# SMT. SELVI & ORS v. STATE OF KARNATAKA

- **Citation:** [2010] 5 S.C.R. 381
- **Court:** Supreme Court of India
- **Decided:** 2010
- **Case number:** Criminal Appeal No. 1267 of 2004
- **Bench:** K.G. Balakrishnan, R.V. Raveendran, J.M. Panchal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-selvi-ors-v-state-of-karnataka-27034
- **Pages:** 214

## Headnote

CODE OF CRIMINAL PROCEDURE, 1973:
Section 161 (2), Explanation to Sections 53, 53-A and 54
A
B
c
- Investigation - Examination of accused persons, suspects
and witnesses -
Use of certain scientific techniques viz.
narcoanalysis, polygraph examination and Brain Electrical
Activation Profile (BEAP) test - Involuntary administration of 0
- Held: Violative of Article 20(3) of the Constitution of India -
However, any information or material that is subsequently
discovered with the help of voluntary administered test results
can be admitted in accordance with Section 27 of Evidence
Act -
Guidelines formulated by National Human Rights
Commission to be strictly adhered to - Similar safeguards
should be adopted for conducting such tests - Constitution
of India, 1950, Article 20(3)- Evidence Act, 1872, Section 27,
Criminal Investigation -
Video recordings of
narcoadalysis interviews -
Leakage to media by the
investigation agency - A worrisome practice since public
distribution of these recordings can expose the subject to
undue social stigma and specific risks - May even encourage
vigilantism in addition to media trial.
.CONSTITUTION OF IND/A, 1950:
Article 20(3) -
Right against self-incrimination -
Polygraph examination and Brain Electrical Activation Profile
(BEAP) test - Results obtained from these tests should be
381
E
F
G
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 selfincriminatiofl'

## Text

_Characters 0–39,912 of 422,509. This is a partial read: ask again with offset=39912 for what follows._

[2010] 5 S.C.R. 381
SMT. SELVI & ORS.
v.
STATE OF KARNATAKA
(Criminal Appeal No. 1267 of 2004)
MAY 5, 200.7
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN AND
J.M. PANCHAL, JJ.]
CODE OF CRIMINAL PROCEDURE, 1973:
Section 161 (2), Explanation to Sections 53, 53-A and 54
A
B
c
- Investigation - Examination of accused persons, suspects
and witnesses -
Use of certain scientific techniques viz.
narcoanalysis, polygraph examination and Brain Electrical
Activation Profile (BEAP) test - Involuntary administration of 0
- Held: Violative of Article 20(3) of the Constitution of India -
However, any information or material that is subsequently
discovered with the help of voluntary administered test results
can be admitted in accordance with Section 27 of Evidence
Act -
Guidelines formulated by National Human Rights
Commission to be strictly adhered to - Similar safeguards
should be adopted for conducting such tests - Constitution
of India, 1950, Article 20(3)- Evidence Act, 1872, Section 27,
Criminal Investigation -
Video recordings of
narcoadalysis interviews -
Leakage to media by the
investigation agency - A worrisome practice since public
distribution of these recordings can expose the subject to
undue social stigma and specific risks - May even encourage
vigilantism in addition to media trial.
.CONSTITUTION OF IND/A, 1950:
Article 20(3) -
Right against self-incrimination -
Polygraph examination and Brain Electrical Activation Profile
(BEAP) test - Results obtained from these tests should be
381
E
F
G
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 selfincriminatiofl' enumerated in Article 20(3) of the
Constitution?
o
· 1-A. Whether the investigative use of the impugned
techniques creates a likelihood of incrimination for the
subject?
1-B. Whether the results derived from the impugned
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 selfincrimination'. This is because the underlying rationale
of the said right is to ensure the reliability as well as
voluntariness of statements that are admitted as
tN\dt!nCt!. This Court has recognised that the protect\'le 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 nonpenal 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
A
B
c
386
SUPREME COURT REPORTS
[2010] 5 S.C.R.
Test, he should be given access to a lawyer
and the physical, emotional and legal
implication of such a test should be explained
to him by the police and his lawyer.
(iii)
The consent should be recorded before a
Judicial Magistrate.
(iv)
During the hearing before the Magistrate, the
person alleged to have agreed should be duly
represented by a lawyer.
(v)
At the hearing, the person in question should
also be told in clear terms that the sta~e.ment
that is made shall not be a 'confessional'
statement to the Magistrate but wil! have the
0
status of a statement made to the police.
E
F
G
(vi)
The Magistrate shall consider all factors
relating to the detention including the··length
of detention and the
nature of the
interrogation.
(vii) The actual recording of the Lie Detector Test
shall be done by an independent agency (such
as a hospital) and conducted in the presence
of a lawyer.
(viii) A full medical and factual narration of the
manner of the information received must be
taken on record. [Para 223] [592-G-H; 593-A-H;
594-A]
National Human Rights Commission, India: Guidelines
for administration of Polygraph Test (Lie Detector Test) on
Accused, published in 2000, referred to.
Polygraph Examination:
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
examination room can also create distortions In the·
recorded responses. The test is best administered in
comfortable surroundings where there are no potential
distractions for the subject and complete privacy is
maintained. The mental state of the subject is also vital
since a person in a state of depression or hyperactivity
B
c
is likely to offer highly desparate physiological responses
which could mislead the examiner. In some cases the
subject may have suffered from loss of memory in the
intervening time-period between the relevant act and the
0
conduct of the test. When the subject does not remember
the facts in question, there will be no self-awareness of
truth or deception and hence the recording of the
physiological responses will not be helpful. Errors may
also result from 'memory-hardening', i.e. a process by
which the subject has created and consolidated false
memories about a particular incident. This commonly
occurs in respect of recollections of traumatic events and
the subject may not be aware of the fact that he/she is
lying. [Para 16] [442-C-H]
E
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 .
0
lying cannot be readily distinguished. [Paras 17, 18] [443A-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.
Narcoanalysis technique:
3.1. This test involves the intravenous administration
B
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 'truthserums' 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.
Laboratory Procedure Manual - Forensic Narco-Analysis
(Directorate of Forensic Science, Ministry of Home Affairs,
Government of India, New Delhi - 2005), referred to .
B
. 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 (NovDec. 1951); John M. Macdonald: 'Truth Serum', 46(2) The
Journal of Criminal Law, Criminology and Police Science
259-263 (Jul.-Aug. 1955); George H. Dession, Lawrence Z.
Freedman, Richard C. Donnelly and Frederick G. Redlich,
'Drug-Induced revelation and criminal investigation', 62 Yale
Law Journal 315-347 (February 1953); J.P. Gagnieur: 'The
Judicial use of Psychonarcosis in France', 40(3) Journal of
Criminal Law and Criminology 370-380 (Sept.-Oct. 1949);
Andre A. Moenssens: 'Narcoanalysis in Law Enforcement',
52(4) The Journal of Criminal Law, Criminology and Police
Science 453-458 (Nov.-Dec. 1961) and Charles E. Sheedy:
'Narcointerrogation of a Criminal Suspect', 50(2) The Journal
D
E
of Criminal Law, Criminology and Police Science 118-123
(July-Aug 1959) pp. 118-119, referred to.
Brain Electrical Activation Profile (BEAPl Test:
F
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; 480A-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] (480D-E]
4.4. Functional Magnetic Resonance Imaging (FMRI)
B
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 lieC
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
0
for several other reasons. [Para 73] [482-C-G]
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. 245263 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
self-incrimination' and the 'right to fair trial' has been
recognised in most jurisdictions as well as international
human rights instruments. For example, the U.S.
Constitution incorporates the 'privilege against selfincrimination' in the text of its Fifth Amendment. The
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
F
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
0
requiring the prosecution to prove guilt. [Para 81] [487F-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]
[489-G-H; 490-A-D]
E
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
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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 selfincrimination:
7.1. The right against self-incrimination is now viewed
as an essential safeguard in criminal procedure. Its
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[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] [4958-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 selfB
·"fhcrimination' is a vital protection to ensure that the
p'rosecUtion discharges the said onus. [Para 92] [495-FH; 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]
State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10,
relied on.
Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424,
referred to.
Murphy v. Waterfront Commission, 378 US 52 (1964);
Wong Kam-ming v. R, [1979] 1 All ER 939 and Rochin v.
California, 342 US 166 (1951 ), referred to.
John Wigmore: 'The privilege against self-incrimination,
D
E
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 209232 (Summer 2007), referred to.
H
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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?
B
Applicability of Article 20(3) to the stage of investigation:
8. The majority decision in Miranda was not a sudden
development in U.S. constitutional law. The scope of the
privilege
against self-incrimination
had
been
progressively expanded in several prior decisions. The
notable
feature
was
the
recognition
of the
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.