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Indian Supreme Court in Selvi v. State of Karnataka: Is a Confusing Judiciary Worse than a Confusing Legislation?

Verfassung und Recht in Ubersee, Journal of Law and Politics in Africa, Asia & Latin America, (2011) Vol. 44, No. 4 (Nomos Publishers, Germany)

15 Pages Posted: 21 May 2012  

Ashish Goel

National University of Juridical Sciences

Date Written: January 30, 2011


This note is an analysis of the issue of constitutionality of administration of scientific tests during investigation in criminal cases. In an attempt to re-assess the Indian laws prohibiting “self-incrimination” in a criminal case, this note highlights the patent flaws in the reasoning given by the Indian Supreme Court in Smt. Selvi v. State of Karnataka on the issue of administration of scientific tests by investigation agencies. In other words, this note addresses the fundamental question: whether the court was correct in holding that “involuntary” administration of scientific tests is not only inadmissible under the criminal legislative framework but is also unconstitutional. Observing that any person “supposed to be acquainted with the facts and circumstances” in a criminal case has the right against “torture” and also the right to “mental privacy,” Judge Balakrishnan (speaking for the majority) reiterated the proposition laid down in an earlier decision that the use of certain scientific tests during investigation or trial stage results into the “dilution of constitutional rights” and at the same time “comes into conflict with the right to fair trial.” To arrive at this conclusion, the Judge drew comfort from the rights enumerated or otherwise implicit in the Indian Constitution and also the procedural laws which form the basis of criminal justice system. The Judge also suo moto questioned and eventually dismissed the validity, reliability, and usefulness of certain scientific tests stating that they are susceptible to the discovery of “false” and “misleading information.”

However, the Judge has categorically held that evidence subsequently discovered on the basis of information obtained from “voluntary” administered tests, is admissible in a court of law.

In this note, I will argue that, Judge Balakrishnan has not only disputed his own reasoning and argumentation but has also further confused the citizens who were previously uncertain about the import of laws they were subject to. In contrast to the judicial task of constructive interpretation, the conclusions arrived at by the Judge are devoid of any logic, and raise more questions than he has answered or sought to do so. The failure to acknowledge the obvious distinction between “statutory” and “fundamental” rights coupled with non-observance to the fundamentals of constitutional adjudication best demonstrate one aspect of this judicial confusion. It seems that the same Judge who had set on the constructive task to analyze confusing laws has now become the greatest source of confusion. But this was expected because the legal materials that the Judge had used to address the confusions are no less confusing themselves. But there arises a question: is a confusing judiciary worse than a confusing legislation?

In an attempt to extricate the confusions created by this “historic” judgment, this note is divided into five small sections. Section two introduces the constitutional-legislative framework to readers of non-Indian jurisdiction for their greater appreciation of the domestic laws that regulate admissibility of “incriminating” evidence in a court of law and then attempts to rectify the critical errors made by the Judge in their interpretation. Section three puts the legal position in perspective and is a critique of the methods employed by the Judge in concluding that administration of “involuntary” scientific tests will necessarily violate the concomitant rights guaranteed under the Indian Constitution. Section four addresses this issue from a “victim-centered approach” and argues that since the Judge has overlooked a particular aspect of constitutional adjudication, the judgment is bad in law. The final segment of this note concludes with a discussion on the judicial reluctance to incorporate later social, economic and political developments as a powerful interpretive tool, which should inform the contents of judicial law making.

Keywords: Indian Constitution, Supreme Court of India, scientific tests, criminal law, Selvi v State of Karnataka

Suggested Citation

Goel, Ashish, Indian Supreme Court in Selvi v. State of Karnataka: Is a Confusing Judiciary Worse than a Confusing Legislation? (January 30, 2011). Verfassung und Recht in Ubersee, Journal of Law and Politics in Africa, Asia & Latin America, (2011) Vol. 44, No. 4 (Nomos Publishers, Germany). Available at SSRN:

Ashish Goel (Contact Author)

National University of Juridical Sciences ( email )

12, LB Block, Sector III
Salt Lake City
Kolkata, 700 064

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