Prof. Mrinal Satish on the Selvi Judgment: Guest Post

I am delighted that Prof. Mrinal Satish has agreed to write a guest post for this blog on the decision of the Supreme Court in Selvi v. State of Karnataka, which held compulsory brain-mapping, polygraph and narco-analysis tests to be in violation of Articles 20(3) and 21 of the Constitution of India. Prof. Satish is a Visiting Professor at the National Law School of India University. He had been a member of the faculty of the NLSIU previously from 2002-2006; and has obtained an LL.M. from Yale University. He subsequently joined the National Judicial Academy, Bhopal, before coming back to the NLSIU as a Visiting Professor. He will shortly be going back to Yale University. Prof. Satish’s post is copied below, and I am sure that readers will find it extremely illuminating.

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“In constitutional adjudication, our concerns are not confined to the facts at hand but extend to the implications of our decision for the whole population as well as future generations.” (Para 219)

This statement in paragraph 219 of the judgment of the Supreme Court in Selvi v. State of Karnataka to me sums up the essence of this decision. I consider the decision a watershed moment in the history of the Indian Supreme Court. A Court that is known to be minimalist when it comes to issues of national security and “public interest” seems to have shed this minimalist cloak in this case. It is a welcome step in Constitutional adjudication and will have far reaching consequences for Indian Constitutional and criminal law. In this post, I will highlight the changes of consequence made by the Supreme Court in this decision and the impact that it will have on Indian law. Before doing so, I will first discuss the decision given by the Court in this case.

The Supreme Court in Selvi held the following:

1. The compulsory administration of the narco analysis, brain mapping and polygraph tests violates Article 20(3) of the Constitution of India and the right to privacy guaranteed by Article 21.

2. Forcing an individual to undergo any of the three tests violates the standard of “substantive due process” which is required for restraining personal liberty. Thus it extended the ban to civil cases as well, by reading Art. 20(3) into Art. 21.

3. The impugned tests cannot be conducted using Sections 53, 53A and 54 of the Code of Criminal Procedure.

4. Placing reliance on the tests violates the right to fair trial guaranteed by Article 21 of the Constitution

5. “Compelling public interest” cannot justify the dilution of constitutional rights.

6. The tests can be administered if a person volunteers for the same, but the test results cannot be admitted as evidence. However, any information or material discovered, in accordance with Section 27 of the Indian Evidence Act can be admitted as evidence. The guidelines given by the NHRC in relation to polygraph tests (2000) need to be strictly adhered to in conducting the tests.  

The most interesting aspect of this judgment is the manner in which the Court has read and interpreted its decision in Kathi Kalu Oghad. The Court makes a distinction between furnishing evidence that is used for comparison with facts already known, and a situation where it is used to subsequently discover fresh facts or materials that would be relevant to an ongoing investigation. It thus distinguishes between what it calls “physical evidence” and “testimonial evidence.” It states that physical evidence would include blood samples, DNA samples, hair, sweat, semen etc, which are of a “real nature” in contradistinction to “testimonial evidence” which would be “communicative” in nature. It relies on a judgment of the U.S. Supreme Court (Schmerber v. California) to do so. Taking this logic forward, the Court broadens the understanding of “testimonial evidence,” to not only include mere statements or gestures, but to include physiological responses, which are “communicative” in nature as well. In doing so, the Court rules that in interpreting precedents, the changed context needs to be kept in mind; in the words of the Court: “Just as interpretation of statutes has to be re-examined in light of scientific evidence, we should be willing to re-examine judicial observation with a progressive lens.”  The Court holds that in giving a polygraph and the Brain Mapping test, the subject makes a mental effort, which leads to a physiological response. Thus the person ends up imparting personal knowledge about relevant facts, which brings these techniques within the purview of the ban imposed by Article 20(3) of the Constitution of India, as interpreted by the Court in Oghad.

On the issue of whether the Code of Criminal Procedure (Cr.P.C.) permits the impugned techniques, the manner in which the Court interprets Sections 53, 53A and 54 of the Cr.P.C. has implications for statutory interpretation. The Court read the forensic techniques mentioned in the Explanation to Section 53 of the Cr.P.C ejusdem generis and concluded that techniques mentioned therein are with respect to collection of “physical evidence” and do not include techniques that will lead to collection of “testimonial evidence.” In doing so, it took note of the fact that the Legislature was aware of the fact that these techniques existed in 2005, when the Explanation was added to Section 53. The Court holds that the impugned tests not being enumerated, indicates that the Legislature did not intend them to be read into “medical examination” under the Cr.P.C. In the process, the Court recognises the fact that constitutional values need to be infused into all branches of law. It thus sends the message, which is often lost, that criminal procedure is an extension of the Fundamental Rights guaranteed under Part III of the Constitution.

In the context of Article 21 of the Constitution of India, the Court holds that the right to make a statement or remain silent, involves the exercising the right to privacy and thus compelling a person to make a statement amounts to a contravention of Article 21 as well. It thus broadens the understanding of the term “privacy” and “personal liberty” under Article 21. It makes interesting use of the theory of inter-relationship of rights” and reads in Article 20 into Article 21. In the process, it declares the impugned tests to be unconstitutional even in respect to civil proceedings.

Another far-reaching interpretation of Article 21, in the context of custodial interrogation and the meaning of the term “custody” is the ruling of the Court that the presumption of a person being in a custodial environment would apply, irrespective of whether he/she has been formally accused or is a suspect or a witness. The Court thus plugs the existing loopholes that the police find to contravene provisions relating to custodial interrogation.

The other very interesting observation of the Court is as regards the right of an accused person to legal counsel. The Court in Nandini Satpathy had ruled that an accused has a right to legal counsel, but such right does not extend to the counsel being present during interrogation. This dictum of Satpathy was introduced into the Cr.P.C in the 2008 Amendments (this part of the Amendments however have not yet been notified). The Court in Selvi, while holding the impugned tests as being in contravention of Article 21, states that the tests negate the right to counsel, since the counsel will not be able to advice his/her client when he/she is undergoing the tests. This, in my reading, extends the right to counsel to not only mere providing advice before interrogation, to presence at the time of interrogation as well. This will definitely have interesting implications in the context of interrogation of suspects, and is a welcome move. What the Court needs to do next is to bring within the purview of “legal aid”, the concept of effective legal aid, something that it has hesitated in doing till date. This will then ensure that India is truly following the rule of law, with respect to its criminal justice system.

The Court sheds its traditional minimalist outlook, when discussing the issue of whether the impugned tests are required in light of “compelling public interest,” especially against terror suspects. It holds that Articles 20 and 21 are non-derogable and as per the Constitution, cannot be suspended during an Emergency as well. Thus, it holds that the impugned tests cannot be conducted on terror suspects, against their consent. It negates the much debated “ticking time bomb theory” propounded by Alan Dershowitz and says the results of the impugned tests need careful analysis, which takes time, and will not be useful in a “ticking-time bomb” scenario. It also resonates the thought that the impugned tests have led to the police using these unreliable techniques over effective forms of criminal investigation. Terming as circular logic, the argument that not having these tests would lead to the police using conventional third degree methods, the Court refuses to uphold the constitutionality of the tests on this ground. In holding that the tests amount to “cruel, inhuman or degrading treatment”, thus contravening Article 21, the Court states that the threshold for proving the same is lesser than that of proving “torture”. Interestingly, to define “torture” and “cruel, inhuman or degrading punishment,” the Court cites various international instruments, which are non-binding in nature, stating that they are of “persuasive value.” 

The reference to Justice Barak’s statement in Public Committee Against Torture in Israel v. State of Israel [“…this is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its 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.”] sums up the sentiment of the Court in holding the impugned tests to be unconstitutional. The Court thus recognizes that in a Constitutional democracy like India, the Constitution reigns supreme and whatever be the situation with which the country is faced with. This is a welcome message from the Supreme Court in testing times that we live in.