Privacy, Self-Incrimination and the Constitution – IV: Selvi and the Middle Way

Selvi vs State, decided by a three-judge bench in 2010, is the Supreme Court’s most recent – and by far most detailed – engagement with Article 20(3). Selvi involved a batch of appeals challenging the constitutionality of three investigative techniques: narco-analysis, the polygraph test, and the Brain Electrical Activation Profile. The nature of these processes is important. In narco-analysis, an intravenous injection of a drug into a subject’s blood-stream sends her into a hypnotic state, lowering her inhibitions, and making her more likely to divulge information.  In discussing the comparative jurisprudence on narco-analysis, the Court quoted both Horvath vs The Queen, which we had discussed in the last post, and the American Supreme Court case of Townsend vs Sain, in which Warren J. held that “if an individual’s “will was overborne” or if his confession was not “the product of a rational intellect and a free will,”, his confession is inadmissible because coerced.”

A polygraph test, on the other hand, measures various physiological responses (respiration, blood pressure, blood flow etc.) during questioning, and makes determinations about the truth or falsity of the subject’s statements, based on the changes in those responses.  Similarly, the Brain Electrical Activation Profile (BEAP) test measures responses within the brain, in order to ascertain whether or not the subject has recognised the stimuli to which she has been exposed.

Obviously, out of these three tests, only narco-analysis involves “testimony” in the classic sense: communicating information through words, written or spoken. One of the central issues in the case, therefore, was whether recording physical stimuli amounted to compelling a person to be a “witness against himself”. It is in this backdrop that the Court embarked upon a detailed analysis of whether these investigative procedures fell foul of Article 20(3). Up front, it laid out the conceptual foundations of the Article:

“Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily… when a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the `rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable… the concerns about the `voluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements – often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, `the right against self-incrimination’ is a vital safeguard against torture and other `third-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such `short-cuts’ will compromise the diligence required for conducting meaningful investigations.” (paras 91 and 92)

The first of the Court’s rationales – reliability – straightforwardly corresponds to the crime-control model. The second – voluntariness – seems, at first sight, to correspond to the due process model, but in answering the question, “why is voluntariness important?”, the Court complicates the issue: it mentions bodily integrity and dignity (in the context of torture and other third-degree methods), but also notes that the “diligence” required for “meaningful investigations” will be “compromised” if the investigators can take short-cuts such as torture. It is unclear, therefore, that even within the “voluntariness” framework, whether the focus is on (due-process based) concerns of dignity and integrity, or of (crime-control based) diligent investigations.

After examining a plethora of precedents on self-incrimination the world over, the Court then clarified some of the basic tenets of Article 20(3): “accused of an offence” covered a wide ambit, that included people formally charged of offences, as well as people whose answers could expose them to criminal charges (paragraph 109); incriminatory statements included statements that the prosecution could directly rely upon to further its claims, as well as derivative statements. The corse of the Court’s analysis, however, was in examining whether “testimonial compulsion” was involved in the three impugned techniques. Precedent – as we have seen – drew a distinction between testimony and physical evidence (fingerprints, blood samples etc.) In Kathi Kalu, this distinction had been rationalised on the ground of “volition”, in the sense of unchangeability. Under this logic, narco-analysis would be borderline unconstitutional (depending on whether or not you take answers given under hypnosis to be “volitional” or not), whereas polygraph tests and brain-mapping would be definitively constitutional.

This argument was buttressed by the fact that Ss. 53 of the CrPC allows for the examination of the accused on the request of the police, of “blood, bloodstains, semen… sputum… sweat…” etc., through the use of “modern and scientific techniques including DNA profiling and such other tests…” It was argued that the three impugned techniques ought to be read into this Section. The Court, however, rejected this argument, holding that S. 53 clearly referred only to the examination of “bodily substances”, whereas the impugned techniques involved “testimonial responses” That, however, is not self-evident: what is it about physiological reactions of the brain and other parts of the body, that put them within the category of “testimonial responses”?

The Court answered this question by going back to Kathi Kalu, and holding that a testimonial act is equivalent to “the imparting of knowledge by a person who has personal knowledge of the facts that are in issue.” (paragraph 158) And then the Court noted:

Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact.” (Para 160)

And, immediately afterwards:

“The compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a `positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.”

Of course, in a trivial way, being forced to provide a blood sample or a fingerprint also involves conveying personal knowledge (of your blood group or your fingerprint pattern) irrespective of your volition. In earlier cases, the Court had gotten around that by arguing that a blood sample or a fingerprint was innocuous in itself – only when subsequently corroborated with another piece of evidence (fingerprints at the scene of the crime), did it become incriminatory. However, that reasoning is not open to the Court here, because physiological responses to stimuli are also innocuous in themselves. On the other hand, it seems clear from paragraph 160, that what the Court was concerned about was – in a phrase – the privacy of the mind. This becomes clearer subsequently, when after an excursion into the constitutional right to privacy under Article 21, the Court noted:

While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the `right to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes... so far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty’ under Article 21. Hence, our understanding of the `right to privacy’ should account for its intersection with Article 20(3). Furthermore, the `rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self-incrimination.” (Paras 190 – 193)

The shift from Kathi Kalu is crucial. In that case, “volition” – in the sense of changeability – played the crucial role, and we saw how it was conceptually connected with the crime-control model: information that you had no power to change could not possibly be fabricated. In Selvi, although the Court embarked upon a discussion of the reliability of the investigative techniques, ultimately, the distinction it drew was between “physical privacy” (blood samples, fingerprints) and “mental privacy”; linking the word “witness” to testimony, and then understanding “testimony” as the impartation of information present within a person’s mental sphere, the Court placed a certain conception of mental privacy – understood as autonomous mental processes – at the heart of the guarantee against self-incrimination.

While the result of Selvi was the unconstitutionality of three specific investigative procedures, its implications for criminal/constitutional jurisprudence are more significant. In Selvi, we have a strong recognition of the role of the due process model as the foundation of criminal procedure and associated constitutional guarantees. It therefore provides a template for future cases where the crime-control model and the due process model pull in opposite directions, and the Court is obliged – as it was in Selvi – to balance the two.

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Filed under Article 20(3), Criminal Law and the Constitution, Privacy, Self-Incrimination

One response to “Privacy, Self-Incrimination and the Constitution – IV: Selvi and the Middle Way

  1. Pingback: The Gujarat High Court’s Voice Spectrography Judgment, and the Limits of Selvi vs State | Indian Constitutional Law and Philosophy

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