Smt. Selvi & Ors.  V.  State of Karnataka

Smt. Selvi & Ors. V. State of Karnataka

Narco Analysis Test Cannot Be Forcibly Conducted On An Individual: Supreme Court Held In Selvi V. State Of Karnataka [2010]

The Uttar Pradesh Government has reportedly ordered to conduct polygraphic and narco analysis test on the accused, victim’s relatives and even police officers involved in the probe. This piece intends to examine the legality of ‘ordering’ narco analysis test in the light of a Supreme Court judgment delivered a decade ago in Selvi vs. State Of Karnataka.

 In Selvi, a three judge bench of the Supreme Court observed that the compulsory administration of the techniques like analysis tests constitutes ‘cruel, inhuman or degrading treatment’ in the context of Article 21. In conclusion, the court held that no individual should be forcibly subjected to such tests, whether in the context of investigation in criminal cases or otherwise, as the same would amount to an unwarranted intrusion into personal liberty. It was also held that such techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure.

The court, however, observed that voluntary administration of such techniques in the context of criminal justice is permissible, provided that certain safeguards are in place. “Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot 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, 1872.”, the court clarified.

The judgment finally reproduced ‘Guidelines for the Administration of Polygraph Test (Lie 249 Detector Test) on an Accused’ published by National Human Rights Commission and directed that they should be strictly adhered to and similar safeguards should be adopted for conducting the ‘Narcoanalysis technique’ and the ‘Brain Electrical Activation Profile’ test.

(i). No Lie Detector  Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.

(ii).If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.

(iii). The consent should be recorded before a Judicial Magistrate.

(IV).During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.

(v). At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.

(vi). The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.

(vii). The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.

(viii). A full medical and factual narration of the manner of the information received must be taken on record.

When one reads the judgment holistically, the above guidelines are applicable to conduct tests on victims as well.

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