Privacy and the Criminal Process: Selvi v State of Karnataka

22 Pages Posted: 22 Apr 2018  

Gautam Bhatia

Yale University - Law School

Date Written: April 22, 2018

Abstract

In Selvi v State of Karnataka, the Supreme Court of India declared that three prominent police interrogation techniques narco-analysis, the lie-detector test, and brain-mapping - violated an accused person’s right against self-incrimination under Article 20(3), and her right to life and personal liberty under Article 21 of the Constitution. In this essay, I shall argue that Selvi was a transformative judgment because of the way in which it understood and articulated the relationship between the individual and the State in the context in which the imbalance of power between the two is at its highest: when the individual is an accused criminal, and the State is the interrogator. I shall begin by describing two competing philosophies that underlie criminal legal regimes: the crime-control model, which views the accurate solving of crime to be the highest goal of the law, and the due process model, which holds that even for the detection of crime, there are lines that the State cannot cross – lines grounded in the belief that certain individual rights are inviolable (I); I shall then demonstrate how the Supreme Court’s early judgments on Article 20(3) were delivered within the framework of the crime-control model (II), and how Selvi departed from this understanding in its interpretation of the words “voluntary” and “compelled” (III). I shall conclude by contending that Selvi’s embrace of the due process model is correct in light of our pre-constitutional experience of an authoritarian State and the decision of the framers to elevate the guarantee of self-incrimination from a procedural safeguard to a constitutional right (IV). Furthermore, it has important implications for our understanding of the limits that the Constitution and the Code of Criminal Procedure impose upon the police and upon the criminal investigation process (V).

Keywords: Self-Incrimination, Constitutional Law, Privacy, Indian Constitutional Law

Suggested Citation

Bhatia, Gautam, Privacy and the Criminal Process: Selvi v State of Karnataka (April 22, 2018). Available at SSRN: https://ssrn.com/abstract=3166849 or http://dx.doi.org/10.2139/ssrn.3166849

Gautam Bhatia (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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