Sunday, 11 August 2019

Leading Supreme Court Judgment on Narco analysis



Constitution - Right against self-incrimination - Constitutionality of Involuntary administration of Narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) - Article 20(3) of Constitution of India, 1950 - Whether the involuntary administration of the Narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) violates the 'right against self-incrimination' enumerated in Article 20(3) of the Constitution - Held, circumstances that could 'expose a person to criminal charges' amounts to incrimination' for the purpose of Article 20(3) - Article 20(3) aims to prevent the forcible 'conveyance of personal knowledge that is relevant to the facts in issue' - Protective scope of Article 20(3) extends to the investigative stage in criminal cases - Since, the underlying rationale of the 'right against self-incrimination' is to ensure the reliability as well as voluntariness of statements that are admitted as evidence, the compulsory administration of the impugned techniques violates the 'right against self-incrimination - Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory - Results obtained from each of the impugned tests bear a 'testimonial' character and they cannot be categorised as material evidence - Hence, test results cannot be admitted in evidence if they have been obtained through the use of compulsion.

Constitution - Right against self-incrimination' - Who can avail Right against self-incrimination - Held - 'Right against self-incrimination ' available to persons who have been formally accused as well as those who are examined as suspects in criminal cases - 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. 

Constitution - 'Testimonial Compulsion' - Whether the results derived from the impugned techniques amount to 'testimonial compulsion' thereby attracting the bar of Article 20(3) of the Constitution of India, 1950 - Held, 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 not barred - Narcoanalysis technique involves testimonial act as the subject is encouraged to speak in a drug-induced state such - Hence, compulsory administration of the narcoanalysis technique amounts to 'testimonial compulsion' and thereby triggers the protection of Article 20(3).
Constitution - Inter-relation between Right to fair trial and 'personal liberty' - Article 21 of the Constitution of India,1950 - Whether the involuntary administration of the impugned techniques a reasonable restriction on `personal liberty' as understood in the context of Article 21 of the Constitution - Held, inter-relationship between the `right against self- incrimination' and the `right to fair trial' has been recognised under Article 21 - Forcing an individual to undergo any of the impugned techniques violates the standard of `substantive due process' which is required for restraining personal liberty - Compulsory administration of these techniques an unjustified intrusion into the mental privacy of an individual which amount to `cruel, inhuman or degrading treatment' - Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the `right against self-incrimination - Thus, no individual to be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise.

Criminal - Derivative evidence - Admissibility of - Section 27 Evidence Act, 1872 and Article 20(3) of Constitution of India, 1950 - Permissibility of extracting statements which may furnish a link in the chain of evidence and hence create a risk of exposure to criminal charges - Whether such derivative use of information extracted in a custodial environment is compatible with Article 20(3) - Held, Section 27 of Evidence Act, permits the derivative use of custodial statements in the ordinary course of events - Provisions of Section 27 of the Evidence Act are not within the prohibition under Article 20(3) unless compulsion has been used in obtaining the information - Thus, 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 the Evidence Act

"Compulsory involuntary administration of the Narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) violates the `right against self-incrimination' enumerated in Article 20(3) of the Constitution as the subject does not exercise conscious control over the responses during the administration of the test."

"Article 20(3) not only a trial right but its protection extends to the stage of investigation also."

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1267 of 2004, 
Decided On: 05.05.2010

Selvi Vs. State of Karnataka

Hon'ble Judges/Coram:
K.G. Balakrishnan, C.J., R.V. Raveendran and J.M. Panchal, JJ.

Citation: MANU/SC/0325/2010 : (2010) 7 Supreme Court Cases 263
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