"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.

Friday, October 1, 2010

Selvi v. State of Karnataka Contd...

Ever thought, a marriage against the wish of the parents could lead to the loss of life of the partner and settling of constitutional issues relating to admissibility of Narcoanalysis, Polygraph and BEAP tests. These tests have conducted by the investigating agencies without the consent of the test subjects but sometimes with the consent of the courts. The conduct of such tests has been a hotbed of litigation with different High Courts registering contradictory opinions. The Supreme Court in Selvi has put the matter to rest for the time being holding involuntary tests as violative of Constitutional Law.

In an earlier post I had done an overview of the case. This post is roving enquiry into some of the issues raised in the case relating to Constitutional Law, to be more specific vis-à-vis Art. 20 (3).

The first issue raised by the court was whether the involuntary administration of the impugned techniques violates rights against self incrimination under Art. 20 (3) of the Constitution? It had two sub issues; Issue 1 A, whether the investigative use of the impugned techniques create a likelihood of incrimination for the subject? Issue 1 B, Whether the results derived from the impugned technique amount to ‘testimonial compulsion’ thereby attracting Art. 20 (3)?

The court dealt with the first issue on a wide canvass. It first established the interrelationship between the right against self-incrimination and the right to fair trial, locating this in the realm of human rights. Drawing from Maneka it held that Art. 20 (3) should be construed with due regard to the interrelationship between rights. For the court, the right in Art. 20 (3) should be seen in relation with multiple dimensions of personal liberty under Art. 21, which include right to privacy, right to fair trial and substantive due process. Infusion of constitutional values into all branches of law, including procedural areas should be the approach and execution of such laws should bear in mind satisfaction of the claims of due process. In the ultimate analysis, involuntary administration is found to be a violation of both Articles 20 (3) and 21.

The next questions were whether the investigative use of the techniques could raise self incrimination, admissibility of the results amounts to testimonial compulsion, whether the protection is available only for the accused and also for the witnesses.

Satish Sharma [1954] SCR 1077 and Nadini Satpathy (1978) 2 SCC 424 have already laid to rest most of these issues. It was held that the protection of Art. 20 (3) extend to investigative stage and to all who are accused as well as those who apprehend that their answers could expose them to criminal charges in the case under investigation or in any other case.

Answering the question what constitutes incrimination, the court categorises three uses of statements in custody; (i) derivative use- information revealed leading to discovery of independent materials, (ii) transactional use – when the information proves to be useful for cases other than the one investigated, and (iii) identification and corroborative use – when statements/evidences are used for the purposes of identification and corroboration, for eg. handwriting, body specimen etc. Nandini Satpati came to help here too. The test is “answers that could themselves support a conviction are confessions but answers which have a reasonable tendency strongly to point out the guilt is incriminatory.” It further clarifies “if the statement contains self–exculpatory matter, it ceases to be confession. Article 20 (3) strikes at confession and self incrimination and leaves untouched other relevant factors.” ( see, Kathi Kalu Oghad [1962] 3 SCR 10). The critical question whether derivative use is compatible with Article 20 (3) is answered in the negative. The question to be answered by looking into whether compulsory administration of the tests meets the substantive due process for placing restraints on personal liberty. As these investigative techniques do not pass the tests it fail at the touchstone of Article 21 also.

To be contd...

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