CASE ANALYSIS ON:

Smt.Selvi and Ors. V. State of Karnataka

2010 (7) SCC 263

Overview
Selvis daughter Kavita had married Shivakumar of a different caste against the wishes of her
family. Shivakumar was killed in 2004, and Selvi and two others became the suspects. Since the
prosecutions case was solely depended on circumstantial evidence, it sought the courts
permission to conduct polygraphy and brain mapping tests on three persons. The court granted
permission and the tests were conducted. When the results of polygraphy test indicated signs of
deception, the prosecution again sought courts permission to perform narcoanalysis on three
persons. The magistrate directed those three persons to undergo narcoanalysis. The decision of
the magistrate was challenged in Karnataka High Court, and no relief was granted. They went on
an appeal to the Supreme Court. The Supreme Court held that compulsory brain mapping and
polygraph tests and narcoanalysis were in violation of Articles 20(3) and 21 of the Constitution.
In the Judgement it was held that the compulsory administration of the impugned techniques
violates the right against self-incrimination and also that he test results cannot be admitted in
evidence if they have been obtained through the use of compulsion. Article 20 (3) of the
Constitution protects an individual's choice between speaking and remaining silent, irrespective
of whether the subsequent testimony proves to be inculpatory or exculpatory.
The Bench also said that 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 categorized as material evidence.
The Bench held that if these techniques were used compulsorily it would violate Article 20
(3). The Bench made it clear that even when the subject had given consent to undergo any of
these tests, the test results by themselves could not be admitted as evidence because the subject
does not exercise 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
administered test results can be admitted, in accordance with Section 27 of the Evidence Act.
As mentioned earlier, the right against self-incrimination is now viewed as an essential
safeguard in 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 accused of a crime 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 since it impedes the 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
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more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice.
Even during the investigative stage, false statements are likely to cause delays and obstructions
in the investigation efforts.

Ratio Decidendi :
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) is not only a trial right but its protection extends to the stage of investigation
also.
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 and any information or material
that is subsequently discovered with the help of voluntary administered test results to be
admitted.

ISSUES
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A. 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 techniques creates a likelihood of
Incrimination for the subject?
2-A. Whether the results derived from the impugned techniques amount to `testimonial
compulsion' thereby attracting the bar of Article 20(3)?
B. 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?

RULE OF LAW
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Article 20(3) of the Constitution - No person accused of any offence shall be compelled to be
a witness against himself. Clause (3) of Article 20 declares that no person accused of an offence
shall be compelled to be a witness against himself. This provision may be stated to consist of the
following three components:
1. it is a right pertaining to a person accused of an offence
2. it is a protection against compulsion to be a witness; and
3. it is a protection against such compulsion resulting in his giving evidence against himself.
Article 21 of the Constitution No person shall be deprived of his life and personal liberty
except in accordance to the procedure established by law. Article 21 is a welfare piece of
legislation its extent is time and again extended. No fundamental right was ever interpreted with
so much wisdom and acuteness as of article 21. In the instant case Article 21 is interpreted to
derive the relationship between Right to fair trial and Personal liberty.
Section 27 of The Indian Evidence Act, 1872
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 amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.
Section 73 of The Indian Evidence Act, 1872
Comparison of signature, writing or seal with others admitted or proved.In order to
ascertain whether a signature, writing or seal is that of the person by whom it purports to
have been written or made, any signature, writing, or seal admitted or proved to the
satisfaction of the Court to have been written or made by that person may be compared with
the one which is to be proved, although that signature, writing, or seal has not been
produced or proved for any other purpose. The Court may direct any person present in
Court to write any words or figures for the purpose of enabling the Court to compare the
words or figures so written with any words or figures alleged to have been written by such
person. 1[This section applies also, with any necessary modifications, to fingerimpressions.]

Section 179. of The Indian Evidence Act, 1872

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Refusing to answer public servant authorised to question

Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer
any question demanded of him touching that subject by such public servant in the exercise of the legal
powers of such public servant, shall be punished with simple imprisonment for a term which may extend
to six months, or with fine which may extend to one thousand rupees, or with both

Section 161 in The Code Of Criminal Procedure, 1973

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, 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 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 made to him in the course of
an examination under this section; and if he does so, he shall make a separate and
true record of the statement of each such person whose statement he records.
Section 313 of The Code Of Criminal Procedure, 1973
313. Power to examine the accused.
This section empowers the Court to question the accused. But, the provisio provides that the
accused cannot be punished if he refuses to answer the same.
Section 315 in The Code Of Criminal Procedure, 1973
315. Accused person to be competent witness.
This section provides that the accused can be a competent witness. However, the accused has a
right of silence. The non-evidence of the accused will no way is prejudicial to the accused. The
adverse inference cannot be inferred from the refusal of the accused to step into the box.

ANALYSIS
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A. Whether the involuntary administration of the impugned techniques violates the `right
against Self-incrimination' enumerated in Article 20(3) of the Constitution?
Article 20(3)1 of the Constitution provides for the right to Self incrimination. The privilege
against self incrimination is a fundamental canon of Common law criminal jurisprudence.2 One
of the most prevailing views today is that subjecting the accused to undergo the test, as has been
done by the investigative agencies in India, is considered by many as a blatant violation of Art.
20(3). The aim of the Criminal justice system is to promote efficiency in investigation and
prosecution, thus maintaining public safety. However, with the current emphasis on right of the
accused to remain silent, the task of prosecutors and investigators has been made increasingly
difficult.
In the case of Rojo George v. Deputy Superentendent of Police , the Court while allowing a
Narco Analysis test observed that in present days the techniques used by the criminals for
commission of crime are very sophisticated and modern. The conventional method of
questioning may not yield any result at all. That is why the scientific tests like polygraph, brain
mapping, narco analysis, etc. are now used in the investigation of a case. When such tests are
conducted under strict supervision of the expert, it cannot be said that there is any violation of
the fundamental rights guaranteed to a citizen of India.
The Doctrine of Self incrimination under article 20(3) is available only against any person
accused of any offence. However, under Section 161 (2) of the CrPC, any public servant can
compel any person to reveal relevant information in order to expose all persons of criminal
worthiness except his accomplice and himself. If such information is revealed in police custody
by an accused, s.27 of the Indian Evidence Act will be attracted. Further, Section 179 of the IPC
which talks about punishment if a person refuses to answer any public servant authorised to
question.3 Even this section does not distinguish between an accused or merely a witness or a
suspect.

1 Article 20(3): No person accused of any offence shall be compelled to be a witness against himself.
2 Verma, Sonakshi., The Concept of Narcoanalysis In View Of. Constitutional Law And Human Rights,
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The judgment of an eleven-judge bench in the case of State of Bombay v Kathi Kalu Oghad 4
where it was observed that It is well established that clause (3) of Article 20 is directed against
self-incrimination by the accused person. Self-incrimination must mean conveying information
based upon personal knowledge of the person giving the information and cannot include merely
the mechanical process of producing documents in court which may throw a light on any of the
points in the controversy, but which do not contain any statement of the accused based on his
personal knowledge. There is no compulsion when a police officer, in investigating a crime
against, a certain individual, asks him to do a certain thing. The fact that a person was in police
custody when he made the statement is not a foundation for an inference that he was compelled
to make the statement. The mere questioning of an accused by a police officer, resulting in a
voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion.
The Criticism against the doctrine of Self Incrimination is that Section 53 of the CrPC as
amended in 2005 allows for medical examination by means of the use of modern and scientific
techniques including DNA profiling and such other tests. By applying the rule of Ejusdem
Generis terms ...such other tests, it can be interpreted that the legislatures intent was to
include all upcoming medical examinations like Narcoanalysis etc. in order to examine an
accused to afford evidence as to the commission of an offence. In my view if there are some
advanced techniques used in investigation process in order to achieve justice, such techniques
should be encouraged and should not taken as a bar against various constitutional provisions.

1-A. Whether the investigative use of the impugned techniques creates a likelihood of
Incrimination for the subject?
3 Goel, Ashish, Indian Supreme Court in Selvi v. State of Karnataka: Is a Confusing Judiciary Worse
than a Confusing Legislation? (January 30, 2011), Journal of Law and Politics in Africa, Asia & Latin
America, (2011) Vol. 44, No. 4, Available at SSRN: http://ssrn.com/abstract=2063920
4 AIR 1961 SC 1808

In the case of Kathi Kalu Oghad., it is observed that to bring a 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 the statement. It is not enough that he should become an accused,
anytime after the statement has been made.
A major argument against such discovery of facts under Section 27 leading to the likelihood of
self incrimination is that such results are admissible only if they are not obtained under
compulsion.
The question as to what constitutes incrimination for the purpose of Article 20(3) is highlighted
in Nandini Satpathy v, Dani and others.,5answers that would in themselves are conviction but
answers which have a reasonable tendency strongly to point out to the guilt of the accused are
incriminatory. Relevant replies which furnish a clear and real 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 mouth of the accused. An answer acquires confessional statement only
if, in terms or substantially all the facts which constitute the offence are admitted by the offender.
If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3)
strikes at confession and self incrimination but leaves untouched other relevant facts.
Yet another argument against the right to self incrimination in case of these tests is that S.161 (2)
of the CrPC and Article.20 (3) share a common purpose i.e. to prevent forcible conveyance of
personal knowledge relevant to the facts in issue. However, Article.20 (3) and 161(2) of the
CrPC ensure protection against involuntary self incrimination but not involuntary
incrimination of any other person6. It follows that compulsion is justified to extract
information, in or outside police custody, which incriminates any other person not being the
subject himself or his accomplice. Involuntary administration of such tests can be lawful if
administered to extract information from persons who are supposed to be acquainted with the

5 (1978) 2 SCC 424

6 Abhyudaya Agarwal & Prithwijit Gangopadhyay, Use Of Modern Scientific Tests In Investigation And
Evidence: Mere Desperation Or Justifiable In Public Interest?, [2009] NUJS Law Rw 2,
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facts and circumstances of the case but are not exposing themselves or their accomplices, if
any, to a criminal charge by such revelation.
It can be concluded that any person other than a person facing formal accusation does not have
a fundamental right against self incrimination but only a statutory right against involuntary
self incrimination flowing from s.161 (2) of the CrPC and also that Any person acquainted
with the facts of a case can be compelled to be a witness in that case. But such compulsion
shall not be to expose him or his accomplices to a criminal charge, whether directly or
indirectly.

2-A. Whether the results derived from the impugned techniques amount to `testimonial
compulsion' thereby attracting the bar of Article 20(3)?

In Dinesh Dalmia v State , the Court observed that where the accused had not allegedly come
forward with the truth, the scientific tests are resorted to by the investigation agency. Such a
course does not amount to testimonial compulsion. From the above discussion, it is very evident
that conducting a Narco Analysis test does not violate Article 20 (3) per se. Only after
conducting the test, if the accused divulges information which is incriminatory, then it will be hit
by Article 20(3).
Testimonial compulsion can also be waived off in cases where the tests may indicate that the
subject is concealing information pertaining to a particular topic, although the exact content of the
information is not revealed. This was held in the case of Ramchandra Reddy v. State of
Maharashtra7
In the instant case the court explained as to what constitutes testimonial compulsion for the
purpose of Article 20(3). The court made an observation on M.P Sharma v. Satish Chandra.,8
The phrase used in Article 20(3) is to be a witness. A person can be a witness not merely by
giving oral evidence but also by producing documents or making intelligible gestures as in the
7 2004 All MR (Cri) 1704
8 (1954) SCR 1077
10

case of dumb witness. To be a witness is nothing more than to furnish evidence. These
observations suggest that the phrase to be a 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 the documents and the making of intelligible gestures. Also in State of
Bombay v. Kathi Kalu Oghad and Ors,9 B.P Sinha, C.J observed that 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 a part of body by an accused person for
purpose of identification. 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 statement 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. A person is said to be a witness to a certain state of facts
which has to be determined by a court or authority authorized to come to decision, by testifying
to what he has seen or something which 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.
In the present case the court held that 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 provision, it must be of such a character that by itself it should have the tendency
of incriminating the accused, if not also actually doing so. In other words, it should be a
statement which makes the case against accused person atleast probable, considered by itself.

9 (1962) 3 SCR 10
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B. 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?
Article 21 of the constitution guarantees the life and liberty of a person. It is contended that
involuntary application of these techniques are against this right to liberty. In Dinesh Dalmia v.
State10, it was categorically held that scientific tests are a response to the objections that human
rights are violated by the use of various kinds of third-degree methods, and that these scientific
tests do not involve testimonial compulsion. The Bombay High Court in Abdul Karim Telgis
case has held that the suffering and pain in these cases is only minimal.11
The court in the instant case commented on the impugned tests which entails the physical
confinement of the subject, because any form of restraint on personal liberty, howsoever slight it
may be, must have a basis in law. It touched on the aspects such as right to privacy and right
against cruel and inhuman and degrading treatment and also right to fair trial.
The court discussed the decision given by the U.S supreme court in Rochin v. California,12
where it was held that use of involuntary verbal confessions in state criminal trials is
constitutionally obnoxious not only because of their unreliability. They are inadmissible under
the due process clause even though statements in them may be independently established as true.
Coerced confessions offend the communitys sense of fair play and decency.
The bench also commented on the analogy between the pin prick of a needle for extracting blood
sample and the intravenous administration of drugs such as sodium pentathol. In Paul H.
Breithaupt v. Morris Abram13 it was held that there is nothing brutal or offensive in taking a
blood sample. It was held that compelled extraction of blood samples in the course of a medical
10 2006 Cri.L.J. 2401 (Mad.)
11 MANU/MH/0463/2004
12 342 US 165 (1952)
13 342 US 432 (1957)
12

examination does not amount to conduct that shocks the conscience. And it discussed the
applicability of right to privacy and safeguarding the right against cruel and inhuman or
degrading treatment.
Compulsory administration of these techniques should be permitted at least for purposes of
investigation, and if the test results lead to the discovery of fresh evidence, then these fruits
should be admissible under Section 27 of the Indian Evidence Act. These test results could also
support the theories or suspicions of the investigators in a particular case and confirm suspicions
about a person's involvement in a criminal act. In M.P. Sharma v Satish Chandra14, the Supreme
Court has pointed out that the immunity offered by Article 20(3) is available only when the
police or other investigating authorities, compel the person to do a volitional act to obtain
information. Thus the element of compulsion is present when the person is actually forced to
make a certain revelation by the authorities under threat or duress etc. But in these tests, the
accused is not forced to confess or to depose to a particular fact.

14 [1954] SCR 1077

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CONCLUSION
The court held that the compulsory administration of the impugned techniques violates the `right
against self- incrimination'. The Court has recognized 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, 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 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 categorized as material
evidence. I criticize the judgement of the Supreme Court as it is the need of the hour to develop
various advanced technological methods in order to achieve justice. If a person is suspected to
have some information regarding the commission of an offence, there should be no prohibition
on conducting a Narco Analysis test on him as the protection under Article 20 (3) is available
only to a person accused of an offence. If there is some help being provided by the way of these
tests to the investigative agencies then such methods should be encouraged rather than being
criticized. The supreme court is from the point of view of various constitutional provisions right
in its decision but it should have had also considered the various aspects necessary for criminal
justice system.
It also held that forcing an individual to undergo any of the impugned techniques violates the
standard of sustantative due process which is required for restraining personal liberty. Such
violation will occur 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 penal nature. In todays complex social milieu with
proliferating crimes against the society and the integrity of the country, it is necessary to keep in
mind the interest of the society at large and the need for a thorough and proper investigation, as
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against individual rights, while ensuring that the individual constitutional rights are not infringed.
If these tests are properly considered to be steps in the aid of investigation and not for obtaining
incrimination statements, there is no constitutional infirmity whatsoever. The larger public
interest and the scope for developing new investigative tools in criminal investigation should
also be kept in mind.
Testimonial compulsion will be justifiable where the needs of the public should supersede the
needs of an individual as given under Article 20(3) 15. Control of crime is an essential and
legitimate goal of the state and that the brain mapping and the lie detector test in any case are
restricted to external contact with the body of the accused and do not really amount to a violation of
his or her bodily autonomy16. Their investigative use is justifiable since there is a compelling public
interest in eliciting 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, including subjecting an unwilling accused to medical examination. 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. For example, investigations into the July
11, 2006, train blasts in Mumbai and the subsequent blasts in Malegaon were successful only
because of the revelations made by individuals during Narco-analysis. 17It goes further to state that
Narco-analysis has also taken the place of preventive forensics, because it has helped the
administration take steps to prevent further planned blasts in Malegaon and Karnataka.18
The manner in which modern-day criminals make use of science and technology in perpetrating
their criminal activities with relative impunity has compelled rethinking on the part of the
criminal justice establishment to seek the help of the scientific community to come to the help of
15 Barto, Michal and Mates, Pavel,. Public Versus Private Interest Can the Boundaries Be Legally
Defined? (March 30, 2011).
16 Ramchandra Reddy v. State of Maharashtra, MANU/MH/0067/2004 (Bom)
17 Bannur Muthai Mohan, Misconceptions About Narco Analysis
18 Id
15

the police, prosecutors and the courts. The criminal procedure, rules of evidence, and the
institutional infrastructure designed more than a century ago, are now found inadequate to meet
the demands of the scientific age. The absence of a national policy in criminal justice
administration in this regard, is felt to be a serious drawback. The Evidence Act may need to be
amended to make scientific evidence admissible as substantive evidence rather than opinion
evidence and establish its probative value, depending on the sophistication of the scientific
discipline concerned.

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