Selvi & ors. V. State of Karnataka & anr

sejal Makkad

Material facts
The criminal appeals filed in the years 2005,2006,2007 and 2010 were altogether taken up by the Supreme Court in a special leave petition on May 05,2010. The case was initially filed for the people who are involuntarily subjected to such tests during observations which may lead to infringement of their fundamental rights. The tests specifically included in the case are narco analysis (NARCO), Polygraph assessment (PE) and Brain Electrical Activation Profile (BEAP). These tests have been subjected to infringe the Right to Privacy of people who are involuntarily administered to them.
The tests are said to be leading to self incrimination of people. It is being said that these tests are important for proper investigation and helps in reaching to root cause of a crime. However, on the other side these tests are against the laws. The use of third degree methods are to be prevented to safe guard the rights and well being of people.

Legal issues-
1. Whether the tests lead to infringement of right mentioned under Article 20(3) of the Constitution of India?
2. Whether these tests can be performed legally if people voluntarily agree to it?
3. Whether the tests performed fall under "substantive due process"?
4. Whether any of the tests lead to dilution of Section 161(2) of Code of Criminal Procedure?
5. Whether the tests if compulsorily performed, would lead to mental harassment of the people?

Contention of the Petitioners-
• The tests that are used for recording the statements are harmful for the mental and physical wellbeing.
• According to Section 27 of the Evidence Act, the statement recorded in the duration of custody can be considered as an evidence and stand as a strong source of evidence.
• The tests are performed involuntarily so that proper investigation can be done. However, they infringe the Right to Privacy as mentioned under Article 21 of the Constitution of India.
• According to Article 20(3) of the Constitution of India, no person can be compelled to give evidences against himself i.e. self-incrimination. However, the involuntary performance of them infringe this right as well.

Contentions of the Respondent
• The tests are compulsory for collecting evidences in a case.
• The tests does not harm or infringe any of the rights as they are legal and can be relied on.
• People who are subjected to these tests, due care is taken so that they do not face any difficulty.
• The tests does not lead to self-incrimination as they are for reaching to the actual culprit and not for blaming someone inappropriately.

Ratio Decidendi:
The judgement was delivered by K.G. Balakrishnan, J. RV Raveendran and J. JM Panchal. The decision was:
• The involuntary performance of the tests on people leads to infringement of Rights as mentioned under Article 21 and 20(3) of Constitution of India.
• Compulsory implications of the tests are violative of the rights. In the case of Dinesh Dalmia v. State it was held that the scientific tests used for collecting evidences include third degree methods which violate the human rights. The tests do not involve testimonial compulsions.
• A person has right to remain silent in order to prevent self- incrimination.
• No such methods can be used to extract Information which can have impact on physical and mental well being of a person.