS. v. STATE OF KARNATAKA 497
[K.G. BALAKRISHNAN, CJI.]
privilege would be an incentive for those in charge of A
enforcement of law 'to sit comfortably in the shade rubbing
red pepper into a poor devils' eyes rather than to go about
in the sun hunting up evidence.' [Sir James Fitzjames
Stephen, History of Criminal Law, p. 442] N.o less serious
is the danger that some accused persons at least, may be B
induced to furnish evidence against themselves which is
totally false - out of sheer despair and an anxiety to avoid
an unpleasant present. Of all these dangers the
Constitution makers were clearly well aware and it was to
avoid them that Article 20(3) was put in the Constitution." c
94. The rationale behind the Fifth Amendment in the U.S.
Constitution was eloquently explained by Goldberg. J. in
Murphy v. Waterfront Commission, 378 US 52 (1964), at p.
55:
D
"It reflects many of our fundamental values and most noble
aspirations: our unwillingness to subject those suspected
of crime to the cruel trilemma of self-accusation, perjury or
contempt; our preference for an accusatorial rather than
an inquisitorial system of criminal justice; our fear that self- E
incriminating statements will be elicited by inhumane
treatment and abuses; our sense of fair play which dictates
a fair state-individual balance by requiring the government
to leave the individual alone until good cause is shown for
disturbing him and by requiring the government in its F
contests with the individual to shoulder the entire load; our
respect for the inviolability of the human personality and
of the right of each individual to a private enclave where
he may lead a private life; our distrust of self-deprecatory
statements; and our realization that the privilege, while G
sometimes a shelter to the guilty, is often a protection to
the innocent."
A similar view was articulated by Lord Hailsham of St.
Marylebone in Wong Kam-ming v. R, [1979] 1 All ER 939, at
p. 946: H
498 SUPREME COURT REPORTS [2010] 5 S.C.R.
" ... any civilised system of criminal jurisprudence must
accord to the judiciary some means of excluding
confessions or admissions obtained by improper
methods. This is not only because of the potential
unreliability of such statements, but also, and perhaps
B mainly, because in a civilised society it is vital that persons
in custody or charged with offences should not be
subjected to ill treatment or improper pressure in order to
extract confessions. It is therefore of very great importance
that the courts should continue ito insist that before extra-
c judicial statements can be admitted in evidence the
prosecution must be made to prove beyond reasonable
doubt that the statement 'was not obtained in a manner
which should be reprobated and was therefore in the truest
sense voluntary."
D 95. V.R. Krishna Iyer, J. echoed similar concerns in
Nandini Satpathy's case, (1978) 2 sec 424, at p. 442:
• ... And Article 20(3) is a human article, a guarantee of
dignity and integrity and of inviolability of the person and
E refusal to convert an adversary system into an inquisitorial
scheme in the antagonistic ante-chamber of a police
station. And in the long run, that investigation is best which
uses stratagems least; that policeman deserves respect
who gives his fists rest and his; wits restlessness. The
F police are part of us and must rise in people's esteem
through firm and friendly, not foul and sneaky strategy."
96. In spite of the constitutionally entrenched status of the
right against self-incrimination, there have been some criticisms
of the policy underlying the same. John Wigmore (1960) argued
G against a broad view of the privilege which extended the same
to the investigative stage. [Refer: 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)] He has
H
SELVI & ORS. v. STATE ~F KARNATAKA 499
[K.G. BALAKRISHNAN, CJI.]
asserted that the doctrinal origins of the 'rule against involuntary A
confessions' in evidence law and those of the 'right to self-
incrimination' were entirely different and catered to different
objectives. In the learned author's opinion, the 'rule against
involuntary confessions' evolved on account of the distrust of
statements made in custody. The objective was to prevent these B
involuntary statements from being considered as evidence
during trial but there was no prohibition against relying on
statements made involuntarily during investigation. Wigmore
argued that the privilege against self-incrimination should be
viewed as a right that was confined to the trial stage, since the c
judge can intervene to prevent an accused from revealing
incriminating information at that stage, while similar oversight
is not always possible during the pre-trial stage.
97. In recent years, scholars such as David Dolinko (1986),
Akhil Reed Amar (1997) and Mike Redmayne (2007) among D
others have encapsulated the objections to the scope of this
right. [See: 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 E
Principles (New Haven: Yale University Press, 1997) at pp.
65-70; Mike Redmayne, 'Re-thinking the Privilege against Self-
incrimination', 27 Oxford Journal of Legal Studies 209-2'32
(Summer 2007)] It is argued that in aiming to create a fair
state-individual balance in criminal cases, the task of the F
investigators and prosecutors is made unduly difficult by
allowing the accused to remain silent. If the overall intent of the
criminal justice system is to ensure public safety through
expediency in investigations and prosecutions, it is urged that
the privilege against self-incrimination protects the guilty at the G
cost of such utilitarian objectives. Another criticism is that
adopting a broad view of this right does not deter improper
practices during investigation and it instead encourages
investigators to make false representations to courts about the
voluntary or involuntary nature of custodial statements. It is H
500 SUPREME COURT REPORTS [2010] 5 S.CR.
A reasoned that when investigators are under pressure to deliver
results there is an inadvertent tendency to rely on methods
involving coercion, threats; inducement or deception in spite of
the legal prohibitions against them. Questions have also been
raised about conceptual inconsistencies in the way that courts
B have expanded the scope of this right. One such objection is
that if the legal system is obliged to respect the mental privacy
of individuals, then why is there no prohibition against
compelled testimony in· civil cases which could expose parties
to adverse consequences. Furthermore, questions have also
c been asked about th~ scope of the privilege being restricted
to testimonial acts while excluding physical evidence which can
be extracted through compulsion.
'.
98. In response to John Wigmore's thesis about the
separate foundation~ of the 'rule against involuntary
D confessions', we must recognis'e the infusion of constitutional
values into all branches of law, including procedural areas such
as the law of evidence. While the above-mentioned criticisms
have been made in academic commentaries, we must defer
to the judicial precedents that control the scope of Article 20(3).
E For instance, the interrelationship between the privilege against
self-incrimination and the requirements of observing due
process of law were emphasized by William Douglas, J. in
Rochin v. California, 342 US 166 (1951), at p. 178:
F "As an original matter it might be debatable whether the
provision in the Fifth Amendment that no person 'shall be
compelled in any criminal case to be a witness against
himself serves the ends of justice. Not all civilized legal
procedures recognize it. But the choice was ma.de by the
framers, a choice which sets a standard for leg~I trials in
G this country. The Framers made, it a standard of due
process for prosecutions by the Federal Government. If it
is a requirement of due process for a trial in the federal
courthouse, it is impossible for me to say it is not a
requirement of due process for a trial in the state
H
SELVI & ORS. v. STATE OF KARNATAKA 501
[K.G. BALAKRISHNAN, CJI.]
courthouse." A
1-A. Whether the investigative use of the impugned
techniques creates a likelihood of incrimination for the
subject?
99. The respondents have submitted that the compulsory 8
administration of the impugned tests will only be sought to boost
investigation efforts and that the test results by themselves will
not be admissible as evidence. The next prong of this position
is that if the test results enable the investigators to discover
independent materials that are relevant to the case, such C
subsequently discovered.materials should be admissible during
trial. In order to evaluate this position, we must answer the
following questions:
* Firstly, we should clarify the scope of the 'right D
against self-incrimination' - i.e. whether it should
be construed as a broad protection that extends to
the investigation stage or should it be viewed as a
narrower right confined to the trial stage?
* Secondly, we must examine the ambit of the words E
'accused of any offence' in Article 20(3) - i.e.
whether the protection is available only to persons
who are formally accused in criminal cases, or does
it extend to include suspects and witnesses as well
as those who apprehend incrimination in cases F
other than the one being investigated?
* Thirdly, we must evaluate the evidentiary value of
independent materials that are subsequently
discovered with the help of the test results. In light G
of the 'theory of confirmation by subsequent facts'
incorporated in Section 27 of the Indian Evidence
Act, 1872 we need. to examine the compatibility
between this section and Article 20(3). Of special
concern are situations when persons could be
H
502 SUPREME COURT REPORTS [2010] 5 S.C.R.
A compelled to reveal information which leads to the
discovery of independent materials. To answer this
question, we must clarify what constitutes
'incrimination' for the purpose of invoking Article
20(3).
B
Applicability of Article 20(3) to the stage of investigation
100. The question of whether Article 20(3) should be
narrowly construed as a trial right or a broad protection that
extends to the stage of investigation has been conclusively
C answered by our Courts. In M.P. Sharma v. Satish Chandra,
[1954] SCR 1077, it was held by Jagannadhadas, J. at pp.
1087-1088:
"Broadly stated, the guarantee in Article 20(3) is against
D 'testimonial compulsion'. It is suggested that this is
confined to the oral evidence of a person standing his trial
for an offence when called to the witness-stand. We can
see no reason to confine the content of the constitutional
guarantee to this barely literal import. So to limit it would
be to rob the guarantee of its substantial purpose and to
E
miss the substance for the sound as stated in certain
American decisions. . .. "
"Indeed, every positive volitional act which furnished
evidence is testimony, and testimonial compulsion
F connotes coercion which procures the positive volitional
evidentiary acts of the person, as opposed to the negative
attitude of silence or submission on his part. Nor is there
any reason to think that the protection in respect of the
evidence so procured is confined to what transpires at the
G trial in the court room. The phrase used in Article 20(3) is
'to be a witness' and not to 'appear as a witness': It follows
that the protection afforded to an cccused in so far as it is
related to the phrase 'to be a witness' is not merely in
respect of testimonial compulsion in the court room but
H may well extend to compelled testimony previously obtained
SELVI & ORS. v. STATE OF KARNATAKA 503
[K.G BALAKRISHNAN, CJI.]
from him. It is available therefore to a person against whom A
a "formal accusation relating to the commission of an
offence has been levelled which in the normal course may
result in prosecution. Whether it is availat;>le to other
persons in other situations does not call for decision in this
case." B
· 101. These observations were cited with approval by B. P.
Sinha, C.J. in State of Bombay v. Kathi Ka/u Oghad & Others,
[1962) 3 SCR 10, at pp. 26-28. In the minority opinion, Das
Gupta, J. affirmed the same position, Id. at p. 40:
c
" ... If the protection was intended to be cc!>nfined to being
a witness in Court then really it would have been an idle
protection. It would be completely defeated by compelling
a person to give all the evidence outside court and then,
having what he was so compelled to do proved in court o
through other witnesses. An interpretation which s9.
completely defeats the constitutional guarantee cannot, of
course, be correct. The contention that the protection
afforded by Article 20(3) is limited to the stage of trial must
therefore be rejected." E
102. The broader view of Article 20(3) was consolidated
in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424:
" ... Any giving of evidence, any furnishing of information,
if likely to have an incriminating impact, answers the F
description of being a witness.against oneself. Not being
limited to the forensic stage by express words in Article
20(3), we have to construe the expression to apply to every
stage where furnishing of information and collection of
materials takes place. That is to say, even the investigation G
at the police level is embraced by Article 20(3). This is
precisely what Section 161 (2) means. That sub-section
relates to oral examination by police officers and grants
immunity at that stage. Briefly, the Constitution and the
Code aro coterminus in the protective area. While the code H
504 SUPREME COURT REPORTS [2010) 5 S.C.R.
A may be changed, the Constitution is more enduring.
Therefore, we have to base our conclusion not merely upon
Section 161 (2) but on the more fundamental protection,
although equal in ambit, contained in Article 20(3)."
(at p. 435)
B
"If the police can interrogate to the point of self-accusation,
the subsequent exclusion of that evidence at the trial hardly
helps because the harm has already been done. The
police will prove through other evidence what they have
c procured through forced confession. So it is that the
foresight of the framers has pre-empted self-incrimination
at the incipient stages by not expressly restricting it to the
trial stage in court. True, compelled testimony previously
obtained is excluded. But the preventive blow falls also on
D pre-court testimonial compulsion. The condition, as the
decisions now go, is that the person compelled must be
an accused. Both precedent procurement and subsequent
exhibition of self-incriminating testimony are obviated by
intelligent constitutional anticipation." (at p. 449)
E 103. In upholding this broad view of Article 20(3), V.R.
Krishna Iyer, J. relied heavily on the decision of the US
Supreme Court in Ernesto Miranda v. Arizona, 384 US 436
(1966). The majority opinion (by Earl Warren, C.J.) laid down
that custodial statements could not be used as evidence unless
F the police officers had administered warnings about the
accused's right to remain silent. The decision also recognised
the right to consult a lawyer prior to and during the course of
custodial interrogations. The practice promoted by this case is
that it is only after a person has 'knowingly and intelligently'
G waived of these rights after receiving a warning that the
statements made thereafter can be admitted as evidence. The
safeguards were prescribed in the following manner, Id. at pp.
444-445:
" ... the prosecution may not use statements, whether
H
SELVI & ORS. v. STATE OF KARNATAKA 505
[K.G BALAKRISHNAN, CJI.]
exculpatory or inculpatory, stemming from custodial A
interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the
privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into B
custody or otherwise deprived of his freedom of action in
any significant way. [ ... ]As for the procedural safeguards
to be employed, unless other fully effective means are
devised to inform accused persons of their right of silence
and to assure a continuous opportunity to exercise it, the c
following measures are required. Prior to any questioning,
the person must be warned that he has a right to remain
silent, that any statement he does make may be used as
evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed. The D
defendant may waive effectuation of these rights, provided
the waiver is made voluntarily, knowingly and intelligently.
If, however, he indicates in any manner and at any stage
of the process that he wishes to consult with an attorney
before speaking there can be no questioning. Likewise, if E
the individual is alone and indicates in any manner that he
does not wish to be interrogated, the police may not
question him. The mere fact that he may have answered
some questions or volunteered some statements on his
own does not deprive him of the right to refrain from
answering any further inquiries until he has consulted with F
an attorney and thereafter consents to be questioned."
104. These safeguards were designed to mitigate the
disadvantages faced by a suspect in a custodial environment.
This was done in recognition of the fact that methods involving G
deception and psychological pressure were routinely used and
often encouraged in police interrogations. Emphasis was
placed on the ability of the person being questioned to fully
comprehend and understand the content of the stipulated
warning. It was held, Id. at pp. 457-458: H
506 SUPREME COURT REPORTS [2010] 5 S.C.R.
A "In these cases, we might not find the defendant's
statements to have been involuntary in traditional terms. Our
concern for adequate safeguards to protect the precious
Fifth Amendment right is, of course, not lessened in the
slightest. In each of the cases, the defendant was thrust
B into an unfamiliar atmosphere and run through menacing
police interrogation procedures .... It is obvious that such
an interrogation environment is created for no purpose
other than to subjugate the individual to the will of his
examiner. This atmosphere carried its own badge of
c intimidation. To be sure, this is not physical intimidation,
but it is equally destructive of human dignity. [Professor
Sutherland, 'Crime and Confessions', 79 ·Harvard Law
Review 21, 37 (1965)] The current practice of
incommunicado interrogation is at odds with one of our
. Nation's most cherished principles - that the individual may
D
not be compelled to incriminate himself. Unless adequate
protective devices are employed to dispel the compulsion
inherent in custodial surroundings, n~tatement obtained
from the defendant can truly be the product of his free
choice."
E
105. The opinion also explained the significance of having
a counsel present during a custodial interrogation. It was noted,
Id. at pp. 469-470:
F 'The circumstances surrounding in-custody interrogation
can operate very quickly to overbear the will of one merely
made aware of his privilege by his interrogators.
Therefore, the right to have counsel present at the
interrogation is indispensable to the protection of the Fifth
Amendmeht privilege under the system we delineate
G
today. Our aim is to assure that the individual's right to
choose between silence and speech remains unfettered
throughout the interrogation process. A once-stated
warning, delivered by those who will conduct the
interrogation, cannot itself suffice to that end among those
H
SELVI & ORS. v. STATE OF KARNATAKA 507
[K.G. BALAKRISHNAN, CJI.]
who most require knowledge of their rights. A mere warning A
given by the interrogators is not alone sufficient to
accomplish that end. Prosecutors themselves claim that
the admonishment of the right to remain silent without more
'will benefit only the recidivist and the professional.' [Brief
for the National District Attorneys Association as amicus B
quriae, p. 14] Even preliminary advice given to the
accused by his own attorney can be swiftly overcome by
the secret interrogation process. [Cited from Escobedo v.
State of Illinois, 378 U.S. 478, 485 ... ]Thus, the need for
counsel to protect the Fifth Amendment privilege c
comprehends not merely a right to consult with counsel
prior to questioning, but also to have counsel present during
any questioning if the defendant so desires."
106. The majority decision in Miranda (supra.) was not a
sudden development in U.S. constitutional law. The scope of D
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 E
as the Fourth Amendment's protection against 'unreasonable
search and seizure'. While it is not necessary for us to survey
these decisions, it will suffice to say that after Miranda (supra.),
administering a warning about a person's right to silence during
custodial interrogations as well as obtaining a voluntary waiver F
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 presumption of compulsion with
regard to the custodial statements, thereby rendering them
inadmissible as evidence. The position in India is different G
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.
H
508 SUPREME COURT REPORTS [2010) 5 S.C.R.
A Who can invoke the protection of Article 20(3)?
107. The decision in Nandini Satpathy's case, (supra.)
also touched on the question of who is an 'accused' for the
purpose of invoking Article 20(3). This question had been left
open in M.P. Sharma's case (supra.). Subsequently, it was
8
addressed in Kathi Kalu Oghad (supra.), at p. 37:
"To bring the statement in question within the prohibition
of Article 20(3), the person accused must have stood in
the character of an accused person at the time he made
C the statement. It is not enough that he should become an
accused, anytime after the statement has been made."
108. While there is a requirement of formal accusation for
a person to invoke Article 20(3) it must be noted that the
D protection contemplated by Section 161 (2), CrPC is wider.
Section 161 (2) read with 161 (1) protects 'any person supposed
to be acquainted with the facts and circumstances of the case'
in the course of examination by the police. The language of this
provision is as follows:
E 161. Examination of witnesses by police.
(1) Any police officer making an investigation under this
Chapter, or any police officer not below such rank as the
State Government may, by general or special order,
F prescribe in this behalf, acting on the requisition of such
officer, may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions
relating to such case put to him by such officer, other than
G questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or
forfeiture.
(3) The police officer may reduce into writing any statement
H made to him in the course of an examination under this
SELVI & ORS. v. STATE OF KARNATAKA 509
[K.G. BALAKRISHNAN, CJI.]
section; and if he does so, he shall make a separate and A
true record of the statement of each such person whose
statement he records.
109. Therefore the 'right against self-incrimination' protects
persons who have been formally accused as well as those who 8
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. Krishna
Iyer, J. clarified this position, (1978) 2 SCC 424, at p. 435:
c
"The learned Advocate General, influenced by American
decisions rightly agreed that in expression Section 161 (2)
of the Code might cover not merely accusations already
registered in police stations but those which are likely to
be the basis for exposing a person to a criminal charge. D
Indeed, this wider construction, if applicable to Article
20(3), approximates the constitutional clause to the explicit
statement of the prohibition in Section 161 (2). This Jattef
provision meaningfully uses the expression 'expose
himself to a criminal charge'. Obviously, these words E
mean,. not only cases where the person is aiready exposed
to a criminal charge but also instances which will
imminently expose him to criminal charges."
It was further observed, Id. at pp. 451-452 (Para. 50):
F
" ... 'To be a witness against oneself is not confined to the
particular offence regarding which the questioning is made
but extends to other offences about which the accused has
reasonable apprehension of implication from his answer.
This conclusion also flows from 'tendency to be exposed G
to a criminal charge'. A 'criminal charge' covers any
criminal charge then under investigation or trial or which
imminently threatens the accused."
110. Even though Section 161 (2) of the CrPC casts a wide
H
510 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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 applical:)ility of this
protection to witnesses during the trial stage. The latter provision
provides that witnesses cannot refuse to answer questions
B 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 expose the witness to arrest
or prosecution, except for a prosecution for giving false
evidence. Therefore, the protection accorded to witnesses at
c 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
0
criminal trial. Section 132 of the Evidence Act reads:-
"132. Witness not excused fro)Jl answering on ground
that answer will criminate. - A witness shall not be
excused from answering any question as to any matter
E relevant to the matter in issue in any suit or in any civil or
criminal proceeding, upon the ground that the answer to
such question will crimjnate, or may tend directly or
\ '
indirectly to criminate, such witness, or that it will expose,
or tend directly or indirect1y't6 expose, such witness to a
F penalty or forfeiture of any kind.
\
Proviso. - Provided that no.:such answer, which a witness
shall be compelled to give, shall subject him to any arrest
or prosecution, or be proved against him in any criminal
proceeding, except a prosecution for giving false evidence
G
by such answer."
111. 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
H are examined during proceedings that are not governed by the
SELVI & ORS. v. STATE OF KARNATAKA 511
[K.G. BALAKRISHNAN, CJI.)
code. There is a distinction between proceedings of a purely A
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 B
proceedings. In administrative and quasi-criminal proceedings,
the protection of Article 20(3) becomes available only after a
person has been formally accused of committing an offence.
For instance in Raja Narayan/al Bansila/ v. Maneck Phiroz
Mistry, [1961] 1 SCR 417, the contention related to the c
admissibility of a statement made before an inspector who was
appointed under the Companies Act, 1923 to investigate the
affairs of a company and report thereon. It had to be decided
whether the persons who were examined by the concerned
inspector could claim the protection of Article 20(3). The
0
question was answered, Id. at p. 438:
''The scheme of the relevant sections is that the
investigation begins broadly with a view to examine the
management of the affairs of the company to find out
whether any irregularities have been committed or not. In E
such a case there is no accusation, either formal or
otherwise, against any specified individual; there may be
a general allegation that the affairs are irregularly,
improperly or illegally managed ; but who would be
responsible for the affairs which are reported to be F
irregularly managed is a matter which would be
determined at the end of the enquiry. At the
commencement of the enquiry and indeed throughout its
proceedings there is no accused person, no accuser, and
no accusation against anyone that he has committed an G
offence. In our opinion a general enquiry and investigation
into the affairs of the company thus contemplated cannot
be regarded as an investigation which starts with an
accusation contemplated in Article 20(3) of the
Constitution .... "
H
512 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 112. A similar issue arose for consideration in Romesh
Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461,
wherein it was held, at p. 472:
"Normally a person stands in the character of an accused
when a First Information Report is lodged against him in
B
respect of an offence before an officer competent to
investigate it, or when a complaint is made relating to the
commission of an offence before a Magistrate competent
to try or send to another Magistrate for trial of the offence.
Where a Customs Officer arrests a person and informs
c that person of the' grounds of his arrest, [which he is bound
to do under Article 22(1) of the Constitution] for the .
purpose of holding an inquiry into the infringement of the
provisions of the Sea Customs Act which he has reason
to believe has taken place, there is no formal accusation
D of an offence. In the case of an offence by infringement of
the Sea Customs Act which is punishable at the trial before
a Magistrate, there is an accusation when a complaint is
lodged by an officer competent in that behalf before the
Magistrate."
E
113. In Balkishan A. Devidayal v. State of Maharashtra,
(1980) 4 sec600, one of the contentious issues was whether
the statements recorded by a Railway Police Force (RPF)
officer during an inquiry under the Railway Property (Unlawful
F Possession) Act, 1996 would attract the protection of Article
20(3). Sarkaria, J, held that such an inquiry was substantially
different from an investigation contemplated under the CrPC,
and therefore formal accusation was a necessary condition for
a person to claim the protection of Article 20(3). It was
G obs~rved, Id. at p. 623:
"To sum up, only a person against whom a formal
accusation of the commission of an offence has been
made can be a person 'accused of an offence' within the
meaning of Article 20(3). Such formal accusation may be
H specifically made against him in an FIR or a formal
SELVI & ORS. v. STATE OF KARNATAKA 513
[K.G. BALAKRISHNAN, CJI.]
complaint or any other formal document or notice served A
on that person, which ordinarily results in his prosecution
in court. In the instant case no such formal accusation has
been made against the appellant when his statements in
question were recorded by the RPF Officer."
B
What constitutes 'incrimination' for the purpose of Article
20(3)?
114. We can now examine the various circumstances that
could 'expose a person to criminal charges'. The scenario
under consideration is one where a person in custody is C
compelled to reveal information which aids the investigation
efforts. The information so revealed can prove to be
incriminatory in the following ways:
* The statements made in custody could be directly D
relied upon by the prosecution to strengthen their
case. However, if it is shown that such statements
were made under circumstances of compulsion,
they will be excluded from the evidence.
* Another possibility is that of 'derivative use', i.e. E
when information revealed during questioning leads
to the discovery of independent materials, thereby
furnishing a link in the chain of evidence gathered
by the investigators.
F
* Yet another possibility is that of 'transactional use',
i.e. when the information revealed can prove to be
helpful for the investigation and prosecution in ·
cases other than the one being investigated.
* A common practice is that of extracting materials G
or information, which are then compared with
materials that are already in the possession of the
investigators. For instance, handwriting samples
and specimen signatures are routinely obtained for
the purpose of identification or corroboration. H
514 SUPREME COURT REPORTS (2010] 5 S.C.R.
A 115. The decision in Nandini Satpathy's case (supra.)
sheds light on what constitutes incrimination for the purpose of
Article 20(3). Krishna Iyer, J. observed, at pp. 449-450:
"In this sense, answers that would in themselves support
B a conviction are confessions but answers which have a
reasonable tendency strongly to point out to the guilt of the
accused are incriminatory. Relevant replies which furnish
a real and clear link in the chain of evidence indeed to bind
down the accused with the crime become incriminatory
and offend Article 20(3) if elicited by pressure from the
c mouth of the accused ....
An answer acquires confessional status only if, in terms
or substantially, all the facts which constitute the offence
are admitted by the offender. If his statement also contains
D self-exculpatory matter it ceases to be a confession. Article
20(3) strikes at confessions and self-incriminations but
leaves untouched other relevant facts."
116. Reliance was also placed on the decision of the US
E Supreme Court in Samuel Hoffman v. United States, 341 US
479 (1951). The controversy therein was whether the privilege
against self-incrimination was available to a person who was
called on to testify as a witness in a· grand-jury investigation.
Clark, J. answered the question in the affirmative, at p. 486:
F "The privilege afforded not only extends to answers that
would in themselves support a conviction under a federal
criminal statute but likewise embraces those which would
furnish a link in the chain of evidence needed to prosecute
the claimant for a federal crime. [ ... ]
G
But this protection must be confined to instances where
the witness has reasonable cause to apprehend danger
from a direct answer. [ ... ]"
(internal citations omitted)
H
SELVI & ORS. v. STATE OF KARNATAKA 515
[K.G. BALAKRISHNAN, CJI.]
"To sustain the privilege, it need only be evident from the A
implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be
dangerous because injurious disclosure may result."
8
(at p. 487)
117. However, Krishna Iyer, J. also cautioned against
including in the prohibition even those answers which might be
used as a step towards obtaining evidence against the
accused. It was stated, (1978) 2 sec 424, at p. 451: c
"The policy behind the privilege, under our scheme, does
not swing so wide as to sweep out of admissibility
statements neither confessional per se nor guilty in
tendency but merely relevant facts which, viewed in any 0
setting, does not have a sinister import. To spread the net
so wide is to make a mockery of the examination of the
suspect, so necessitous in the search for truth. Overbreadth
undermines, and we demur to such morbid exaggeration
of a wholesome protection. . ..
E
In Kathi Ka/u Oghad's case, this Court authoritatively
observed, on the bounds between constitutional
proscription and testimonial permission:
'In order that a testimony by an accused person F
may be said to have been self-incriminatory, the
compulsion of which comes within the prohibition
of the constitutional provisions, it must be of such
a character that by itself it should have the tendency
of incriminating the accused, if not also of actually G
doing so. In other words, it should be a statement
which makes the case against the accused at least
probable, considered by itself.' [1962] 3 SCR 10,
32
H
516 SUPREME COURT REPORTS [2010] 5 S.C.R.
A Again the Court indicated that Article 20(3) could be
invoked only against statements which 'had a material
bearing on the criminality of the maker of the statement'.
'By itself does not exclude the setting or other integral
circumstances but means something in the fact disclosed
B a guilt element. Blood on clothes, gold bars with notorious
marks and presence on the scene or possession of the
lethal weapon or corrupt currency have a tale to tell, beyond
red fluid, precious metal, gazing at the stars or testing
sharpness or value of the rupee. The setting of the case
c is an implied component of the statement."
118. In light of these observations, we must examine the
permissibility of extracting statements which may furnish a link
in the chain of evidence and hence create a risk of exposure
to criminal charges. The 'crucial question is whether such
D derivative use of information extracted in a custodial
environment is compatible with Article 20(3). 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
E 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
statements made in the presence of a judicial magistrate which
can be given weightage. The doctrine of excluding the 'fruits
F of a poisonous tree' has been incorporated in Sections 24, 25
and 26 ofthe Indian Evidence Act, 1872 which re~d as follows:
24. Confession caused by inducement, threat or promise,
when irrelevant in criminal proceeding. - A confession
made by an accused person is irrelevant in a criminal
G
proceeding, if the making of the confession appears to the
Court to have been caused by any inducement, threat or
promise, having reference to the charge against the
accused person, proceeding from a person in authority and
sufficient, in the opinion of the Court, to give the accused
H
SELVI & ORS. v. STATE OF KARNATAKA 517
[K.G. BALAKRISHNAN, CJI.]
person grounds, which would appear to him reasonable, A
for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.
25. Confession to police officer not proved. - No 8
confession made to a police officer shall be proved as
against a person accused of any offence.
26. Confession by accused while in custody of police not
to be proved against him. - No confession made by any
person whilst he is in the custody of a police officer, unless C
it be made in the immediate presence of a Magistrate,
shall be proved as against such person.
119. We have already referred to the language of Section
161, CrPC which protects the accused as well as suspects and o
witnesses who are examined during the course of investigation
in a criminal case. It would also be useful to refer to Sections
162, 163 and 164 of the CrPC which lay down procedural
safeguards in respect of statements made by persons during
the course of investigation. However, Section 27 of the E
Evidence Act 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
F
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. This
provision reads as follows:
G
27. How much of information received from accused may
be proved. - Provided that, when any fact is deposed to
as discovered in consequence of information received
from a person accused of any offence, in the custody of a
police officer, so much of such information, whether it H
518 SUPREME COURT REPORTS [2010] 5 S.C.R.
A amounts to a confession or not, as relates distinctly to the
fact thereby discovered, may be proved.
120. This provision permits the derivative use of custodial
statements in the ordinary course of events. In Indian law, there
8 is no automatic presumption that the custodial statements have
been extracted through compulsion. In short, there is no
requirement of additional diligence akin to the ad~inistration
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
C derivative use will offend Article 20(3).The relationship between
Section 27 of the Evidence Act and Article 20(3) of the
Constitution was clarified in Kathi Kalu Oghad (supra.). It was
observed in the majority opinion by Jagannadhadas, J., at pp.
33-34:
D
"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
E 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
F evidence and that will not be hit by the provisions of cl. (3)
of Art. 20 of the Constitution for the reason that there has
been no compulsion. It must, therefore, be held that the
provisions of s. 27 of the Evidence Act are not within the
prohibition aforesaid, unless compulsion has been used
in obtaining the information." (emphasis supplied)
G
This position was made amply clear at pp. 35-36:
"Hence, the mere fact that the accused person, when he
made the statement in question was in police custody
H would not, by itself, be the foundation for an inference of
SELVI & ORS. v. STATE OF KARNATAKA 519
[K.G. BALAKRISHNAN, CJI.]
law that the accused was compelled to make the A
statement. Of course, it is open to an accused person to
show that while he was in police custody at the relevant
time, he was subjected to treatment which, in the
circumstances of the case, would lend itself to the
inference that compulsion was, in fact, exercised. In other B
words, it will be a question of fact in each case to be
determined by the Court on weighing the facts and
circumstances disclosed in the evidence before it."
121. The minority opinion also agreed with the majority's C
conclusion on this point since Das Gupta, J., held at p. 47:
"Section 27 provides that when any fact is deposed to as
discovered in consequence of information received from
a person accused of any offence, in the custody of a police
officer, so much of the information, whether it amounts to D
a confession or not, as .relates distinctly to the fact thereby
discovered, may be proved. It cannot be disputed that by
giving such information the accused furnishes evidence,
and therefore is a 'witness' during the investigation. Unless,
however he is 'compelled' to give the information he cannot E
be said to be 'compelled' to be a witness; and so Article
20(3) is not infringed. Compulsion is not however inherent
in the receipt of information from an accused person in the
custody of a police officer. There may be cases where an
accused in custody is compelled to give the information F
later on sought to be proved L!fld~L~.· 27. There will be
other cases where the accused gives the information
without any compulsion. Where the accused is compelled
to give information it will be an infringement of Art. 20(3);
but there is no such infringement where he gives the G
information without any compulsion .... "
122. We must also address another line of reasoning
which was adopted in one of the impugned judgments. It was
stated that the exclusionary rule in evidence law is applicable
to statements that are inculpatory in nature. Based on this H
520 SUPREME COURT REPORTS [2010] 5 S.C.R.
A premise, it was observed that at the time of administering the
impugned tests, it cannot be ascertained whether the resulting
revelations or inferences will prove to be inculpatory or
exculpatory in due course. Taking this reasoning forward, it was
held that the compulsory administration of the impugned tests
8 should be permissible since the same does not necessarily
lead to the extraction of inculpatory evidence. We are unable
to agree with this reasoning.
123. The distinction between inculpatory and exculpatory
C 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
D 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 we were to permit the admission of involuntary
E statement 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 investigation, an effective choice between speaking
F 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 the information or materials
collected at an earlier stage of investigation can prove to be
G inculpatory in due course.
124. However, it is conceivable that in some circumstances
the testimony extracted through compulsion may not actually
lead to exposure to criminal charges or penalties. For example
this is a possibility when the investigators make an· offer of
H
SELVI & ORS. v. STATE OF KARNATAKA 521
[K.G. BALAKRISHNAN, CJI.]
immunity against the direct use, derivative use or transactional A
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 B
shield a witness from criminal charges in cases other than the
one being investigated. It is of course entirely up to the
investigating agencies to decide 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 c
case. A person who is given an offer of immunity against
prosecution is far more likely to voluntarily cooperate with the
investigation efforts. This could be in the form of giving testimony
or helping in the discovery of material evidence. If a person is
freely willing to cooperate with the investigation efforts, it would
D
be redundant to compel 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.
125. It could be argued that the compulsory administration E
of the impugned tests can prove to be (.;.,dful 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 F
cooperating with the investigators. Even though the right
against self-incrimination 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 G
personal liberty. ·
126. At this juncture, it must be reiterated that Indian law
incorporates the 'rule against adverse inferences from silence'
which is operative at the trial stage. As mentioned earlier, this
H
522 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
evea though an accused is a competent witness in his/her own
trial, hetshe cannot be compelled to answer questions that could
B 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 of the parties from commenting
on the failure of the accused to give evidence. This rule was
lucidly explained in the English case of Woolmington v. OPP,
c (1935) AC 462, at p. 481:
"The 'right to silence' is a principle of common law and it
means that normally courts or tribunals of fact should not
be invited or encouraged to conclude, by parties or
prosecutors, that a suspect or an accused is guilty merely
D because he has refused to respond to questions put to him
by the police or by the Court."
127. The 180th Report of the Law Commission of India
(May 2002) dealt with this very issue. It considered arguments
E for diluting the 'rule against adverse inferences from silence'.
Apart from surveying several foreign statutes and decisions, the
report took note of the fact that Section 342(2) of the erstwhile
Code of Criminal Procedure, 1898 permitted the trial judge to
draw an inference from the silence of the accused. However,
F this position was changed with the enactment of the new Code
of Criminal Procedure in 1973, thereby prohibiting the making
of com.ments as well as the drawing of inferences from the fact
of an accused's
I
silence. In light of this, the report concluded:
" ... We have reviewed the law in other countries as well
G as in India for the purpose of examining whether any
amendments are necessary in the Code of Criminal
·Procedure, 1973. On a review, we find that no changes in
the law relating to silence of the accused are necessary
and if made, they will be ultra vires of Article 20(3) and
H
SELVI & ORS. v. STATE OF KARNATAKA 523
[K.G. BALAKRISHNAN, CJI.]
Article 21 of the Constitution of India. We recommend A
accordingly."
128. Some commentators have argued that the 'rule
against adverse inferences from silence' should be broadly
construed in order to give protection against non-penal
B
consequences. It is reasoned that the fact of a person's refusal
to answer questions should not be held against him/her in a
wide variety of settings, including those outside the context of
criminal trials. A hypothetical illustration of such a setting is a
deportation hearing where an illegal immigrant could be
deported following a refusal to answer questions or furnish C
materials required by the concerned authorities. This question
is relevant for the present case because 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 D
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' E
suspicions. Each of these consequences, though
condemnable, fall 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 F
on Article 21 if such non-penal consequences amount to a
violation of 'personal liberty' as contemplated under the
Constitution. In the past, this Court has recognised the rights
of prisoners (undertrials as well as convicts) as well as
individuals in other custodial environments to receive 'fair, just G
and equitable' treatment. For instance in Suni/ Batra v. Delhi
Administration, (1978) 4 SCC 494, it was decided that
practices such as 'solitary confinement' and the use of bar-
fetters in jails were violative of Article 21. Hence, in
circumstances where persons who refuse to answer questions H
524 SUPREME COURT REPORTS [2010) 5 S.C.R.
A during the investigative stage are exposed to adverse
consequences of a non-penal nature, the inquiry should
account for the expansive scope of Article 21 rather than the
right contemplated by Article 20(3).,
1-B. Whether the results derived from the impugned
8
techniques amount to 'testimonial compulsion' thereby
attracting the bar of Article 20(3)?
129. The next issue is whether the results gathered from
the impugned tests amount to 'testimonial compulsion', thereby
C attracting the prohibition of Article 20(3). For this purpose, it is
necessary to survey the precedents which deal with what
constitutes 'testimonial compulsion' and how testimonial acts
are distinguished from the collection of physical evidence.
Apart from the apparent distinction between evidence of- a
D testimonial and physical nature, some forms of testimonial acts
lie outside the scope of Article 20(3). For instance, even though
acts such as compulsorily obtaining specimen signatures and
handwriting samples are testimonial in nature, they are not
incriminating by themselves if they are used for the purpose of
E identification or corroboration with facts or materials that the
investigators are already acquainted with. The relevant
consideration for extending the protection of Article 20(3) is
whether the materials are likely to lead to incrimination by
themselves or 'furnish a link in the chain of evidence' which
F could lead to the same result. Hence, reliance on the contents
of compelled testimony comes within the prohibition of Article
20(3) but its use for the purpose of identification or
corroboration with facts already known to the investigators is
not barred.
G 130. It is quite evident that 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. In one of the impugned judgments,
H the compulsory administration of the narcoanalysis technique
SELVI & ORS. v. STATE OF KARNATAKA 525 .
[K.G. BALAKRISHNAN, CJI.]
was defended on the ground that at the time of conducting the A
test, it is not known whether the results will eventually prove to
be inculpatory or exculpatory. We have already rejected this
reasoning. We see no other obstruction to the proposition that
the compulsory administration of the narcoanalysis technique
amounts to 'testimonial compulsion' and thereby triggers the B
protection of Article 20(3).
131. However, an unresolved question is whether the
results obtained through polygraph examination and the BEAP
test are of a testimonial nature. In both these tests, inferences C
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 D
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. In the impugned judgments, it has
been held that the results obtained from both the Polygraph
examination and the BEAP test do not amount to 'testimony' E
thereby lying outside the protective scope of Article 20(3). The
same assertion has been reiterated before us by the counsel
for the respondents. In order to evaluate this position, we must
examine the contours of the expression 'testimonial
wmpulsion'. F
132. The question of what constitutes 'testimonial
compulsion' for the purpose of Article 20(3) was addressed in
M.P. Sharma's case (supra.). In that case, the Court considered
whether the issuance of search warrants in the course of an G
investigation into the affairs of a company (following allegations
of misappropriation and embezzlement) amounted to an
infringement of Article 20(3). The search warrants issued under
Section 96 of the erstwhile Code of Criminal Procedure, 1898
authorised the investigating agencies to search the premises
H
. 526 SUPREME COURT REPORTS [2010] 5 S.C.R.
A and seize the documents maintained by the said company. The
relevant observations were made by Jagannadhadas, J., at pp.
1087-1088:
" ... The phrase used in Article 20(3) is 'to be a witness;.
8 A person can 'be a witness' not merely by giving oral
evidence but also by producing documents or making-
intelligible gestures as in the case of a dumb witness [see
Section 119 of the Evidence Act or the like]. 'To be a
witness' is nothing more than 'to furnish evidence', and
such evidence can be furnished through the lips or by
c · production of a thing or of a document or in other modes.
Indeed, every positive volitional act w~lch furnishes
evidence is testimony, and testimonial compulsion
D connotes coercion which procures the positive volitional
evidentiary acts of the person, as opposed to the negative
attitude of silence or submission on his part .... "
133. These observations suggest that the phrase 'to be a
E 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. However, in Kathi Katu Oghad
(supra.), there was a disagreement between the majority and
F minority opinions on whether the expression 'to be a witness'
was the same as 'to furnish evidence'. In that case, this Court
had examined whether certain statutory provisions, namely -
Section 73 of the Evidence Act, Sections 5 and 6 of the
Identification of Prisoners Act, 1920 and Section 27 of the
Evidence Act were compatible with Article 20(3). Section 73
G of the Evidence Act empowered courts to obtain specimen
handwriting or signatures and finger impressions of an accused
person for purposes of comparison. Sections 5 and 6 of the
Identification of Prisoners Act empowered a Magistrate .to
obtain the photograph or measurements of an accused person.
H In respect of Section 27 of the Evidence Act, there was an
SELVI & ORS. v. STATE OF KARNATAKA 527.
[K.G. BALAKRISHNAN, CJI.]
agreement between the majority and the minority opinions that A
the use of compulsion to extract custodial statements amounts
to an exception to the 'theory of confirmation by subsequent
facts'. We have already referred to the relevant observations
in an earlier part of this opinion. Both the majority and minority
opinions ruled that the other statutory provisions mentioned B
above were compatible with Article 20(3), but adopted different
approaches to arrive at this conclusion. In the majority opinion
it was held that the ambit of the expression 'to be a witness'
was narrower than that of 'furnishing evidence'. B.P. Sinha, C.J.
observed, [1962] 3 SCR 10, at pp. 29-32: c
" 'To be a witness' may be equivalent to 'furnishing
evidence' in the sense of making oral or written
statements, but not in the larger sense of the expression
so as to include giving of thumb impression or impression
of palm or foot or fingers or specimen writing or exposing D
a part of the body by an accused person for purpose of
identification. 'Furnishing evidence' in the latter sense
could not have been within the contemplation of the
Constitution-makers for the simple reason that - though
they may have intended to protect an accused person from E
the hazards of self-incrimination, in the light of the English
Law on the subject - they could not have intended to put
obstacles in the way of efficient and effective investigation
into crime and of bringing criminals to justice. The taking
of impressions or parts of the body of an accused person F
very often becomes necessary to help the investigation of
a crime. It is as much necessary to protect an accused
person against being compelled to incriminate himself, as
to arm the ager:its of law and the law courts with legitimate
powers to bring offenders to justice. Furthermore it'must G
be assumed that the Constitution-makers were aware of
the existing law, for example, Section 73 of the Evidence
Act or Section 5 and 6 of the Identification of Prisoners
Act(XXXlll of 1920).
H
528 SUPREME COURT REPORTS [2010] 5 S.C.R.
A The giving of finger impression or of specimen
signature or of handwriting, strictly speaking·, is not 'to be
a witness'. To be a witness' means imparting knowledge
in respect of relevant fact, by means of oral statements
or statements in writing, by a person who has personal
B knowledge of the facts to be communicated to a court or
to a person holding an enquiry or investigation. A person
is said 'to be a witness' to a certain state of facts which
has to be determined by a court or authority authorised to
come to a decision, by testifying to what he has seen, or
c something he has heard which is capable of being heard
and is not hit by the rule excluding hearsay or giving his
opinion, as an expert, in respect of matters in controversy.
Evidence has been classified by text writers into three
categories, namely, (1) oral testimony; (2) evidence
furnished by documents; and (3) material evidence. We
D
have already indicated that we are in agreement with the
Full Court decision in Sharma's case, [1954] SCR 1077,
that the prohibition in cl. (3) of Art. 20 covers not only oral
testimony given by a person accused of an offence but also
his written statements which may have a bearing on the
E controversy with reference to the charge against him ....
.. . Self-incrimination must mean conveying information
based upon the personal knowledge of the person giving
the information and cannot include merely the mechanical
F process of producing documents in court which may throw
a light on any of the points in controversy, but which do not
contain any statement of the accused based on his
personal knowledge. For example, the accused person
may be in possession of a document which is in his writing
G or which contains his signature or his thumb impression.
The production of such a document, with a view to
comparison of the writing or the signature or the
impression, is not the statement of an accused person,
which can be said to be of the nature of a personal
testimony. When an accused person is called upon by the
H
SELVI & ORS. v. STATE OF KARNATAKA 529
[K.G. BALAKRISHNAN, CJI.]
Court or any other authority holding an investigation to give A
his finger impression or signature or a specimen of his
handwriting, he is not giving any testimony of the nature of
a 'personal testimony'. The giving of a 'personal testimony'
must depend on his volition. He can make any kind of
statement or may refuse to make any statement. But his B
finger impressions or his handwriting, in spite of efforts at
concealing the true nature of it by dissimulation cannot
change their intrinsic character. Thus, the giving of finger
impressions or of specimen writing or of signatures by an
accused person, though it may amount to 'furnishing c
evidence' in the larger sense, is not included within the
expression 'to be a witness'.
In order that a testimony by an accused person may be
said to have been self-incriminatory, the compulsion of
which comes within the prohibition of the constitutional D
provision, it must be of such a character that by itself it
should have the tendency of incriminating the accused, if
not also of actually doing so. In other words, it should be a
statement which makes the case against the accused
person atleast probable, considered by itself. A specimen E
handwriting or signature or finger impressions by
themselves are no testimony at all, being wholly innocuous
because they are unchangeable except in rare cases
where the ridges of the fingers or the style of writing have
been tampered with. They are only materials for F
comparison in order to lend assurance to the Court that
its inference based on other pieces of evidence is reliable.
They are neither oral nor documentary evidence but belong
to the third category of material evidence which is outside
the limit of 'testimony'." G
134. Hence, B.P. Sinha, C.J. construed the expression 'to
be a witness' as one that was limited to oral or documentary
evidence, while further confining the same to statements that
could lead to incrimination by themselves, as opposed to those
H
530 SUPREME COURT REPORTS [2010] 5 S.C.R.
A used for the purpose of identification or comparison with facts
already known to the investigators. The minority opinion
authored by Das Gupta, J. (3 judges) took a different approach,
which is evident from the following extracts, Id. at pp. 40-43:
'That brings us to the suggestion that the expression 'to
B
be a witness' must be limited to a statement whether oral
or in writing by an accused person imparting knowledge
of relevant facts; but that mere production of some material
evidence, whether documentary or otherwise would not
come within the ambit of this expression. This suggestion
c has found favour with the majority of the Bench, we think
however that this is an unduly narrow interpretation. We
have to remind ourselves that while on the one hand we
should bear in mind that the Constitution-makers could not
have intended to stifle legitimate modes of investigation
D we have to remember further that quite clearly they thought
that certain things should not be allowed to be done, during
the investigation, or trial, however helpful they might seem
to be to the unfolding of truth and an unnecessary
apprehension of disaster to the police system and the
E administration of justice, should not deter us from giving
the words their proper meaning. It appears to us that to
limit the meaning of the words 'to be a witness' in Art.
20(3) in the manner suggested would result in allowing
compulsion to be used in procuring the production from the
F accused of a large number of documents, which ,are of
evidentiary value, sometimes even more so than any oral
statement of a witness might be ....
. . . There can be no doubt that to the ordinary user of
English words, the word 'witness' is always associated with
G
evidence, so that to say that 'to be a witness' is to 'furnish
evidence' is really to keep to the natural meaning of the
words ....
. . . It is clear from the scheme of the various provisions,
H dealing with the matter that the govern~ng idea is that to
SELVI & ORS. v. STATE OF KARNATAKA 531
[K.G. BALAKRISHNAN, CJI.]
be evidence, the oral statement or a statement contained A
in a document, shall have a tendency to prove a fact -
whether it be a fact in issue or a relevant fact - which is
sought to be proved. Though this definition of evidence is
in respect of proceedings in Court it will be proper, once
we have come to the conclusion, that the protection of Art. B
20(3) is available even at the stage of investigation, to hold
that at that stage also the purpose of having a witness is
to obtg.in evidence and the purpose of evidence is to prove
a fact.
The illustrations we have given above show clearly that it C
is not only by imparting of his knowledge that an accused
person assists the provi_ng of a fact; he can do so even by
other means, such as the production of documents which
though not containing his own knowledge would have a
tendency to make probable the existence of a fact in issue D
or a relevant fact."
135. Even though Das Gupta, J. saw no difference
between the scope of the expressions 'to be a witness' and
'to furnish evidence', the learned judge agreed with the E
majority's conclusion that for the purpose of invoking Article
20(3) the evidence must be incriminating by itself. This entailed
that evidence could be relied upon if it is used only for the
purpose of identification or comparison with information and
materials that are already in the possession of the investigators. F
The following observations were made at pp. 45-46:
" . . . But the evidence of specimen handwriting or the
impressions of the accused person's fingers, palm or foot,
will incriminate him, only if on comparison of these with
certain other handwritings or certain other impressions, G
identity between the two sets is established. By
themselves, these impressions or the handwritings do not'
incriminate the accused person, or even tend to do so.
That is why it must be held that by giving these
H
532 SUPREME COURT REPORTS [2010] 5 S.C.R.
A impressions or specimen handwriting, the accused person
does not furnish evidence against himself....
..... This view, it may be pointed out does not in any way
militate against the policy underlying the rule against
'testimonial compulsion' we have already discussed
B
above. There is little risk, if at all, in the investigator or the
prosecutor being induced to lethargy or inaction because
he can get such handwriting or impressions from an
accused person. For, by themselves they are of little or of
no assistance to bring home the guilt of an accused. Nor
c is there any chance of the accused to mislead the
investigator into wrong channels by furnishing false
evidence. For, it is ~eyond his power to alter the ridges
or other characteristics of his hand, palm or finger or to
alter the characteristics of his handwriting.
D
We agree therefore with the conclusion reached by the
majority of the Bench that there is no infringement of Art.
20(3) of the Constitution by compelling an accused person
to give his specimen handwriting or signature; or
E impressions of his fingers, palm or foot to the investigating
officer or under orders of a court for the purpose of
comparison under the provisions of s. 73 of the Indian
Evidence Act; though we have not been able to agree with
the view of our learned brethren that 'to be a witness' in
F Art. 20(3) should be equated with the imparting of personal
knowledge or that an accused does not become a witness
when he produces some document not in his own
handwriting even though it may tend to prove facts in issue
or relevant facts against him."
G 136. Since the majority decision in Kathi Kalu Oghad
(supra.) 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
H a person in respect of relevant facts that amount to 'personal
SELVI & ORS. v. STATE OF KARNATAKA 533
[K.G. BALAKRISHNAN, CJI.]
testimony' thereby coming within the prohibition contemplated A
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 B
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 lead to incrimination by themselves
or 'furnish a link in the chain of evidence' needed to do so. We
must emphasize that a situation where a testimonial response c
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.
D
137. 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. In Armando Schmerber v. California, 384 US 757
(1966), the U.S. Supreme Court had to determine whether an E
involuntary blood test of a defendant had violated the Fifth
Amendment. The defendant was undergoing treatment at a
hospital following an automobile accident. A blood sample was
taken against his will at the direction of a police officer. Analysis
of the same revealed that Schmerber had been intoxicated and F
, these results were admitted into evidence, thereby leading to
~bis conviction for drunk driving. An objection was raised on the
basis of the Fifth Amendment and the majority opinion (Brennan,
J.) relied on a distinction between evidence of a 'testimonial'
or 'communicative' nature as opposed to evidence of a G
'physical' or 'real nature', concluding that the privilege against
self-incrimination applied to the former but not to the latter. In
arriving at this decision, reference was made to several
precedents with a prominent one being United States v. Holt,
218 US 245 (1910). In that case, a defendant was forced to H
534 SUPREME COURT REPORTS (2010) 5 $.C.R.
A try on an article of clothing during the course of investigation. It
had been ruled that the privilege against self-incrimination
prohibited the use of compulsion to 'extort communications'
from the defendant, but not the use of the defendant's body as
evidence.
B
138. In addition to citing John Wigmore's position that 'the
privilege is limited to testimonial disclosures' the Court in
Schmerber also took note of other examples where it had been
held that the privilege did not apply to physical evidence, which
C included 'compulsion to submit to fingerprinting, photographing,
or measurements, to write or speak for identification, to appear
in court, to stand, to assume a stance, to walk, or to make a
particular gesture.' However, it was caution~d that the privilege
applied to testimonial communications, irrespective of what
form they might take. Hence it was recognised that the privilege
D not only extended to verbal communications, but also to written
words as well as gestures intended to communicate [for, e.g.,
pointjng or nodding]. This line of thinking becomes clear
because the majority opinion indicated that the distinction
between testimonial and physical acts may not be readily
E applicable in the case of Lie-Detector tests. Brennan, J. had
1 noted, 384 US 757 (1966), at p. 764:
"Although we agree that this distinction is a helpful
framework for analysis, we are not to be understood to
F agree with past applications in all instances. There will be
many case~:in which such a distinction is not readily drawn.
Some tests seemingly directed to obtain 'physical
evidence,' for example, lie detector tests measuring
changes in body function during interrogation, may actually
be directed to eliciting responses, which are essentially
G
testimonial. To compel a person to submit to testing in
which an effort will be made to determine his guilt or
innocence on the basis of physiological responses,
whether willed or not, is to evoke the spirit and history of
the Fifth Amendment. Such situations call to mind the
H
SELVI & ORS. v. STATE OF KARNATAKA 535
[K.G. BALAKRISHNAN, CJI.]
principle that the protection of the privilege 'is as broad A
as the mischief against which it seeks to guard.' [ .. .]"
In a recently published paper, Michael S. Pardo (2008) has
made the following observation in respect of this judgment
[Cited from: Michael S. Pardo, 'Self-Incrimination and the
B
Epistemology of Testimony', 30 Cardozo Law Review
1023-1046 (December 2008) at pp. 1027-1028]:
"the Court notes that even the physical-testimonial
distinction may break down when physical evidence is
meant to compel 'responses which are essentially C
testimonial' such as a lie-detector test measuring
physiological responses during interrogation."
139. Following the Schmerber decision (supra.), the
distinction between physical and testimonial evidence has been D
applied in several cases. However, some complexities have
also arisen in the application of the testimonial-physical
distinction to various fact-situations. While we do not need to
discuss these cases to decide the question before us, we must
take note of the fact that the application of the testimonial-
E
physical distinction can be highly ambiguous in relation to non-
verbal forms of conduct which nevertheless convey relevant
information. Among other jurisdictions, the European Court of
Human Rights (ECtHR) has also taken note of the distinction
between testimonial and physical acts for the purpose of
invoking the privilege against self-incrimination. In Saunders v. F
United Kingdom, (1997) 23 EHRR 313, it was explained:
• ... The right not to incriminate oneself, in particular,
presupposes that the prosecution in a criminal case seek
to prove their case against the accused without re~ort to G
evidence obtained through methods of coercion or
oppression in defiance of the will of the accused. In this
sense the right is closely linked to the presumption of
innocence ... The right not to incriminate oneself is
primarily concerned, however, with respecting the will of H
536 SUPREME COURT REPORTS [2010] 5 S.C.R.
A an accused person to remain silent. As commonly
understood in the legal systems of the Contracting Parties
to the Convention and elsewhere, it does not extend to the
use in criminal proceedings of material which may be
obtained from the accused through the use of compulsory
B powers but which has an existence independent of the will
of the suspect such as, inter alia, documents acquired
pursuant to a warrant, breath, blood and urine samples and
bodily tissue for the purpose of DNA testing."
Evolution of the law on 'medical examination'
c
140. With respect to the testimonial-physical distinction, an
important statutory development in our legal system was the
introduction of provisions for medical examination with th·e
overhauling of the Code of Criminal Procedure in 1973.
D Sections 53 and 54 of the CrPC contemplate the medical
examination of a person who has been arrested, either at the
instance of the investigating officer or even the arrested person
himself. The same can also be done at the direction of the
jurisdictional court.
141. 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
F be subjected to the same. For example in Bhondar v.
Emperor, AIR 1931 Cal 601, Lord Williams, J. held, at p. 602:
"If it were permitted forcibly to take hold of a prisoner and
examine his body medically for the purpose of qualifying
G some medical witness to give medical evidence in the
case against the accused there is no knowing where such
procedure would stop .
. ..Any such examination without the consent of the accused
would amount to an assault and I am quite satisfied that
H
SELVI & ORS . v. STATE OF KARNATAKA 537
[K.G. BALAKRISHNAN, CJI.]
the police are not entitled without statutory authority to A
commit assaults upon prisoners for the purpose of
procuring evidence against them. If the legislature desires
that evidence of this kind should be given, it will be quite
simple to add a short section to the Code of Criminal
Procedure expressly giving power to order such a medical B
examination."
S.K. Ghose, J. concurred, at p. 604:
"Nevertheless the examination of an arrested person in
hospital by a doctor, not for the benefit of the prisoner's C
health, but simply by way of a second search, is not
provided for by Code, and is such a case the doctor may
not examine the prisoner without his consent. It would be
a rule of caution to have such consent noted in the medical
report, so that the doctor would be in a position to testify D
to such consent if called upon to do so."
A similar conclusion was arrived at by Tarkunde, J. in Deomam
Shamji Patel v. State of Maharashtra, AIR 1959 Born 284,
who held that a person suspected or accused of having
E
committed an offence cannot be forcibly subjected to a medical
examination. It was also held that if police officers use force
for this purpose, then a person can lawfully exercise the right
of private defence to offer resistance.
142. It was the 37th and 41 st Reports of the Law F
Commission of India which recommended the insertion of a
provision in the Code of Criminal Procedure to enable medical
examination without the consent of an accused. These
recommendations.proved to be the precursor for the inclusion
of Sections 53 and 54 in the Code of Criminal Procedure, 1973. G
It was observed in the 37th Report (December 1967), at pp.
205-206:
" .. . It will suffice to refer to the decision of the Supreme
Court in Kathi Kalu, [AIR 1961 SC 1808] which has the
H
538 SUPREME COURT REPORTS [2010] 5 S.C.R.
A effect of confining the privilege under Article 20(3) to
testimony - written or oral. [Fn ... ] The Supreme Court's
judgment in Kathi Kalu should be taken as overruling the
view taken in some earli\er decisions, [Fn 6, 7 ... ]
invalidating provisions simil'!!r to Section 5, Identification
B of Prisoners Act, 1920.
The position in the U.S.A. has been summarised [Fn 8 -
Emerson G., ·ou·e Process and the American Criminal
Trial', 33 Australian Law Journal 223, 231 (1964)]
c 'Less certain is the protection accorded to the
defendant with regard to non-testimonial physical
evidence other than personal papers. Can the
accused be forced to sup"ply a sample of his blood
or urine if the resultant tests are likely to further the
D prosecution's case? Can he be forced to giJe his
finger prints to wear a disguise or certain clothing,
to supply a pair of shoes which might match
footprints at the scene of the crime, to stand in a
line-up, to submit to a hair cut or to having"his hair
E dyed, or to have his stomach pumped or a
fluoroscopic examination of the contents of his
intestines? The literature on this aspect of self-
incrimination is voluminous. [Fn ... ]
The short and reasonably accurate answer to the question
F posed is that almost all such physical acts can be required.
[Fn ... ] Influenced by the historical development of the
doctrine, its purpose, and the need to balance the
conflicting interests of the individual and society, the courts
have generally restricted the protection of the Fifth
G Amendment to situations where the defendant would be
required to convey ideas, or where the physical acts would
offend the decencies of civilized conduct."
(some internal citations omitted)
H
SELVI & ORS. v. STATE OF KARNATAKA 539
[K.G. BALAKRISHNAN, CJI.]
Taking note of Kathi Kalu Oghad (supra.) and the distinction A
drawn between testimonial and physical acts in American
cases, the Law Commission observed that a provision for
examination of the body would reveal valuable evidence. This
view was taken forward in the 41 st Report which recommended
the inclusion of a specific provision to enable medical B
examination during the course of investigation, irrespective of
the subject's consent. [See: 41 st Report of the Law
Commission of India, Vol. I (September 1969), Para 5.1 at p.
37)
143. We were also alerted to some High Court decisions C
which have relied on Kathi Ka/u Oghad (supra.) to approve the
taking of physic?! evidence such as blood and hair samplE?s in
the course of investigation. Following the overhaul of the Code
of Criminal Procedure in 1973, the position became amply
clear. In recent years, the judicial power to order a medical D
examination, albeit in a different context, has been discussed
by this Court in Sharda v. Dharampa/, (2003) 4 SCC 493. In
that case, the contention related to the validity of a civil court's
direction for conducting a medical examination to ascertain the
mental state of a party in a divorce proceeding. Needless to E
say, the mental state of a party was a relevant issue before the
trial court, since insanity is a statutory ground for obtaining
divorce under the Hindu Marriage Act, 1955. S.B. Sinha, J. held
that Article 20(3) was anyway not applicable in a civil
proceeding and that the civil court could direct the medical F
examination in exercise of its inherent powers under Section
151 of the Code of Civil Procedure, since there was no ordinary
statutory basis for the same. It was observed, Id. at p. 508:
"Yet again the primary duty of a court is to see that truth is G
arrived at. A party to a civil litigation, it is axiomatic, is not
entitled to constitutional protections under Article 20 of the
Constitution of India. Thus, the civil court although may not
have any specific provisions in the Code of Civil Procedure
and the Evidence Act, has an inherent power in terms of
H
540 SUPREME COURT REPORTS [2010] 5 S.C.R.
",
A Section 151 of the Code of Civil Procedure to pass all
orders for doing complete justice to the parties to the suit.
Discretionary power under Section 151 of the Code of Civil
Procedure, it is trite, can be exercised also on an
application filed by the party. In certain cases medical
B
examination by the experts in the field may not only be
found to be leading to the truth of the matter but may also
lead to removal of misunderstanding between the parties.
It may bring the parties to terms. Having regard to
development in medicinal technology, it is possible to find
c out that what was presumed to be a mental disorder of a
spouse is ngt really so. In matrimonial disputes, the court
also ha~ a conciliatory role to play - even for t~e said
purpose it may require expert advice.
D Under Section 75(e) of the Code of Civil Procedure and
Order 26, Rule 10-A the civil court has the requisite power
to issue a direction to hold a scientific, technical or expert
investigation."
E 144. The decision had also cited some foreign precedents
dealing with the authority of investigators and courts to require
the collection of DNA samples for the purpose of comparison.
In that case the discussion centered on the 'right to privacy'.
So far, the authority of investigators 'and courts to compel the
production of DNA samples has been approved by the Orissa
F High Court in Thogorani v. State of Orissa, 2004 Cri L J 4003
(Ori).
145. At this juncture, it should be noted that the
Explanation to Sections 53, 53-A and 54 of the Code of
G Criminal Procedure, 1973 was amended in 2005 to clarify the
scope of medical examination, especially with regard to the
extraction of bodjly substances. The amended provision reads:
53. Examination of accused by medical practitioner at the
request of police officer. -
H
SELVI & ORS. v. STATE OF KARNATAKA 541
[K.G. BALAKRISHNAN, CJI.]
(1) When a person is arrested on a charge of committing A
an offence of such a nature and alleged to have been
committed under such circumstances that there are
reasonable grounds for believing that an examination of
his person will afford evidence as to the commission of an
offence, it shall be lawful for a registered medical 8
practitioner, acting at the request of a police officer not
below the rank of sub-inspector, and for any person acting
in good faith in his aid and under his direction, to make
such an examination of the person arrested as is
reasonably necessary in order to ascertain the facts which c
may afford such evidence, and to use such force as is
reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined
under this section, the examination shall be made only by,
or under the supervision of, a female registered medical D
practitioner.
Explanation. - In this section and in sections 53-A and 54,
E
(a) 'examination' shall include the examination of
blood, blood-stains, semen, swabs in case of
sexual offences, sputum and sweat, hair samples
and finger nail clippings by the use of modern and
scientific techniques including DNA profiling and
F
such other tests which the registered medical
practitioner thinks necessary in a particular case;
(b) 'registered medical practitioner' means a medical
practitioner who possesses any medical
qualification as defined in clause (h) of Section 2 G
of the Indian Medical Council Act , 1956 (102 of
1956) and whose name has been entered in a
State Medical Register.
(emphasis supplied)
H
542 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 146. The respondents have urged that the impugned
techniques should be read into the relevant provisions - i.e.
Sections 53 and 54 of CrPC. As described earlier, a medical
examination of an arrested person can be directed during the
course of an investigation, either at the instance of the
B investigating officer or the arrested person. It has also been
clarified that it is within the powers of a court to direct such a
medical examination on its own. Such an examination can also
be directed in respect of a person who has been released from
·custody on bail as well as a person who has been granted
c anticipatory bail. Furthermore, Section 53 contemplates the use
of 'force as is reasonably necessary' for conducting a medical
examination. This means that once a court has directed the
medical examination of a particular person, it is within the
powers of the investigators and the examiners to resort to a
reasonable degree of physical force for conducting the same.
0
147. The contentious provision is the Explanation to
Sections 53, 53-A and 54 of the CrPC (amended in 2005)
which has been reproduced above. It has been contended that
the phrase 'modern and scientific techniques including DNA
E profiling and such other tests' should be liberally construed to
include the impugned techniques. It was argued that even
though the narcoanalysis technique, polygraph examination and
the BEAP test have not been expressly enumerated, they could
be read in by examining the legislative intent. Emphasis was
F placed on the phrase 'and such other tests' to argue that the
Parliament had chosen an approach where the list of 'modern
and scientific techniques' contemplated was illustrative and r.ot
exhaustive. It was also argued that in any case, statutory
provisions can be liberally construed in light of scientific
G advancements; With the development of newer technologies,
their use can be governed by older statutes which had been
framed to regulate the older technologies used for similar
purposes.
148. On the other hand, the counsel for the appellants have
H
SELVI & ORS. v. STATE OF KARNATAKA 543
[K.G. BALAKRISHNAN, CJI.]
contended that the Parliament was well aware of the impugned A
techniques at the time of the 2005 amendment and consciously
chose not to include them in the amended Explanation to
Sections 53, 53-A and 54 of the CrPC. It was reasoned that
this choice recognised the distinction between testimonial acts
and physical evidence. While bodily substances such as blood, B
semen, sputum, sweat, hair and fingernail clippings can be
readily characterised as physical evidence, the same cannot
be said for the techniques in question. This argument was
supported by invoking the rule of 'ejusdem generis' which is
used in the interpretation of statutes. This rule entails that the c
meaning of general words which follow specific words in a
statutory provision should be construed in light of the
commonality between those specific words. In the present case,
the substances enumerated are all examples of physical
evidence. Hence the words 'and such other tests' which appear 0
in the Explanation to Sections 53, 53-A and 54 of the CrPC
should be construed to include the examination of physical
evidence but not that of testimonial acts.
149. We are inclined towards the view that the results of
the impugned tests should be treated as testimonial acts for E
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 F
examination of physical evidence. In pursuance of this line of
reasoning, we agree with the appellant's contention about the
applicability of the rule of 'ejusdem generis'. 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 G
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. H
544 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 150. However, the submissions touching on the legislative
intent require some· reflection. 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 deliberately
chose not to enumerate them, we cannot arrive at a conclusive
B finding on this issue. While it is open to courts to examine the
legislative history of a statutory provision, it is not proper for us
to try and conclusively ascertain the legislative intent. Such an
inquiry is impractical since we do not have access to all the
materials which would have been considered by the Parliament.
c In such a scenario, we must address the respondent's
arguments about the interpretation of statutes with regard to
scientific advancements. To address this aspect, we can refer
to some extracts from a leading commentary on the
interpretation of statutes [See: Justice G.P. Singh, Principles
of Statutory Interpretation, 10th edn. (New Delhi: Wadhwa &
0
Co. Nagpur, 2006) at pp. 239-247]. The learned author has
noted, at pp. 240-241:
"Reference to the circumstances existing at the time of the
passing of the statute does not, therefore, mean that the
E language used, at any rate, in a modern statute, should be
held to be inapplicable to social, political and economic
developments or to scientific inventions not known at the
time of the passing of the statute .... The question again
is as to what was the intention of the law makers: Did they
F intend as originalists may argue, that the words of the
statute be given the meaning they would have received
immediately after the statute's enactment or did they intend
as dynamists may contend that it would be proper for the
court to adopt the current meaning of the words? The
G courts have now generally leaned in favour of dynamic
construction. [ ... ] But the doctrine has also its limitations.
For example it does not mean that the language of an old
statute can be construed to embrace something
conceptually different.
H
SELVI & ORS. v. STATE OF KARNATAKA 545
[K.G. BALAKRISHNAN, CJI.]
The guidance on the question as to when an old statute A
can apply to new state of affairs not in contemplation when
the statute was enacted was furnished by Lord Wilberforce
in his dissenting speech in Royal College of Nursing of the
U.K. v. Dept. of Health and Social Security, (1981) 1 All
ER 545, which is now treated as authoritative. (... ) Lord B
Wilberforce said, at pp. 564-565:
In interpreting an Act of Parliament it is proper, and
indeed necessary, to have regard to the state of
affairs existing, and known by Parliament to be C
existing, at the time. It is a fair presumption that
Parliament's policy or intention is directed to that
state of affairs. ~eaving aside cases of omission
by inadvertence, this being not such a case when
a new state of affairs, or a fresh set of facts bearing
on policy, comes into existence, the courts have to D
consider whether they fall within the parliamentary
intention. They may be held to do so, if they fall
within the same genus of facts as those to which
the expressed policy has been formulated. They
may also be held to do so if there can be detected E
a clear purpose in the legislation which can only be
fulfilled if the extension is made. How liberally these
principles may be applied must depend on the
nature of the enactment, and the strictness or
otherwise of the words in which it has been F
expressed. The courts should be less willing to
extend expressed meanings if it is clear that the Act
in question was designed to be restrictive or
circumscribed in its operation rather than liberal or
permissive. They will be much less willing to do so G
where the new subject matter is different in kind or
dimension from that for which the legislation was
passed. In any event there is one course which the
courts cannot take under the law of this country: they
cannot fill gaps; they cannot by asking the question, H
546 SUPREME COURT REPORTS [201 OJ 5 S.C.R.
A 'What would Parliament have done in this current
case, not being one in contemplation, if the facts
had been before it?' attempt themselves to supply
the answer, if the answer is not to be found in the
terms of the Act itself."
B
(internal citations omitted)
151. The learned author has further taken note of several
decisions wtn~re general words appearing in statutory
provisions have been liberally interpreted to include newer
C scientific inventions and technologies. [Id. at pp. 244-246) The
relevant portion of the commentary quotes Subbarao, J. in
Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962
SC 159, at P: 163:
D "It is perhaps difficult to attribute to a legislative body
functioning in a static society that its intention was couched
in terms of considerable breadth so as to take within its
sweep the future developments comprehended by the
phraseology used. It is more reasonable to confine its
intention only to the circumstances obtaining at the time
E
the law was made. But in modern progressive society it
would be unreasonable to confine the intention of a
Legislature to the meaning attributable to the word used
at the time the law was made, for a modern Legislature
making laws to govern society which is fast moving must
F be presumed to be aware of an enlarged meaning the
same concept might attract with the march of time and with
the revolutionary changes brought about in social,
economic, political and scientific and other fields of human
activity. Indeed, unless a contrary intention appears, an
G interpretation should be given to the words used to take
in new facts and situations, if the words are capable of
comprehending them."
152. In light of this discussion, there are some clear
H obstructions to the dynamic interpretation of the amended
SELVI & ORS. v. STATE OF KARNATAKA 547
[K.G. BALAKRISHNAN, CJI.]
Explanation to S~ctions 53, 53-A and 54 of the CrPC. Firstly, A
m
the general words 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, we cannot readily construe B
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 c
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 us
we lean towards the view that the impugned tests, i.e. the
narcoanalysis technique, polygraph examination and the BEAP
0
test should not be read into the provisions for 'medical
examination' under the Code of Criminal Procedure, 1973.
153. 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 E
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). In the past, the
meaning and scope of the term 'investigation' has been held
to include measures that had not been enumerated in statutory F
provisions. For example, prior to the enactment of an express
provision for medical examination in the CrPC, it was observed
in Mahipal Maderna v. State of Maharashtra, 1971 Cri L J
1405 (Born), that an order requiring the production of a hair
sample comes within the ordinary understanding of G
'investigation' (at pp. 1409-1410, Para. 17). We must also take
note of the decision in Jamshed v. State of Uttar Pradesh,
1976 Cri L J 1680 (All), wherein it was held that a blood sample
can be compulsorily extracted during a 'medical examination'
conducted under Section 53 of the CrPC. At that time, the H
548 SUPREME COURT REPORTS [2010) 5 S.C.R.
A collection of blood samples was not expressly contemplated in
the said provision. Nevertheless, the Court had ruled that the
phrase 'examination of a person' should be read liberally so
as to include an examination of what is externally visible on a
body as well as the examination of an organ inside the body.
B [See p. 1689, Para 13)
154. We must also refer back to the substance of the
decision in Sharda v. Dharampal, (supra.) which upheld the
authority of a civil· court to order a medical examination in
C exercise of the inherent powers vested in it by Section 151 of
the Code of Civil Procedure, 1908. The same reasoning cannot
be readily applied in the criminal context. Despite the absence
of. a statutory basis, it is tenable to hold that criminal courts
should be allowed to direct the impugned tests with the
subject's consent, keeping in mind that there is no statutory
D prohibition against them either.
155. Another pertinent contention raised by the appellants
is that the involvement of medical personnel in the compulsory
administration of the impugned tests is violative of their
E professional ethics. In particular, criticism was directed against
the involvement of doctors in the narcoanalysis technique and
it was .urged that since the content of the drug-induced
revelations were shared with investigators, this technique
breaches the duty of confidentiality which should be ordinarily
F maintained by medical practitioners. [See generally: Amar
Jesani, 'Wil/ing participants and tolerant profession: Medical
ethics and human rights in narco-analysis', Indian Journal of
Medical Ethics, Vol. 16(3), July-Sept. 2008) The counsel have
also cited the text of the 'Principles of Medical Ethics' adopted
by the United Nations General Assembly [GA Res. 37/194,
G 111 th Plenary Meeting] on December 18, 1982. This document
enumerates some 'Principles of M,edical Ethics relevant to the
role of health personnel, particularly' physicians, in tt:ie protection
of prisoners and detainees against torture, and other cruel,
inhuman or degrading treatment of punishment'. Empha,sis was
H placed on Principle 4 which reads:
SELVI & ORS. v. STATE OF KARNATAKA 549
[K.G. BALAKRISHNAN, CJI.]
Principle 4 A
It is a contravention of medical ethics for health personnel,
particularly physicians:
To apply their knowledge and skills in order to assist in the
interrogation of prisoners and detainees in a manner that B
may adversely affect the physical or mental health or
condition of such prisoners or detainees and which is not
in accordance with the relevant international instruments;
156. Being a court of law, we do not have the expertise to C
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 D
medical examination are an example of the same. Fields such
as forensic toxicology have become important in criminal-
justice 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 E
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.
F
Results of impugned tests should be treated as 'personal
testimony'
157. We now return to the operative question of whether
the results obtained through polygraph examination and the G
BEAP test should be treated as testimonial responses.
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
H
550 SUPREME COURT REPORTS [2010) 5 S.C.R.
A 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
B 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.
c 158. We have already stated that the narcoanalysis test
includes s~bstantial reliance on verbal statements by the test
subject and hence _its involuntary administration offends the.
'right against self-incrimination'. The crucial test laid down in
Kathi Kalu Oghad, (supra.) is that of 'imparting knowledge in
D respect of relevant fact by means of oral statements or
statements in writing, by a person who has personal knowledge
of the facts to be communicated to a court or to a person
holding an enquiry or investigation' [Id. at p. 30]. The difficulty
arises since the majority opinion in that case appears to co~fine
E the understanding of 'personal testimony' to the conveyance of
personal knowledge through oral statements or statements in .
writing. The results obtained from polygraph examination or a
BEAP test are not in the nature of oral or written statements.
Instead, inferences are drawn from the measurement of
F physiological responses recorded during the performance of
these tests. It could also be argued that tests such as polygraph
examination and the BEAP test do not involve a 'positive
volitional act' on part of the test subject and hence their results
should not be treated as testimony. However, this does not
G entail that the results of these two tests should be likened to
physical evidence and thereby excluded from the protective
scope ofArticle 20(3). We must refer back to the substance of
the decision in Kathi Kalu Oghad (supra.) which equated a
testimonial act with the imparting of knowledge by a person
H who has personal knowledge of the facts that are in issue. It
SELVI & ORS. v. STATE OF KARNATAKA 551
[K.G. BALAKRISHNAN, CJI.]
has been recognised in other decisions that such personal A
knowledge about relevant facts can also be communicated
through .means other than oral or written statements. For
example in M.P. Sharma's case (supra.), it was noted that
"... evidence can be furnished through the lips or by production
of a thing or of a document or in other modes" [Id. at p. 1087). s
Furthermore, common sense dictates that certain
communicative gestures such as pointing or nodding can also
convey personal knowledge about a relevant fact, without
offering a verbal response. It is quite foreseeable that such a
communicative gesture may by itself expose a person to c
'criminal charges or penalties' or furnish a link in the chain of
evidence needed for prosecution.
159. We must also highlight that there is nothing to show
t:iat the learned judges in Kathi Ka/u Oghad (supra.) had
contemplated the impugned techniques while discussing the D
scope of the phrase 'to be a witness' for the purpose of Article
20(3). At that time, the transmission of knowledge through
means other than speech or writing was not something that
could have been easily conceived of. Techniques such as
polygraph examination were fairly obscure and were the subject E
of experimentation in some Western nations while the BEAP
technique was developed several years later. Just as the
interpretation of statutes has to be often re-examined in light
of scientific advancements, we should also be willing to re-
examine judicial observations with a progressive lens. An F
explicit reference to the Lie-Detector tests was of course made
by the U.S. Supreme Court in the Schmerberdecision, 384 US
757 (1966), wherein Brennan, J. had observed, at p. 764:
"To compel a person to submit to testing in which an effort G
will be made to determine his guilt or innocence on the
basis of physiological responses, whether willed or not, is
to evoke the spirit and history of the Fifth Amendment."
160. Even though the actual process of undergoing a
H
552 SUPREME COURT REPORTS [2010) 5 S.C.R.
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
s investigators. These two tests are different from medical
examination and the analysis of bodily substances such as
blood, semen and hair samples, since the test subject's
physiological responses are directly correlated to mental
faculties. Through lie-detection or gauging a subject's familiarity
c 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 constructive sense. Therefore, even if a highly-
D strained analogy were to be made between the results obtained
from the impugned tests and the production of documents, the
weight of precedents leans towards restrictions on the
extraction of 'personal knowledge' through such means.
161. During the administration of a polygraph test or a
E 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
F 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'
G becomes irrelevant since the subject is compelled to convey
personal knowledge irrespective of his/her own volition .
. 162. Some academics have also argued that the results
obtained from tests such as polygraph examination are
'testimonial' acts that should come within the prohibition of the
H
SELVI & ORS. v. STATE OF KARNATAKA 553
[K.G. BALAKRISHNAN, CJI.]
right against self-incrimination. For instance, Michael S. Pardo A
(2008) has observed [Cited from: Michael S. Pardo, 'Seit-
Incrimination and the Epistemology of Testimony', 30 Cardozo
Law Review 1023-1046 (December 2008) at p. 1046):
"The results of polygraphs and other lie-detection tests,
B
whether they call for a voluntary response or not, are
testimonial because the tests are just inductive evidence
of the defendant'.s epistemic state. They are evidence that
purports to tell us either: (1).that we can or cannot rely on
the assertions made by the defendant and for which he has
represented himself to be an authority, or (2) what C
propositions the defendant would assume authority for and
would invite reliance upon, were he to testify truthful!y."
163. Ronald J. Allen and M. Kristin Mace (2004) have
offered a theory that the right against self-incrimination is meant ·o
to protect an individual in a situation where the State places
reliance on the 'substantive results of cognition'. The following
definition of 'cognition' has been articulated to explain this
position [Cited from: Ronald J. Allen and M. Kristin Mace, 'The
Self-Incrimination Clause explained and its future predicted', 94 E
Journal of Criminal Law and Criminology 243-293 (2004), Fn.
16 at p. 247):
"... 'Cognition' is used herein to refer to these intellectual
processes that allow one to gain and make use of
substantive knowledge and to compare one's 'inner world' F
(previous knowledge) with the 'outside world' (stimuli such
as questions from an interrogator). Excluded are simple
psychological responses to stimuli such as fear, warmness,
and hunger: the mental processes that produce muscular
movements; and one's will or faculty for choice .... " G
(internal citation omitted)
164. The above-mentioned authors have taken a
H
554 SUPREME COURT REPORTS [20.10] 5 S.C.R.
A hypothetical example where the inferences drawn from an
invofuntary polygraph test that did not require verbal answers,
led to the discovery of incriminating evidence. They have
argued that if the scope of the Fifth Amendment extends to
protecting the subject in respect of 'substantive results of
B cognition', then reliance on polygraph test results would violate
the said right. A similar conclusion has also been made by the
National Human Rights Commission, as evident from the
following extract in the Guidelines Relating to Administration
of Polygraph Tesj [Lie Detector Test] on an Accused (2000):
C "The extent and nature of the 'self-incrimination' is wide
enough to cover the kinds of statements that were sought
to be ir:iduced. In M.P. Sharma, AIR 1954 SC ~00, the
Supreme Court included within the protection of the self-
incrimination rule all positive volitional acts which furnish
D evidence. This by itself would have made all 'or any
interrogation impossible. The test - as stated in Kathi Kalu
Oghad (AIR 1961 SC 1808) - retains the requirement of
personal volition and states that 'self-incrimination' must
mean conveying information based upon the personal
E knowledge of the person giving information. By either test,
the information sought to be elicited in a Lie Detector Test
is information in the personal knowledge of the accused."
165. In light of the preceding discussion, we are of the view
F that the results obtained from tests such as polygraph
examination and the BEAP test should also be treated as
'personal testimony', since they are a means for 'impartirig
personal knowledge about relevant facts'. Hence. our conclusion
is that the results obtained through the involuntary administration
G 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).
II. Whether the involuntary administration of the
H
SELVI & ORS. v. STATE- OF KARNATAKA 555
[K.G. BALAKRISHNAN, CJI.]
impugned techniques is a reasonable restriction on A
'personal liberty' as understood in the context of Article
21 of the Constitution?
166. The preceding discussion does not conclusively
address the contentions before us. Article 20(3) protects a
B
person who is 'formally accused' of having committed an
offence or even a suspect or a witness who is questioned -
during an investigation in a criminal case. However, Article
20(3) is not applicable when a person gives his/her informed
consent to undergo any of the impugned tests. It has also been
described earlier that the 'right against self-incrimination' does C
not protect persons who may be compelled to undergo the tests
in the course of administrativ~ proceedings or any other
proceedings which may result in civil liability. It is also
conceivable that a person who is forced to undergo these tests
may not subsequently face criminal charges. In this context · D
Article 20(3) will not apply in situations where the test results
could become the basis of non-penal consequence_s for the
subject such as custodial abuse, police surveillance and
harassment among others.
E
167. In order to account for these possibilities, we must
examine whether the involuntary administration of any of these
tests is compatible with the constitutional guarantee of
'substantive due process'. The standard of 'substantive due
process' is of course the threshold for examining the validity of F
all categories of governmental action that tend to infringe upon
the idea of 'personal liberty. We will proceed with this inquiry
with regard to the various dimensions of 'personal liberty' as
understood in the context of Article 21 of the Constitution, which
lays down that:
G
'No person shall be deprived of his life and liberty except
according to procedure established by law'.
168. Since administering the impugned tests entails the
physical confinement of the subject, it is important to consider H
556 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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. However,
we have already explained how it would not be prudent to read
the explanation to Sections 53, 53-A and 54 of the CrPC in an
8 expansive manner so as to include the impugned techniques.
The second line of inquiry is whether the involuntary
administration of these tests offends certain rights that have
been read into Article 2'1 by way of judicial precedents. The
contentions before. us have touched on aspects such as the
C 'right to prjvacy' and the 'right against cruel, inhuman and
degrading treatment'. lThe third line of inquiry is structured
around the right to fair t~ial which is an essential component of
'personal liberty'.
169. There arelseveral ways in which the involuntary
D administration of either of the impugned tests could be viewed
as a restraint on 'personal liberty'. The most obvious indicator
of restraint is the use of physical force to ensure that an unwilling
person is confined to the premises where the tests are to be
cdnduqted. Furthermore, the drug-induced revelations or the
E" s-ubstantive 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
F 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.
170. We must also account for circumstances where a
G person who undergoes the said tests is subsequently exposed
to harmful consequences, though not of a penal nature. We
have already expressed our concern with situations where the
contents of the test results could prompt investigators to engage
in custodial abuse, surveillance or undue harassment. We have
H
SELVI & ORS. v. STATE OF KARNATAKA 557
[K.G. BALAKRISHNAN, CJI.]
also been apprised of some instances where the investigation A
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 8
addition to a 'trial by media'.
171. We must remember that the law does provide for
some restrictions on 'personal liberty' in the routine exercise
of police powers. For instance, the CrPC incorpora1es an
elaborate scheme prescribing the powers of arrest, detention,
c
interrogation, search and seizure. A fundamental premise of the
criminal justice system is that the police and the h.Jdiciary 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 medical examination D
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 E
· reasonableness'.
172. Both the appellants and the respondents have cited
cases involving the compelled extraction of blood samples in
a variety of settings. An analogy has been drawn between the · F
pin-prick of a needle for extracting a blood sample and the
intravenous administration of drugs such as sodium pentotllal:
Even though the extracted sample of blood is purely physical
evidence as opposed to a narcoanalysis interview where the
test subject offers testimonial responses, the comparison can
G
be sustained to examine whether puncturing the skin i,vith a
needle or an injection is an unreasonable restraint on 'personal
liberty'.
173. The decision given by the U.S. Supreme Court in.
H
558 SUPREME COURT REPORTS [2010] 5 S.C.R.
A Rochin v. California, 342 US 165 (1952), recognised the
threshold of 'conduct that shocks the conscience' for deciding
when the extraction of physical evidence offends the guarantee
of 'due process of law'. With regard to the facts in that case,
Felix Frankfurter, J. had decided that the extraction of evidence
B had indeed violated the same, Id. at pp. 172-173:
" ... we are compelled to conclude that the proceedings
by which this conviction was obtained do more than offend
some fastidious squeamishness or private sentimentalism
about combating crime too energetically. This is conduct
c that shocks the conscience. Illegally breaking into the
privacy of the petitioner, the struggle to open his mouth
arid remove what was there, the forcible e~raction of his
stomach's contents - this course of proceeding by agents
of government to obtain evidence is bound to offend even
D hardened sensibilities. They are methods too close to the
rack and the screw to permit of constitutional differentiation .
. . . Use of involuntary verbal confessions in State criminal
trials is constitutionally obnoxious not only because of their
E . unreliability. They are inadmissible under the Due Process
Clause even though statements contained in them may be
independently established as true. Coerced confessions
offend the community's sense of fair play and decency. So
here, to sanction the brutal conduct which naturally enough
F was condemned by the court whose judgment is before us,
would be to afford brutality the cloak of law. Nothing would
be more calculated to discredit law and thereby to brutalize
the temper of a society."
174. Coming to the cases cited before us, in State of
G Maharashtra v. Sheshappa Dudhappa Tambade, AIR 1964
Born 253, the Bombay High Court had upheld the
constitutionality of Section 129-A of the Bombay Prohibition
Act, 1949. This provision empowered prohibition officers and
police personnel to produce a person for 'medical examination',
H
SELVI & ORS. v. STATE OF KARNATAKA 559
[K.G. BALAKRISHNAN, CJI.]
which could include the collection of a blood sample. The said A
provision authorised the use of 'all means reasonably necessary
to secure the production of such person or the examination of
his body or the collection of blood necessary for the test'.
Evidently, the intent behind this provision was to enforce the
policy of prohibition on the consumption of intoxicating liquors. 8
Among other questions, the Court also ruled that this provision
did not violate Article 21. Reliance was placed on a decision
of the U.S. Supreme Court in Paul H. Breithaupt v. Morris
Abram, 352 US 432 (1957), wherein the contentious issue was
whether a conviction on the basis\ of an involuntary blood-test C
violated the guarantee of 'due process of law'. In deciding that
the involuntary extraction of the blood sample did not violate the
guarantee of 'Due Process of Law', Clark, J. observed, at pp.
435-437: '
" ... there is nothing 'brutal' or 'offensive' in the taking of a D
blood sample when done as in this case, under the
a
protective eye of physician. To be sure, the driver here
was unconscious when the blood was taken, but the
absence of conscious consent, without more, does not
necessarily render the taking a violation of a constitutional E
right and certainly the test administered here would not be
considere.Q offensive by even the most delicate.
Furthermore, ctue process is not measured by the
yardstick of persoriaLreaction or the sphygmogram of the
most seT1i::itive person, but by that whole community sense F
of 'decen"v and fairness' that has been woven by common
experjence into the fabric of acceptable conduct. It is on
t~is bedrock that this Court has established the concept
of due process. The blood test procedure has become
routine in our everyday life. It is a ritual for those going into G
the military service as well as those applying for marriage
licenses. Many colleges require such tests before
permitting entrance and literally millions of us have
voluntarily gone through the same, though a longer, routine
in becoming blood donors. Likewise, we note that a H
560 SUPREME COURT REPORTS [2010] 5 S.C.R.
A majority of our States have either enacted statutes in some
form authorizing tests of this nature or permit findings so
obtained to be admitted in evidence. We therefore
conclude that a blood test taken by a skilled technician is
not such 'conduct that shocks the conscience' [Rochin v.
8 California, 342 US 165, 172 (1952)], nor such a method
of obtaining ev4dence that it offends a 'sense ofjustice'
[Brown v. Mississippi, 297 US 278, 285 (1936)] ... "
175. In Jamshed v. State of Uttar Pradesh, 1976 Cri L J
1680 (All), the following observations were made in respect of
C a compulsory extraction of blood samples during a medical
examination (in Para 12):
"We are therefore of the view that there is nothing repulsive
or shocking to the conscience in taking the blood of the
D appellant in the instant case in order to establish his guilt.
So far as the question of causing hurt is concerned, even
causing of some pain may technically amount to hurt as
defined by Section 319 of the Indian Penal Code. But pain
might be caused even if the accused is subjected to a
E forcible medical examination. For example, in cases of
rape it may be necessary to examine the private parts of
the culprit. If a culprit is suspected to have swallowed some
stolen article, an emetic may be used and X-ray
examination may also be necessary. For such purposes
the law permits the use of necessary force. It cannot,
F
there.fore, be said that merely because ·some pain is
caused, such a procedure should not be permitted."
A similar view was taken in Ananth Kumar Naik v. State of
Andhra Pradesh, 1977 Cri L J 1797 (AP.), where it was held
G (in Para. 20):
" ... In fact S. 53 provides that while making such an
examination such force as is reasonably necessary for that
purpose may be used. Therefore, whatever discomfort that
H
SELVI & ORS. v. STATE OF KARNATAKA 561
[K.G. BALAKRISHNAN, CJI.]
may be caused when samples of blood and semen are A
taken from an arrested person, it is justified by the
provisions of Sections 53 and 54, CrPC."
We can also refer to the following observations in Ani/
Anantrao Lokhande v. State of Maharashtra, 1981 Cri L J 125 B·
(Born), (in Para. 30):
" ... Once it is held that Section 53 of the Code of Criminal
Procedure does confer a right upon the investigating
machinery to get the arrested persons medically examined
by the medical practitioner and the expression used in C
Section 53 includes in its import the taking of sample of
the blood for analysis, then obviously the said provision is
not violative of the guarantee incorporated in Article 21 of
the Constitution of India."
D
176. This 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, E
by law and hence it meets the threshold of 'procedure
established by law'. In this light, we must restate two crucial
considerations that are relevant for the case before us. Firstly,
the restrictions placed on 'personal liberty' in the course of
· administering the impugned techniques are not limited to
F
physical confinement and the extraction of bodily substances.
All the three techniques in question also involve testimonial
responses. Secondly, most of the above-mentioned cases were
decided in accordance with the threshold of 'procedure
established by law' for restraining 'personal liberty'. However,
in this case we must use a broader standard of G
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
H
562 SUPREME COURT REPORTS (2010] 5 S.C.R.
A cruel, inhuman or degrading treatment and the right to fair trial.
Applicability of the 'right to privacy'
177. In Sharda v. Dharampal, (supra.) this Court had
upheld the power of a civil court to order the medical
B examination of a party to a divorce proceeding. In that case,
the medical examination was considered necessary for
ascertaining the mental condition of one of the parties and it
was held that a civil court could direct the same in the exercise
of its inherent powers, despite the absence of an enabling
C provision. In arriving at this decision it was also considered
whether subjecting a person to a medical examination would
violate Article 21. We must highlight the fact that a medical test-
· tor ascertaining the mental condition of a·person is most likely
to be in the nature of a psychiatric evaluation which usually
D includes testimonial responses. Accordingly, a significant part
of that judgment dealt with the 'right to privacy'. It would- be
appropriate to structure the present discussion around extracts
from that opinion.
E 178. In M.P. Sharma (supra.), it had been noted that the
Indian Constitution did not explicitly include a 'right to privacy'
in a manner akin to the Fourth Amendment of the U.S.
Constitution. In that case, this distinction was one of the reasons
for upholding the validity of search warrants issued for
documents required to investigate charges of misappropriation
F and embezzlement. Similar issues were discussed in Kharak
Singh v. State of Uttar Pradesh, Al R 1963 SC 1295, where
the Court considered the validity of police-regulations that
authorised police personnel to maintain lists of 'history-
sheeters' in addition to conducting surveillance activities,
G domiciliary visits and periodic inquiries about such persons.
The intention was to monitor persons suspected or charged with
offences in the past, with the aim of preventing criminal acts in
the future. At the time, there was no statutory basis for these
regulations and they had been framed in the exercise of
H
SELVI & ORS. v. STATE OF KARNATAKA 563
[K.G. BALAKRISHNAN, CJI.]
administrative functions. The majority opinion (Ayyangar, J.) A
held that these regulations did not violate 'personal liberty',
except for those which permitted domiciliary visits. The other
restraints such as surveillance activities and periodic inquiries
about 'history-sheeters' were justified by observing, at Para.' 20:
B
" ... the right of privacy is not a guaranteed right under our
Constitution and therefore the attempt to ascertain the
movements of an individual which is merely a manner in
which privacy is invaded is not an infringement of a
fundamental right guaranteed by Part Ill."
c
179. Ayyangar, J. distinguished between surveillance
activities conducted in the routine exercise of police powers
and the specific aCt of unauthorised intrusion into a person's
home which violated 'personal liberty'. However, the minority
opinion (Subba Rao, J.) in Kharak Singh took a different D
approach by recognising the interrelationship between Article
21 and 19, thereby requiring the State to demonstrate the
'reasonableness' of placing such restrictions on 'personal
liberty' [This approach was later endorsed by Bhagwati, J. in
Maneka Gandhi v. Union of India, AIR 1978 SC 597, see p. E
622]. Subba Rao, J. held that the right to privacy 'is an essential
ingredient of personal liberty' and that the right to 'personal
liberty is 'a right of an individual to be free from restrictions or
encroachments on his person, whether those restrictions or
encroachments are directly imposed or indirectly brought about F
by calculated measures.' [AIR 1963 SC 1295, at p. 1306]
180. In Gobind v. State of Madhya Pradesh, (1975) 2
sec 148, the Supreme Court approved of some police-
regulations that provided for surveillance -activities, but this time
the decision pointed out a clear statutory basis for these G
regulations. However, it was also ruled that the 'right to privacy'
was not an absolute right. It was held, at Para. 28:
"The right to privacy-in any event will necessarily have to
go through a process of case-by-case development. H
564 SUPREME COURT REPORTS [2010] 5 S.C.R.
A Therefore, even assuming that the right to personal liberty,
the right to move freely throughout the territory of India and
the freedom of speech create an independent right of
privacy as an emanation from tttem which one can
characterize as a fund(lmental right, we do not think that
B the right is absolute."
... Assuming that the fundamental right exR[,icitly
guaranteed to a citizen have penumbra! zones and t(lat the
righJJo privacy is itself a fundamental right, that fundamental
right m~be subject to restriction on the basis of
c compelling public interest."
(at p. 157, Para. 31)
181. Following the judicial expansion of the idea of
D 'personal liberty', the status of the 'right to privacy' as a
component of Article 21 has been recognised and re-inforced.
In R. Raj Gopal v. State of Tamil Nadu, (1994)
7
6 SCC 632,
this Court dealt with a fact-situation where a convict intended
to publish his autobiography which described the involvement
E of some politicians and businessmen in illegal activities. Since
the publication of this work was challenged ,on grounds such as
the invasion of privacy among others, the Court ruled on the said
issue. It was held that the right to privacy c-ould be described
as the 'right to be let alone and a citizen has the right to
safeguard the privacy of his own, his family, marriage,
F pr9creation, motherhood, child-bearing
' and education among ·
others. No one can publish anything concerning the above
matters without his consent whether truthful or otherwise and
whether laudatory or critical': However, it was also ruled that
exceptions may be made if a person voluntarily thrusts himself
G into a controversy or any of these matters becomes part of
public records or relates to an action of a public official
concerning the discharge of his official duties.
182. In People's Union for Civil Liberties v. Union of India,
H
SELVI & ORS. v. STATE OF KARNATAKA 565
[K.G. BALAKRISHNAN, CJI.]
AIR 1997 SC 568, it was held that the unauthorised tapping of A
telephones by police personnel violated the 'right to privacy' as
contemplated under Article 21. However, it was not stated that
telephone-tapping by the police was absolutely prohibited,
presumably ~ecause the same may be necessary in some
circumstances to prevent criminal acts and in the course of B
investigation. Hence, such intrusive practices are permissible
if done under a proper legislative mandate that regulates their
use. This intended balance between an individual's 'right to
privacy' and 'compelling public interest' has frequently occupied
judicial attention. Such a compelling public interest can be c
identified with the need to prevent crimes and expedite
investigations or to protect public health or morality.
183. For example, in Xv. Hospital Z, (1998) 8 SCC 296,
it was held that a person could not invoke his 'right to privacy'
to prevent a doctor from disclosing his HIV-positive status to D
others. It was ruled that in respect of HIV-positive persons, the
duty of confidentiality between the doctor and patient could be
compromised in order to protect the health of other individuals.
With respect to the facts in that case, Saghir Ahmad, J. held,
at Para. 26-28: E
" ... When a patient was found to be HIV(+), its disclosure
by the Doctor could not be violative of either the rule of
confidentiality or the patient's right of privacy as the lady
with whom the patient was likely to be married was saved F
in time by such disclosure, or else, she too would have
been infected with a dreadful disease if marriage had
taken place and been consummated."
184. However, a three judge bench partly overruled this
decision in a review petition. In Xv. Hospital Z, (2003) 1 SCC G
500, it was held that if an HIV-positive person contracted
marriage with a willing partner, then the same would not
constitute the offences defined by Sections 269 and 270 of the
Indian Penal Code. [Section 269 of the IPC defines the offence
H
566 SUPREME COURT REPORTS (2010) 5 S.C.R.
A of a 'Negligent act likely to spread infection of disease
dangerous to life' and Sectiorl 270 contemplates a 'Malignant
act likely to spread infection of.disease dangerous to life'.] A
similar question was addressed by the Andhra Pradesh High
Court in M. Vijaya v. Chairman and Managing Director,
B Singareni Collieries Co. Ltd., AIR 2001 AP 502, at pp. 513-
514:
"There is an apparent conflict between the right to privacy
of a person suspected of HIV not to submit himself forcibly
for medical examination and the power and duty of the
c State to identify HIV-infected persons for the purpose of
stopping further transmission of the virus. In the interests
of the general public, it is nece.ssary for the State to identify
HIV-positive cases and any action taken in that regard
cannot be termed as unconstitutional as under Article 47
D of the Constitution, the State was under an obligation to
take all steps for the improvement of the public health. A
law designed to achieve this object, if fair and reasonable,
in our opinion, will not be in breach of Article 21 of the
Constitution of India .... "
E
185. The discussion on the 'right to privacy' in Sharda v.
Dharampal, (supra.) also cited a decision of the Coart of
Appeal (in the U.K.) in R (on the application of SJ v. Chief
1
Constable of South Yorkshire, (2003) 1 All ER 148 (CA). The
F contentious issues arose in respect, of the retention of
fingerprints and DNA samples taken frbm persons who had
been suspected of having committed offences in the past but
were not convicted for them. It was argued that this policy
violated Articles 8\and 14 of the European Convention on
Human Rights and Fundamental Freedoms, 1950 [Hereinafter
G 'EctHR]. Article 8 deals with the 'Right to respect for private and .
family life' while Article 14 lays down the scope of the
'Prohibition Against Discrimination'. For the present
discussion, it will be useful to examine the language of Article
8 of the EctHR:-
H
SELVI & ORS. v. STATE OF KARNATAKA 567
[K.G. BALAKRISHNAN, CJI.]
Article 8 ~ Right to respect,Jor private and family life A
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There,shall be no interference by a public authority with
the exercise of this right except such as is in accordance B
with th~ law and is necessary in-a democratic society in
the interests of national security, -public safety or the
economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others. C
186. In that case, a distinction was drawn between the
'taking', 'retention' and 'use' of fingerprints and DNA samples.
While the 'taking' of such samples from individual suspects
could be described as a reasonable measure in the course of D
routine police functions, the controversy arose with respect to
the 'retention' of samples taken from individuals who had been
suspected of having committing offences in the past but had
not been convicted for them. The statutory basis for the retention
of physical samples taken from suspects was Section 64(1A)
of the Police and Criminal Evidence Act, 1984. This provision E
also laid down that these samples could only be used for
purposes related to the 'prevention or detection of crime, the
investigation of an offence or the conduct of a prosecution'. This
section had been amended to alter the older position which
provided that physical samples taken from suspects were F
meant to be destroyed once the suspect was cleared of the
charges or acquitted. As per the older position, it was only the
physical samples taken from convicted persons which could be
retained by the police authorities. It was contended that the
amended provision was incompatible with Articles 8 and 14 of G
the EctHR and hence the relief sought was that the fingerprints
and DNA samples of the concerned parties should be
destroyed.
187. In response to these contentions, the majority (Lord H
568 SUPREME COURT REPORTS [2010] 5 S.C.R.
A Woolf, C.J.) held that although the retention of such material
interfered with the Art. 8(1) rights of the individuals ('right to
respect for private and family life') from whom it had been
taken, that interference was justified by Art. 8(2). It was further
reasoned that the purpose of the impugned amendment, the
8 language of which was very similar to Art. 8(2), was obvipus
and lawful. Nor were the adverse consequences to the
individual disproportionate to the benefit to the public. It was
held, at Para. 17:
"So far as the prevention and detection of crime is
c concerned, it is obvious the larger the databank of
fingerprints and DNA samples available to the police, the
grea.ter the value of the databank will be in _preventing
crime and detecting those responsible for crime. There can
be no doubt that if every member of the public was
D required to provide fingerprints and a DNA sample this ·
would make a dramatic contribution to the prevention and
detection of crime. To take but one example, the great
majority of rapists who are not known already to their victim
would be able to be identified. However, the 1984 Act does
E not contain blanket provisiohs either as to the taking, the
retention, or the use of fingerprints or samples; Parliament
has decided upon a balanced approach."
Lord Woolf, C.J. also referred to the following observations
F made by Lord Steyn in an earlier decision of the House of
Lords, which was reported as Attorney General's Reference
(No. 3 of 1999), (2001) 1 All ER 577, at p. 584:
"... It must be borne in mind that respect for theiprivacy of
defendants is not the only value at stake. The purpose of
G the criminal law is to permit everyone to go about their daily
lives without fear of harm to person or property. And it is
in the interests of everyone that serious crime fShould be
effectively investigated and prosecuted. There must be
fairness to all sides. In a criminal case this requires the
H
SELVI & ORS. v. STATE OF :~RNATAKA 569
[K.G. BALAKRISHNAN, CJI.]
court to consider a triangulation of interests. It involves A
taking into account the position of the accused, the victim
and his or her family, and the publrc."
On the question of whether the retentic,n of material samples
collected from suspects who had not been convicted was 8
violative of the 'Prohibition against Discrimination' under Art.
14 of the EctHR, it was observed, (2003) 1 All ER 148 (CA),
at p. 162:
"In the present circumstances when an offence is being
investigated or is the subject of a charge it is accepted C
that fingerprints and samples may be taken. Where they
have not been taken before any question of the retention
arises, they have to be· taken so there would be the
additional interference with their rights which the taking
involves. As no harmful consequences will flow from the D
retention unless the fingerprints or sample match those of
someone alleged to be responsible for an offence, the
different treatment is fully justified."
188. In the present case, written submissions made on E
behalf of the respondents have tried to liken the compulsory
administration of the impugned techniques with the DNA
profiling technique. In light of this attempted analogy, we must
stress that the DNA profiling technique has been expressly
included among the various forms of medical examination in
F
the amended explanation to Sections 53, 53-A and 54 of the
CrPC. It must also be clarified that a 'DNA profile' is different
from a DNA sample which can be obtained from bodily
substances. A DNA profile is a record created on the basis of
DNA samples made available to forensic experts. Creating and
maintaining DNA profiles of offenders and suspects are useful G
practices since newly obtained DNA samples can be readily
matched with existing profiles that are already in the
possession of law-enforcement agencies. The matching of DNA
samples is emerging as a vital tool for linking suspects to
specific criminal acts. It may also be recalled that the as per H
570 SUPREME COURT REPORTS [2010] 5 S.C.R.
A .the majority decision in Kathi Ka/u Oghad, (supra.) the use of
material samples such as fingerprints for the purpose of
comparison and identification does not amount to a testimonial
act for the purpose of Article 20(3). Hence, the taking and
retention of DNA samples which are in the nature of physical
B evidence does not face constitutional hurdles in the Indian
context. However, if the DNA profiling technique is further
developed and used for testimonial purposes, ther:i such uses
in the future could face challenges in the judicial .domain.
189. The judgment delivered in Sharda v. Dharampal,
C (supra.) had surveyed the above-mentioned decisions to
conclude that a person's right to privacy could be justifiably
curtailed if it was done .in light of competing interests.
Reference was also made to some statutes that permitted the
compulsory administration of medical tests. For instance, it was
D observed, at Para. 61-62:
"Having outlined the law relating to privacy in India, it is
relevant in this context to notice that certain laws have
been enacted by the Indian Parliament where the accused
E may be subjected to certain medical or other tests.
By way of example, we may refer to Sections 185, '202,
203 and 204 of the Motor Vehicles Act, Sections 53 and
54 of the Code of Criminal Procedure and Section 3 of
the Identification of Prisoners Act, 1920. Reference in this
F connection may also be made to Sections 269 and 270
of the Indian Penal Code. Constitutionality of these laws,
if challenge is thrown, may be upheld."
190. However, it is important for us to distinguish between
G the considerations that occupied this Court's attention in-Sharda-
v. Dharampal, (supra.) and the ones that we are facing in the
present case. It is self-evident that the decision did not to dwell
on the distinction between medical tests whose results are
based on testimonial responses and tho:>e tests whose results
H
SELVI & ORS. v. STATE OF KARNATAKA 571
[K.G. BALAKRISHNAN, CJI.]
are based on the analysis of physical characteristics and bodily A
substances. It can be safely stated that the Court did not touch
on the distinction between testimonial acts and physical
evidence, simply because Article 20(3) is not applicable to a
proceeding of a civil nature.
B
191. Moreover, a distinction must be made between the
character of restraints placed 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 reasonable force for subjecting a person to a
medical examination, it is not viable to extend these police C
powers to the forcible extraction of testimonial responses. In
conceptualising the 'right to privacy' we must highlight the
distinction between privacy in a physical sense and the privacy
of one's mental processes.
D
192. So far, the judicial understanding of privacy in our
country has mostly stressed on the protection of the body and
physical spaces from intrusive actions by the State. While the
scheme of criminal procedure as well as evidence law
mandates interference with physical privacy through statutory E
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 F
of 'personal liberty' under Article 21. Hence, our understanding
of the 'right to privacy' should account for its intersection with
Article 20(3). Furthermore, the 'rule against involuntary
confessions' as embodied in Sections 24, 25, 26 and 27 of
the Evidence ,Act, 1872 seeks to serve both the objectives of G
reliability as well as voluntariness of testimony given in a
custodial setting. A conjunctive reading of Articles 20(3) and
21 of the Consti~ution along with the principles of evidence law
leads us to a cle'<;lr answer. We must recognise the importance
of personal autonomy in aspects such as the choice between
H
572 SUPREME COURT REPORTS [2010] 5 S.C.R.
A remaining silent and speaking. An individual's decisicm to make
a statement is the product of a private choice and th¢re should
be no scope for any other individual to interfere \Nith such
autonomy, especially in circumstances where the per'son faces
exposure to criminal charges or penalties.
B
193. Therefore, it is our considered opinion that subjecting
a person to the impugned techniques in an involuntary manner
violates the prescribed boundaries of privacy. Forcible
interference with a person's mental processes is not provided
for under any statute·and it most certainly comes into conflict
C with the 'right against self-incrimination'. However, this
determination does not account for circumstances where a
person could be subjected to any of the imp1.1gned tests but not
exposed to criminal charges and the possibility of conviction.
In such cases, he/she could still face adverse consequences
D such as custodial abuse, surveillance, undue har-a$sment and
social stigma among others. In order to address such
circumstances, it is important to examine some other
dimensions of Article 21.
E Safeguarding the 'right against cruel, inhuman or
degrading treatment'
194. We will now examine whether the act of forcibly
subjecting a person to any of the impugned techniques
F constitutes 'cruel, inhuman or degrading treatment', when
considered by itself. This inquiry will account for the
permissibility of these techniques in all settings, including those
where a person may not be subsequently prosecuted but could
face adverse consequences of a non-penal nature. The
appellants have contended that the use of the impugned
G techniques amounts to 'cruel, inhuman or degrading treatment'.
Even though the Indian Constitution does not explicitly
enumerate a protection-againsf 'cruel, inhuman or degrading
punishment or treatment' in a manner akin to the Eighth
Amendment of the U.S. Constitution, this Court has discussed
H
SELVI & ORS. v. STATE OF KARNATAKA 573
[K.G. BALAKRISHNAN, CJI.]
this aspect in several cases. For example, in Suni/ Batra v. A
Delhi Administration, (1978) 4 SCC 494, V.R. Krishna Iyer, J.
observed at pp. 518-519:
"True, our Constitution has no 'due process' clause or the
VIII Amendment; but, in this branch of law, after Cooper 8
[(1970) 1 SCC 248] and Maneka Gandhi; [(1978) 1 SCC
248] the consequence is the same. For what is punitively
outrageous, scandalizingly unusual or cruel and
rehabilitatively counter-productive, is unarguably
unreasonable and arbitrary and is shot down by Article 14
and 19 and if inflicted with procedural unfairness falls foul C
of Article 21. Part Ill of the Constitution does not part
company with the prisoner at the gates, and judicial
oversight protects the prisoner's shrunken fundamental
rights, if flouted, frowned upon or frozen by the prison
authority. Is a person under death sentence or undertrial D
unilaterally dubbed dangerous liable to suffer extra torment
too deep for tears? Emphatically no, lest social justice,
dignity of the individual, equality before the law, procedure
established by law and the seven lamps of freedom (Article
19) become chimerical constitutional claptrap. Judges, E
even within a prison setting, are the real, though restricted,
ombudsmen empowered to proscribe and prescribe,
humanize and civilize the life-style within the careers. The
operation of Articles 14, 19 and 21 may be pared down
for a prisoner but not puffed out altogether ..... " F
195. In the above-mentioned case, this Court had
disapproved of practices such as solitary-confinement and the
use of bar-fetters in prisons. It was held that prisoners were also
entitled to 'personal liberty' though in a limited sense, and G
hence judges could enquire into the reasonableness of their
treatment by prison-authorities. Even though 'the right against
cruel, inhuman and degrading punishment' cannot be asserted
in an absolute sense, there is a sufficient basis to show that
Article 21 can be invoked to protect the 'bodily integrity and
H
574 SUPREME COURT REPORTS [2010] 5 S.C.R.
A dignity' of persons who are in custodial environments., This
protection extends not only to prisoners who are convict~ and
under-trials, but also to those persons who may be arrested or
detained in the course of investigations in criminal cases.
Judgments such as D.K. Basu v. State of West Bengal, AIR
B 1997 SC 610, have stressed upon the importance of
preventing the 'cruel, inhuman or degrading treatment' of any
person who is taken into custody. In respect of the present case,
any person who is forcibly subjected to the impugned tests in
the environs of a forensic laboratory or a hospital would be
c effectively in a custodial environment for the same. The
presumption of the person being in a custodial environment will
apply irrespective of whether he/she has been formally accused
or is a suspect or a. witness. Even if there is no overbearillg,,
police presence, the fact of physical confinement and the
0 involuntary administration of the tests is sufficient to cons!itute
a custodial environment for the purpose of attracting Article
20(3) and Article 21. It was necessary to clarify this aspect
because we are aware of certain instances where persons are
questioned in the course of investigations without being brought
on the record as witnesses. Such omissions on part of
E investigating agencies should not be allowed to become a
ground for denying the protections that are available to a person
in custody.
196. The appellants have also drawn our attention to some
F international conventions and declarations. For instance in the
Universal Declaration of Human Rights [GA Res. 217 A (Ill) of
December 10 1948], Article 5 states that:
"No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment."
G
Article 7 of the International Covenant on Civil and Political
Rights (ICCPR) [GA Res. 2200A (XX.I), entered into force March
23, 1976] also touches on the same aspect. It reads as follows:
/
H " ... No one shall be subjected to torture or to cruel, inhuman
SELVI & ORS. v. STATE OF KARNATAKA ~75
[K.G. BALAKRISHNAN, CJI.]
or degrading treatment or punishment. In particular, no one A
shall be subjected without his free consent to medical or
scientific experimentation."
Special emphasis was placed on the definitions of 'torture' as
well as 'cruel, inhuman or degrading treatment or punishment'
8
in Articles 1 and 16 of the Convention Against Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
Article 1
1. For the purposes of this Convention, torture means any c
act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person
information or a confession, punishing him for an, act he
or a third person has committed or is suspected of having 0
committed, or intimidating or coercing him or a third
person, or for ,any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.
E
It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international
instrument or national legislation which does or may
contain provisions of wider application. F
Article 16
1. Each State Party shall undertake to prevent in any
territory under its jurisdiction other acts of cruel, inhuman
or degr~ding treatment or punishment which do not G
amount to torture as defined in Article 1, when such acts
are committed by or at the instigation of or with the consent
or acquiescence of a public official or other person acting
in an official capacity. In particular, the obligations
H
576 SUPREME COURT REPORTS [2010) 5 S.C.R.
A contained in Article 10, 11 , 12 and 13 shall apply with the .
substitution for references to torture or references to other
forms of cruel, inhuman or degrading treatment or
punishment.
2. The provisions of this Convention are without prejudice
B
to the provisions of any other international instrull')ent or
national law which prohibit cruel, inhuman or degrading
treatment or punishment or which relate to extradition or
expulsion.
C 197. We were also alerted to the 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) which have been adopted by the United
Nations General Assembly. Principles 1, 6 and 21 hold
D relevance for us:
Principle 1
All persons under any form of detention or imprisonment
shall be treated in a humane manner and with respect for
E the inherent dignity of the human person.
Principle 6
No person under any form of detention. or imprisonment
shall be subjected to torture or to cruel, inhuman or
F
degrading treatment or punishment. No circumstance
whatever may be invoked as a justification for torture or
other cruel, inhuman or degrading treatment or punishment.
The term 'cruel, inhuman or degrading treatment or
G punishment' should be interpreted so as to extend. the
widest possible protection against abuses, whether
physical or mental, including the holding of a detained or
imprisoned person in conditions which deprive him,
temporarily or permanently, of the use of any of his natural
H
SELVI & ORS. v. STATE OF KARNATAKA 577
[K.G. BALAKRISHNAN, CJI.]
senses, such as sight or hearing, or of his awareness of A
place and the passing of time. ·
Principle 21
1. It shall be prohibited to take undue advantage of the
situation of a detained or imprisoned person for the B
purpose of compelling him to confess, to
incriminate himself otherwise or to testify against
any other person.
2. No detained person while being interrogated shall c
be subjected to violence, threats or methods of
interrogation which impair his capacity of decision
or judgment.
198. It was shown that protections against torture and
'cruel, inhuman or degrading treatment or punishment' are D
accorded to persons who are arrested or detained in the course
of armed conflicts between nations. In the Geneva Convention
relative to the Treatment of Prisoners of War (entry into force
21 October 1950) the relevant extract reads:
E
Article 17
... No physical or mental torture, nor any other form of
coercion, may be inflicted on prisoners of war to secure
from them information of any kind whatever. Prisoners of F
war who refus~ to answer may not be threatened, insulted,
or exposed to any unpleasant or disadvantageous
treatment of any kind ....
199. Having surveyed these materials, it is necessary to
clarify that we are not absolutely bound by the contents of the G
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. (1984) [Hereinafter
'Torture Convention'] This is so because even though India is
a signatory to this Convention, it has not been ratified by
H
578 SUPREME COURT REPORTS [2010] 5 S.C.R.
A Parliament in the manner provided under Article 253 of the
Constitution and neither do we have a national legislation which
has provisions analogous to those of the Torture Convention.
However, these materials do hold significant persuasive value
since they represent an evolving international consensus on the
8 nature and specific contents of human rights norms.
200. The definitibn of torture indicates that the threshold
for the same is the intentional infliction of physical or mental
pain and suffering, by or at the instance of a public official for
the purpose of extracting information or confessions. 'Cruel,
C Inhuman or Degrading Treatment' has been defined as conduct
that does not amount to torture but is wide enough to cover all
kinds of abuses. Hence, proving the occurrence of 'cruel,
inhuman or degrading treatment' would require a lower
threshold than that of torture. In addition to highlighting these
D definitions, the counsel for the appellants have submitted that
causing physical pain by injecting a drug can amount to 'Injury'
as defined by Section 44 of the IPC or 'Hurt' as defined in
Section 319 of the same Code.
E 201. In response, the counsel for the respondents have
drawn our attention to literature which suggests that in the case
of the impugned techniques, the intention on part of the
investigators is to extract information and not to inflict any pain
or suffering. Furthermore, it has peen contended that the actual
F administration of either the narcoanalysis technique, polygraph
examination or the BEAP test does not involve a condemnable
degree of 'physical pain or suffering'. Even though some
physical force may be used or threats may be given to compel
a person to undergo the tests, it was argued that the
administration of these tests ordinarily does not result in
G physical injuries. [See: Linda M. Keller, 'Is Truth Serum Torture?'
20 American University International Law Review 521-612
(2005)] However, 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
H the subject to physical abuse. When a person undergoes a·
SELVI & ORS. v. STATE OF KARNATAKA 579
[K.G. BALAKRISHNAN, CJI.]
narcoanalysis test, he/she is in a half-conscious state and . A
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 not immediately know the nature and
implications of the results derived from the same. However, B
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 used to prosecute other individuals. We
have also highlighted the likelihood of a person making
incriminatory statements when he/she is subsequently C
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 D
act. For a person in custody, such confirmations could lead to
specifically targeted behaviour such as physical abuse. In this
regard, we have repeatedly expressea our concern with
situations where the test results could trigger undesirable
behaviour. E
202. We must also contemplate situatiens 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 F
individuals 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 G
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 H
580 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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
voluntariness of the act of undergoing the tests, but also includes
B an examination of the totality of circumstances.
203. Such a possibility had been outlined by the National
Human Rights Commission which had published 'Guidelines
relating to administration of Polygraph test (Lie Detector test)
on an accused (2000)'. The relevant extract has been
C reproduced below:
"... The lie detector test is much too invasive to admit of
the argument that the authorify for Lie Detector tests comes
from the general power to interrogate and answer
D questions or make statements. (Ss. 160-167 CrPC)
However, in India we must proceed on the assumption of
constitutional invasiveness and evidentiary
impermissiveness to take the view that such holding of tests
is a prerogative of the individual, not an empowerment of
E the police. In as much as this invasive test is not authorised
by law, it must perforce be regarded as illegal and
unconstitutional unless it is voluntarily undertaken under
non-coercive circumstances. If the police action of
conducting a lie detector test is not authorised by law and
impermissible, the only basis on which it could be justified
F
is, if it is volunteered. There is a distinction between: (a)
volunteering, and (b) being asked to volunteer. This
distinction is of some significance in the light of the
statutory and constitutional protections available to any
person. There is a vast difference between a person
G saying, 'I wish to take a lie detector test because I wish to
clear my name', and when a person is told by the police,
'If you want to clear your name, take a lie detector test'. A
still worse situation would be where the police say, 'Take
a lie detector test, and we will let you go'. In the first
H
SELVI & ORS. v. STATE OF KARNATAKA 581
[K.G. BALAKRISHNAN, CJI.]
example, the person voluntarily wants to take the test. It A
would still have to be examined whether such volunteering
was under coercive circumstances or not. In the second
and third examples, the police implicitly (in the second
example) and explicitly (in the third example) link up the
taking of the lie detector test to allowing the accused to B
go free."
204. We 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 C
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 D
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 E
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, the subject speaks in a drug-
induced state and is clearly not aware of his/her own responses F
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 G
cannot exercise an effective choice between remaining silent
and imparting personal knowledge. In light of these facts, it was
contended that a presumption cannot be made about the
voluntariness of the test results even if the subject had given
prior consent. In this respect, we can re-emphasize Principle H
582 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 6 and 21 of the Body of Principles for the Protection of all
persons under any form of Detention or Imprisonment (1988).
The explanation to Principle 6 provides that:
"The term 'cruel, inhuman or degrading treatment or
punishment' should be interpreted so as to extend the
B
widest possible protection against abuses, whether
physical or mental, including the holding of a detained or
imprisoned person in conditions which deprive him,
temporarily or permanently, of the use of any of his natural
senses, such as sight or hearing, or of his awareness of
c place and the passing of time."
Furthermore, Principle 21 (2) lays down that:
"No detained person while being interrogated shall be
0 subjected to violence, threats or methods of interrogation
which impair his capacity of decision or judgment."
205. 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
E techniques can be described as methods of interrogation which
impair the test subject's 'capacity of decision or judgment'.
Going by the language of these principles, we hold that the
compulsory administration of the impugned techniques
constitutes 'cruel, inhuman or degrading treatment' in the
F 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
G associated with gory images of blood-letting and broken bones.
However, we 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. [A
similar conclusion has been made in the following paper: Marcy
H Strauss, 'Criminal Defence in the Age of Terrorism - Torture',
SELVI & ORS. v. STATE OF KARNATAKA 583
[K.G. BALAKRISHNAN, CJI.]
48 New York Law School Law Review 201-274 (2003/2004)] A
206. 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
8
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' is permitted in the medical field, it should also be
tolerated for the purpose of expediting investigations in criminal C
cases. This is the point where our constitutional values step in.
A society governed by rules a_nd 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 D
punishrnents for va~ious offences, the same cannot be extended
to all those who are questioned during the course of an
investigation. Allowing the same would vest unlimited discretion
and lead to the disproportionate exercise of police powers.
E
Incompatibility with the 'Right to fair trial'
207. The respondents' position is that the compulsory
administration of the impugned techniques should be permitted
at least for investigative purposes, and if the test results lead
to the discovery of fresh evidence. then these fruits should be F
admissible. We have already explained in light of the
conjunctive reading of Article 20(3) of the Constitution and
Section 27 of the Evidence Act, that if the fact of compulsion is
proved, the test results will not be admissible as evidence.
However, for the sake of argument, if we were to agree with G
the respondents and allow investigators to compel individuals
to undergo these tests, it would also affect some of the key
components of the 'right to fair trial'.
208. The decision of this Court in O.K f:)asu v. State of H
584 SUPREME COURT REPORTS (2010] 5 S.C.R.
A West Bengal, AIR 1997 SC 610, had stressed upon the
entitlement of a person in custody to consult a lawyer. Access
to legal advice is an essential safeguard so that an individual
can be adequately apprised of his constitutional and statutory
rights. This is also a measure which checks custodial abuses.
B However, the involuntary administration of any of the impugned
tests can lead to a situation where such legal advice becomes
ineffective. For instance even if a person receives the best of
legal advice before undergoing any of these tests, it cannot
prevent the extraction of information which may prove .to be
c inculpatory by itself or lead to the subsequent discovery of
incriminating materials. Since the subject has no conscious
control over the drug-induced revelations or substantive
inferences, the objective of. providing access to legal advice are
frustrated.
D 209. Since the subject is not immediately aware of the
contents of the drug-induced revelations or substantive
inferences, it also conceivable that the investigators may chose
not to communicate them to the subject even after completing
the tests. In fact statements may be recorded or charges framed
E without the knowledge of the test subject. At the stage of trial,
the prosecution is obliged to supply copies of all incriminating
materials to the defendant but reliance on the impugned tests
could curtail the opportunity of presenting a meaningful and
wholesome defence. If the contents of the revelations or
F inferences are communicated much later to the defendant,
there may not be sufficient time to prepare an adequate
defence.
210. E3rlier in this judgment, we had surveyed some
G foreign judicial precedents dealing with each of the tests. in
question. A common concern expressed with regard to each
of these techniques was the questionable reliability of the
results generated by them. In respect of the narcoanalysis
technique, it was observed that there is no guarantee that the
drug-induced revelations will be truthful. Furthermore, empirical
H
SELVI & ORS. v. STATE OF KARNATAKA 585
[K.G. BALAKRISHNAN, CJI.]
studies have shown that during the hypnotic stage, individuals A
are prone to sugnestibility and there is a good chance that false
results could lead to a finding of guilt or innocence. As far as
polygraph examination is concerned, though there are some
studies showing improvements in the accuracy of results with
advancement in technology, there is always scope for error on B
account of several factors. Objections can be raised about the
qualifications of the examiner, the physical conditions under
which the test was conducted, the manner in which questions
were framed and the possible use of 'countermeasures' by the
test subject. A significant criticism of polygraphy is that c
sometimes the physiological responses triggered by feelings
such as anxiety and fear could be misread as those triggered
by deception. Similarly, with the P300 Waves test there are
inherent limitations such as the subject having had 'prior
exposure' to the 'probes' which are used as stimuli.
0
Furthermore, this technique has not been the focus of rigorous
independent studies. The questionable scientific reliability of
these techniques comes into conflict with the standard of proof
'beyond reasonable doubt' which is an essential feature of
criminal trials.
E
211. Another factor that merits attention is the role of the
experts who administer these tests. While the consideration of
expert opinion testimony has become a mainstay in our criminal
justice system with the advancement of fields such as forensic
toxicology, questions have been raised about the credibility of F
experts who are involved in administering the impugned
techniques. It is a widely accepted principle for evaluating the
validity of any scientific technique that it should have been
subjected to rigorous independent studies and peer review. This
is so because the persons who are involved in the invention and G
development of certain techniques are perceived to have an
interest in their promotion. Hence, it is quite likely that such
persons may give unduly favourable responses about the
reliability of the techniques in question.
H
586 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 212. Even though India does not have a jury system, the
use of the impugned techniques could impede the fact-finding
role of a trial judge. This is a special concern in our legal
system, since the same judge presides over the evidentiary
phase of the trial as well as the guilt phase. The consideration
B of the test results or their fruits for the purpose of deciding on
their admissibility could have a prejudicial effect on the judge's
mind even if the same are not eventually admitted as evidence.
Furthermore, we echo the concerns expressed by the Supreme
Court of Canada in R v. Beland, [1987] 36 C.C.C. (3d) 481,
c where it was observed that reliance on scientific techniques
could cloud human judgment on account of an 'aura of
infallibility'. While judges are expected to be impartial and
objective in their evaluation of evidence, one can never discount
the possibility of undue public pressure in some cases,
especially when the test results appear to be inculpatory. We
0
have already expressed concerns with situations where media
organisations have either circulated the video-recordings of
narcoanalysis interviews or broadcasted dramatized re-
constructions, especially in sensational criminal cases.
E 213. Another important consideration is that of ensuring
parity between the procedural safeguards that are available to
the prosecution and the defence. If we were to permit the
compulsory administration of any of the impugned techniques
at the behest of investigators, there would be no principled
F basis to dP-ny the same opportunity to defendants as well as
witnesses. If the investigators could justify reliance on these
techniques, there would be an equally compelling reason to
allow the indiscrete administration of these tests at the request
of convicts who want re-opening of their cases or even for the
G purpose of attacking and rehabilitating the credibility of
witnesses during a trial. The decision in United States v.
Scheffer, 523 US 303 (1998), has highlighted the concerns with
encouraging litigation that is collateral to the main facts in issue.
We are of the view that an untrammelled right of resorting to
H
SELVI & ORS. v. STATE OF KARNATAKA 587
[K.G. BALAKRISHNAN, CJI.]
the techniques in question will lead to an unnecessary rise in A
the volume of frivolous litigation before our Courts.
214. Lastly, we must consider the possibility that the victims
of offences could be forcibly subjected to any of these
techniques during the course of investigation. We have already 8
highlighted a provision in the Laboratory Procedure Manual for
Polygraph tests which contemplates the same for ascertaining
the testimony of victims of sexual offences. In light of the
preceding discussion, it is our view that irrespective of the need
to expedite investigations in such cases, no person who is a C
victim of an offence can be compelled to undergo any of the
tests in question. Such a forcible administration would be an
unjustified intrusion into .mental privacy and could lead to further
stigma for the victim.
Examining the 'compelling public interest' D
215. The respondents have contended that even if the
compulsory administration of the impugned techniques amounts
to a seemingly disproportionate intrusi0r into personal liberty,
their investigative use is justifiable since there is a compelling E
public interest in elicitinr information that could help in preventing
criminal activities in the future. Such utilitarian considerations
hold some significance in light of the need to combat terrorist
activities, insurgencies and organised crime. It has been argued
that such exigencies justify some intrusions into civil liberties.
F
The textual basis for these restraints could be grounds such as
preserving the 'sovereignty and integrity of India', 'the security
of the state' and 'public order' among others. It was suggested
that if investigators are allowed to rely on these tests, the results
could help in uncovering plots, apprehending suspects and
preventing armed attacks as well as the commission of G
offences. Reference was also made to the frequently discussed
'Ticking Bomb' scenario. This hypothetical situation examines
the choices available to investigators when they have reason
to believe that the person whom they are interrogating is aware
H
588 SUPREME COURT REPORTS [2010) 5 S.C.R.
A of the location of a bomb. The dilemma is whether it Is justifiable
to use torture or other improper means for eliciting information
which could help in saving the lives of ordinary citizens. [The
arguments for the use of 'truth serums' in such situations have
been examined in the following articles: Jason R. Odeshoo,
B 'Truth or Dare?: Terrorism and Truth Serum in the Post- 9/11
World, 57 Stanford Law Review 209-255 (October 2004);
Kenneth Lasson, 'Torture, Truth Serum, and Ticking Bombs:
Toward a pragmatic perspective on coercive interrogation', 39
Loyola University Chicago Law Journal 329-360 (Winter
c 2008)]
216. While these arguments merit consideration, it must
be noted that ordina~ily it is the task of the legislature to arrive
at a pragmatic balance between the often competing interests
of 'personal liberty' and public safety. In our capacity as a
D constitutional court, we can only seek to preserve the balance
between these competing interests as reflected in the text of
the Constitution and its subsequent interpretation. There is
absolutely no ambiguity on the status of principles such as the
'right against self-incrimination' and the various dimensions of
E 'personal liberty'. We have already pointed out that the rights
guaranteed in Articles 20 and 21 of the Constitution of India
have been given a non-derogable status and they are available
to citizens as well as foreigners. It is not within the competence
of the judiciary to create exceptions and limitations on the
F availability of these rights.
217. Even though the main task of constitutional
adjudication is to safeguard the core organising principles of
our polity, we must also highlight some practical concerns that
G strengthen the case against the involuntary administration of the
tests in question. Firstly, the claim that the results obtained from
these techniques will help in extraordinary situations is
questionable. All of the tests in question are those which need
to be patiently administered and the forensic psychologist or
the examiner has to be very skilful and thorough while
H
SELVI & ORS. v. STATE OF KARNATAKA 589
[K.G. BALAKRISHNAN, CJI.]
interpreting the results. In a narcoanalysis test the subject is A
likely to divulge a lot of irrelevant and incoherent information.
The subject is as likely to divulge false information as he/she
is likely to reveal useful facts. Sometimes the revelations may
begin to make sense only when compared with the testimony
of several other individuals or through the discovery of fresh B
materials. In a polygraph test, interpreting the results is a
complex process that involves accounting for distortions such
as 'countermeasures' used by the subject and weather
conditions among others. In a BEAP test, there is always the
possibility of the subject having had prior exposure to the c
'probes' that are used as stimuli. All of this is a gradually
unfolding process and it is not appropriate to argue that the test
·results will always prove to be crucial in times of exigency. It is
evident that both the tasks of preparing for these tests and
interpreting their results need considerable time and expertise.
0
218. Secondly, if we were to permit the forciblP
administration of these techniques, it could be the first ste!) on
a very slippcry~slope as far as the,standards of police behaviour
are concerned. In some of the impugned judgments, it has been
suggested that the promotion of these techniques could reduce E
the regrettably high incidence of 'third degree methods' that are
being used by policemen all over the country. This is a circular
line of reasoning since one form of improper behaviour is
sought to be replaced by another. What this will result in is that
investigators will increasingly seek reliance on the impugned F
techniques rather than engaging in a thorough investigation.
The widespread use of 'third-degree' interrogation methods so
as to speak is a separate problem and needs to be tackled
through long-term solutions such as more emphasis on the
protection of human rights during police training, providing G
adequate resources for investigators and stronger
accountability measures when such abuses do take place.
219. Thirdly, the claim that the use of these techniques will
only be sought in cases involving heinous offences rings hollow H
590 SUPREME COURT REPORTS [2010] 5 S.C.R.
A since there will no principled basis for restricting their use once
the investigators are given the discretion to do so. From the
statistics presented before us as well as the charges filed
against the parties in the impugned judgments, it is obvious that
investigators have sought reliance on the impugned tests to
B expedite investigations, unmindful of the nature of offences
involved. In this regard, we do not have the authority to permit
the qualified use of these techniques by way of enumerating
the offences which warrant their use. By itself, permitting such
qualified use would amount to a law-making function whtch is
c clearly outside the judicial domain.
220. One of the main functions of constitutionally
prescribed rights is to safeguard the interests of citizens in their
interactions with the government. As the guardians of these
rights, we will be failing in our duty if we permit any citizen to
D be forcibly subjected to the tests in question. One could argue
that some of the parties who will benefit from this decision are
hardened criminals who have no regard for societal values.
However, it must be borne in mind that in constitutional
adjudication our concerns are not confined to the facts at hand
E but extend to the implications of our decision for the whole
population as well as the future generations. Sometimes there
are apprehensions about judges imposing their personal
sensibilities through broadly worded terms such as 'substantive
due process', but in this case our inquiry has been based on a
F faithful understanding of principles entrenched in our
Constitution. In this context it would be useful to refer to some
observations made by the Supreme Court of Israel in Public
Committee Against Torture in Israel v. State of Israel, H.C.
5100 I 94 (1999), where it was held that the use of physical
G means (such as shaking the suspect, sleep-deprivation and
enforcing uncomfortable positions for prolonged periods) during
interrogation of terrorism suspects was illegal. Among other
questions raised in that case, it was also held that the
'necessity' defence could be used only as a post factum
H justification for past conduct and that it could not be the basis
SELVI & ORS. v. STATE OF KARNATAKA 591
[K.G. BALAKRISHNAN, CJI.]
of a blanket pre-emptive permission for coercive interrogation A
practices in the future. Ruling against such methods, Aharon
Barak, J. held at p. 26:
• ... This is the destiny of democracy, as not all means are
acceptable to it, and not all practices employed by its
B
enemies are open before it. Although a democracy must
often fight with one hand tied behind its back. it
nonetheless has the upper hand. Preserving the 'Rule of
Law' and recognition of an individual's liberty constitutes
an important component in its understanding of security."
c
CONCLUSION
221. In ot1r considered opinion, the compulsory
administration of the impugned techniques violates the 'right
against self-incrimination'. This is because the underlying D
rationale of the said right is to ensure the reliability as well as
voluntariness of statements that are admitted as evidence. This
Court has recognised that 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,
E
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 F
inculpatory or exculpatory. Article 20(3) aims to prevent the
forcible 'conveyance of personal knowledge that is relevant to
the facts in issue'. The results obtained from each of the
impugned tests bear a 'testimonial' character and they cannot
be categorised as material evidence. G
222. We are also of the view that 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 H
592 SUPREME COURT REPORTS [2010] 5 S.C.R.
A 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 non-penal nature. The impugned techniques
cannot be read into the statutory provisions which enable
B medical examination during investigation in criminal cases, i.e.
the Explanation to Sections 53, 53-A and 54 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
c relation to scientific advancements. We have also elaborated
how the 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
0
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'.
E 223. In light of these conclusions, we hold that 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, we do leave room for the
F 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
G conscious control over the responses during the administration
of the test. However, any information or material -that is
subsequently discovered with the help of voluntary admi~istered
test results can be admitted, in accordance with Sect18n·27 of
the Evidence Act, 1872. The National Human Rights
H Commission had published 'Guidelines for the Administration
:~:-·
SELVI & ORS. v. STATE OF KARNATAKA 593
[K.G. BALAKRISHNAN, CJI.]
of Polygraph Test (Lie Detector Test) on an· Accused' in 2000. A
These guidelines should be strictly adhered to and similar
safeguards should be adopted for ''conducting the
'Narcoanalysis technique' and the 'Brain Electrical Activation
Profile' test. The text of these guidelines has been reproduced
below: B
(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.
c
(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. D
(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 E
represented by a lawyer.
(v) At the hearing, the person in question should also
be told in clear terms that the statement that is
made shall not be a 'confessional' statement to the F
Magistrate but will have the status of a statement
made to the police.
(vi) The Magistrate shall consider all factors relating to
the detention including the length of detention and
the nature of the interrogation. G
<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.
H
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