The subsequent appeals filed by Smt. Selvi et al. within the years 2004, 2005, 2006, 2007 & 2010 were collectively haunted by the constitutional bench of the Supreme Court within the sort of Special Leave Petition under Article 136 of the Constitution of India on the date 5th May, 2010. The objection raised within the current case was associated with the involuntary administration of some scientific techniques like narcoanalysis, polygraph examination and therefore the Brain Electrical Activation; or Brain- Mapping test of the accused, suspects, or witnesses in an investigation, to make the evidentiary value out of the statements recorded by such processes. The scuffle within the present case was between the desirability of efficient investigation and therefore the preservation of individual liberties. The contention of the investigating agencies was that these scientific techniques might be useful in extracting the important information out of the accused or witness, which by ordinary means could never be possible to extract.
It was further argued that such quite techniques didn’t cause any bodily harm to the victims, accused or the witnesses in any way and such information so extracted by these processes would only strengthen the investigation process and thus, wouldn't be taken as an evidentiary value within the trial stage. One such argument was also associated with the speedy justice, where it had been contended that this can increase both convictions and therefore the acquittal rates within the same manner with an efficient and reliable procedure.
In the arguments of the defence, it had been also contended that these quite scientific techniques are the softer alternative to the prevalent ‘third-degree police treatments’ during the investigation. On the opposite hand, the petitioners' argue concerning the violation of the proper to privacy and therefore the right against the Self-Incrimination as provided under Article 21 and Article 20(3) of the Indian Constitution respectively.
The following legal issues were raised within the present case:
1) Whether gathering information through the narcoanalysis, brain mapping or BEAP, FMRI (Functional Resonance Imaging), and polygraph test constitutionally valid?
2) Whether the pieces of evidence so collected amount to the violation of constitutional rights like the ‘right against self-incrimination under Article 20(3) of the Indian Constitution and Section 161(2) of Code of Criminal Procedure, 1973?
3) Whether evidence so collected amount to the violation of the proper to privacy under the ‘personal liberty’ clause of Article 21 of the Constitution?
4) If the accused remains silent and doesn't answer any questions of the investigating agencies then to what extent the investigating agencies can coerce or force the accused to reveal information?
Article 20(3) asserts that no person who is accused of any offence, be compelled to be a witness against himself although an accused person may of his own accord make a voluntary statement on the charge against himself, a justice, before receiving such statement from him is required to caution him that he's not obliged to mention anything which what he does say could also be given conspicuous against himself. Hence also here arises the rule that evidence of a confession by the accused isn't admissible unless it's proved that such confession was free and voluntary. The subsequent right has also been derived from the Latin maxim “Nemo tenetur seipsum accusare”, which suggests that no one, not even the accused himself can be compelled to answer any question, which can tend to prove them guilty of any criminal offense, they have been accused of the supply infers that ‘It may be a right available to an individual accused person, of an offence. It's a protection against “compulsion to be a witness”, it is a protection against such “compulsion” leading to his giving evidence “against himself”.
Regarding the concept of Privacy, it is often said that although it's not been specifically mentioned within the Constitution, it's been innately imbibed within Article 21 of the Constitution under the concept of the proper to life and liberty. It got its foundation within the case of Kharak Singh v. the State of U.P., but within the very case the majority of the judges (5 out of seven judge-bench) held that the right to privacy wasn't a right guaranteed under the Article 21, but two of the judges held that right to privacy was the neighborhood of Article 21 of the Constitution.
The decision of this case was delivered by the three-judge honorable bench namely K.G. Balakrishnan C.J.I and R.V. Raveendran J. and J.M. Panchal J, Justice Balakrishnan held that false testimony given by the accused person under any influence of coercion, threats, or inducements during the investigation is undesirable. Justice Balakrishnan further held that the target of the ‘the right against self-incrimination’ is first, to form sure the reliability of the statements made by an accused and second, to form sure that such statements are made voluntarily. There are several ways during which the involuntary administration of either of the tests is often described because of the restraint on ‘personal liberty’. The most important way is a physical force, but the drug-induced revelations or the substantive inferences drawn from the measurement of the subject’s physiological responses are often described as a violation of mental privacy. it had been also held that an individual could only say such self- incriminating statements against himself under the influence of such tests. it had been also held that due to these tests an individual undergoes no physical harm of any penal nature, but it subsequently results in the custodial abuse, surveillance, or undue harassment during the amount of the investigation. In some instances, it's been observed that such video and sound recording of the accused after such tests have been leaked to the media, which is sort of problematic and defamatory also. it's going to also cause the ‘trial by media’, which cannot be beneficiary to the accused. it had been further added that such right to privacy doesn’t grant the absolute right, because the consistent with the provisions of the Code of Criminal Procedure it's been established that police have the powers of arrest, detention, interrogation, search, and seizure. Also, an inexpensive degree of the coercive powers by the police authorities during an investigation is permissible till the time it's not violative of criterion like ‘fairness, non-arbitrariness, and reasonableness.’ The ‘rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 provides that the concept of ‘personal liberty’ under Article 21 of the constitution must be read in consonance with the concept of ‘right to privacy’ under Article 20(3) of the Constitution. The importance of private autonomy in aspects like the selection between remaining silent and speaking must be recognized.
Finally, the court held that the scope of Article 20(3) extends to the investigative stage in criminal cases and Section 161(2) of the Code of Criminal Procedure protects accused persons, suspects, and also as witnesses who may be examined during an investigation. Also, Article 20(3) provides an individual to settle on between to talk and to stay silent. Article 20(3) aims to stop the forcible ‘conveyance of private knowledge that's relevant to the facts in issue’. The Court further held that these tests can't be inferred as a result of the statutory provisions which enable checkup during investigation in criminal cases, i.e. the reason to Sections 53, 53-A, and 54 of the Code of Criminal Procedure, 1973.
The Court held that these tests haven't any place within the judicial process. On the contrary, it'll disrupt proceedings, cause delays, and cause numerous complications which can end in no greater degree of certainty within the process than that which already exists.
On the idea of the above discussion, it is often derived that even the scientific techniques of Polygraph and Narco-analysis even have certain restrictions and there is a scope of errors. Also, it is often said that since these tests are used to record the change within the physiological responses, but rather than that when these tests are conducted involuntarily on the accused without his consent, it generally causes the emotions like fear, anxiety, confusion, etc. The psychological state of the accused generally produces highly abnormal physiological responses, which could mislead to the examiner and there's a fear of loss of memory or ‘memory hardening’ of the accused because he’s been constantly asked within the intervening time-periods. The Supreme Court by this prolonged judgment held that the Polygraph, Brain-mapping, and Narco-analysis are cruel, inhuman, and degrading treatment, thus can't be permitted.