"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, September 27, 2010

Surprising... they seems to be ready to give up liberty for security!

Selvi v. State of Karnataka, Criminal Appeal No. 1267 of 2004, Date of Judgment 05/05/10

The Constitutional Law Society of NUJS conducted a panel discussion on 23rd of this month on three aspects of this decision; constitutional, procedural and evidence law and national security dimensions. I had occasion to present certain constitutional issues of the case and open the floor for discussion. This gave me a chance to read the case closely to appreciate some of its finer points which I presume have not got much attention of Constitutional Scholars.

The debate about this judgment so far has been mainly surrounded on the concerns of the national security as to how the now disallowed Narcoanalysis, Polygraph Test and BEAP could have helped to prevent and detect terrorist activities. For many, this is a chance lost to diffuse the ‘ticking bombs.’

It was surprising to find students’ responses that perceive liberty and security as binary opposites. It was disheartening to hear them arguing for giving up their liberties for apparent threats against security. Was wondering whether paranoia has struck that hard on this generation!

Anyway, I am not at it specifically. The case to me gave some interesting vantage points. Ultimately, the court held that compulsory brain-mapping and polygraph tests and narcoanalysis were in violation of Articles 20(3) and 21 of the Constitution. The highlights of the case, for me, are the following

  1. Radiation of constitutional rights into statutes, including procedural laws
  2. Reiteration of Maneka position that rights are not islands. The impugned tests have to pass not only the test of Art. 20 but of Art. 21
  3. The explicit use of substantive due process in the reasoning
  4. Interpretative tools used; the court has liberally quoted and allowed to be persuaded by foreign judgments. Quoted even a Israeli Supreme Court Decision
  5. Debunking the notion that security is at the cost liberty

To be Contd...

1 comment:

Anonymous said...

Hi Ma’am,
It is difficult to accept that this decision has brought substantive due process to the fore in Indian constitutional adjudication. The Court was merely deciding on the constitutionality of certain practices in criminal investigation- things which occupy the realm of procedure. And the only legislations I saw being cited were CrPC and Indian Evidence Act, no provisions of any substantive law. So, shouldn’t the procedural due process stipulation have sufficed to reach the same conclusion? Also, Art. 20(3) may have been enough even if the procedural due process requirement was not adhered to. Similar views have been voiced about R Gandhi’s case too, but they are as problematic. Or may be, I just fail to understand what substantive due process means.