IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9714 OF 2010
[Arising out of SLP (C) No. 28504 of 2008]

ATLURI BRAHMANANDAM (d) THR. LRS. ….Appellant

Versus

ANNE SAI BAPUJI …Respondents

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. The present appeal filed by the appellant herein arises out of an order passed by the High Court of Andhra Pradesh at Hyderabad in Appeal Suit No. 2185 of 1989 whereby the High Court has dismissed the appeal filed by the appellant herein and affirmed the judgment and decree passed by the trial court in favour of the respondent.

3. The appellant herein was the defendant in the suit filed by the respondent seeking for a decree for possession and future mesne profits with interest at the rate of 6% per annum and for payment of Rs.4,500/- with interest at the rate of 6% per annum till realization. One of the contentions which was raised in the suit was that the respondent/plaintiff was the adopted son of Late Anne Seetharamaiah and if the findings are in the affirmative, in that event, he would be entitled to claim for recovery of possession of the scheduled land.

4. The case of the respondent-plaintiff in the suit was that in 1965, one Myden Saheb of Atkuru Village in Gannavaram Taluk of Krishna District filed a small cause suit being S.C. No. 44 of 1965 against Atluri Brahmanandam of the same village. The suit was decreed by the Court of District Munsif, Nuzvid for an amount of Rs. 355/-. Consequent upon the passing of the said decree, the decree-holder Myden Saheb filed E.P. No. 29 of 1967 during the course of which the judgment-debtor’s agricultural wet land admeasuring Acs. 1.78 was sold in auction in which Anne Seetharamaih purchased the same for Rs.5,900/-. The auction purchaser is the adopted father of Anne Sai Bapuji, who filed the present suit in the Court of Subordinate Judge, Vijaywada which was later transferred to the Court of Subordinate Judge, Gudivada.

5. The respondent-plaintiff had stated in the plaint that after Seetharamaiah purchased the property in Court auction on 26.4.1968, Brahmanandam filed various applications in E.P. No. 29 of 1967 and prevented delivery of possession. However, the Court delivered the possession to Seetharamaiah on 10.7.1974. It was, however, contended that by taking advantage of pendency of Miscellaneous Appeal in the High Court, Brahmanandam trespassed into suit scheduled property in January, 1975 and obtained wrongful possession. It was also contended that Anne Sai Bapuji, the respondent herein, is the adopted son of Late Anne Seetharamaiah who died intestate on 7.8.1981, as a result of which all his properties devolved on respondent and, therefore, he is entitled to a decree for recovery of possession.

6. The appellant herein who was the defendant denied that the respondent is the adopted son of Late Seetharamaiah. He also denied delivery of possession on 10.7.1974 and contended that the aforesaid auction sale is liable to be set aside. It may be mentioned at this stage that the appellant herein did not file any separate suit seeking to setting aside the auction sale in which the adoptive father of the respondent purchased the said property. Without filing such a suit against the sale by which the appellant has been divested of the title to the property, the appellant cannot claim to be the owner of the suit property. But the present suit was filed by the respondent seeking for decree delivery of possession which was also contested by the appellant and, therefore, we are required to examine the contention of the learned counsel appearing for the parties and to decide the lis between them.

7. The main issue, therefore, in the present appeal on which extensive argument was made is as to whether or not the respondent was the adopted son of Late Anne Seetharamaiah. In the plaint filed, the respondent claimed himself to be the adopted son of Late Seetharamaiah. During the trial of the suit, the appellant also relied upon and proved Ex. A-8. Relying heavily on the said document, it was contended by the respondent that in terms of the said document, the respondent should be held to be the legally and validly adopted son of Anne Seetharamaiah.

8. In view of the pleadings of the parties and the judgment and decree passed by the High Court upholding the judgment and decree passed by the trial court in favour of the respondent, two contentions were mainly urged before us by the learned counsel appearing for the appellant. According to him, there was no adoption of the respondent by the adoptive father as alleged and secondly, since the respondent was more than 15 years of age on the date of the alleged adoption, he could not have been validly adopted without proving any customs in favour of such adoption. In support of the aforesaid contentions, the counsel of the appellant referred to and relied upon the provisions of Section 10 (iv) and Section 16 of the Hindu Adoption and Maintenance Act, 1956.

9. We have perused the records which are placed before us including the deed of adoption which is placed on record by the respondent and proved as Ex. A-8. The said Ex. A-8 is dated 27th April, 1966 and incidentally, is a registered deed of adoption. The recital in the said deed of adoption is that the natural parents of the respondent had given the respondent aged about 18 years and unmarried on the said date in the presence of elders and in accordance with the provisions of the Hindu Adoptions and Maintenance Act, 1956 to Anne Seetharamaiah, who was issueless and, hence, the adoption. It also recited that the aforesaid adoption is in accordance with the customs prevailing in the “Kamma” community in Andha Pradesh.

10. The aforesaid deed of adoption was produced in evidence and the same was duly proved in the trial by the evidence led by PW-1, the respondent. We have carefully scrutinized the cross-examination of the said witness. In the entire cross- examination, no challenge was made by the appellant herein either to the legality of the said document or to the validity of the same. Therefore, the said registered adoption deed went unrebutted and unchallenged. We have already referred to the recitals in the said documents which is a registered document and according to the recitals therein, the respondent was legally and validly adopted by the adoptive father Late Anne Seetharamaiah and that such adoption even beyond the age of 15 years is permissible and recognized in the “Kamma” community of Andhra Pradesh. All these factors also go unrebutted and unchallenged.

11. Section 10 and Section 16 of the Hindu Adoptions and Maintenance Act, 1956 of which reference was made during the course of arguments read as follows:-
“10. No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-
(i) . . .
(ii) . . .
(iii) . . .

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

16. Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.”

12. We are concerned for the purpose of this case with clause (iv) of Section 10 which provides that a person to be adopted should not have completed the age of 15 years. But there is also an exception provided therein to the aforesaid required qualification which provides that if there is a custom or usage applicable to the parties permitting persons who have completed the age of 15 years being taken in adoption, such a person could also be validly adopted. On the other hand, the effect and the implication of Section 16 of the Act is that if there is any document purporting to record an adoption made and is signed by the person giving as well the person taking the child in adoption is registered under any law for the time being in force and if it is produced in any Court, the Court would presume that the adoption has been made in compliance of the provisions of the Act unless and until it is disproved.

13. There is no denial of the fact in the present case that the respondent was more than 15 years of age at the time of his adoption. But the respondent has relied upon the exception provided in section 10 (iv) and has proved by leading cogent and reliable evidence like Ex. A-8 that there is a custom in the “Kamma” community of Andhra Pradesh for adoption of a boy even above the age of 15 years. Therefore, the aforesaid exception which is engrafted in the same part of the provision of Section 10 of the Act was satisfied. Since the aforesaid custom and aforesaid adoption was also recorded in a registered deed of adoption, the Court has to presume that the adoption has been made in compliance with the provisions of the Act, since the respondent has utterly failed to challenge the said evidence and also to disprove the aforesaid adoption.

14. Reference has also been made to a Division Bench decision of the Andhra Pradesh High Court reported in 1964 Andhra Weekly Reporter p.156. In the said decision, the Division Bench has recognized that there is a custom among the members of the “Kamma” caste to adopt a boy of more than 15 years old and that such custom is valid. The said decision rendered by a Division Bench in 1964 has stood the test of time and has remained binding till date.

15. In the case of Ujagar Singh v. Mst. Jeo reported in AIR 1959 SC 1041, this Court has held that the ordinary rule is that all customs general or otherwise have to be proved, but under Section 57 of the Evidence Act, 1872 nothing need to be proved of which the Court can take judicial notice. It was also held that when a custom has been repeatedly recognized by Courts, it is blended into the law of land and proof of the same would become unnecessary under Section 57 of Evidence Act, 1872.

16. The aforesaid decision is squarely applicable to the facts and circumstances of the present case. The Andhra Pradesh High Court has recognized such a custom among the “Kamma” community of Andhra Pradesh of taking in adoption of a person even above the age of 15 years of age and has held the same to be legal and valid.

17. In view of the above discussion, we find no infirmity at all in the findings of the trial court which were affirmed by the High Court that the adoption of the respondent by Late Anne Seetharamaiah is legal and valid. We, therefore, find no merit in this appeal which is dismissed but we leave the parties to bear their own costs.

……………………………………..J
[Dr. Mukundakam Sharma ]

……………………………………..J
[ Anil R. Dave ]

New Delhi,
November 18, 2010.

The post Atluri Brahmanandam (D) Thr.Lrs Vs. Anne Sai Bapuji appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10325 OF 2010
[Arising out of SLP [C] No. 163 of 2010]
T.G. Ashok Kumar … Appellant
Vs.
Govindammal & Anr. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Notice to respondents was issued limited to the question whether the High Court ought to have decreed the appellant’s suit for declaration and consequential injunction at least in respect of the portion of the suit property which was allotted to the share of second respondent in the earlier partition suit filed by the first respondent. Leave is granted only in regard to that question.

2. The appellant was the plaintiff in a suit for declaration of title and permanent injunction in regard to the suit property, that is, a plot measuring East to West : 49 feet and north south 81 feet, total extent of 3969 sq.ft (forming part of Natham Survey No. 178 (New No. 137-138) of a total extent of 4 acres 25 cents situated at Kakkalur Village, Tiruvallur Taluk and District). The appellant filed the said suit in the year 2000 in the court of Subordinate Judge, Thiruvallur (OS No.68/2000) subsequently transferred and renumbered as OS No. 138 of 2004 on the file of the District Munsiff, Thiruvallur.

3. The case of appellant in brief is as under: that the suit property was purchased by the second respondent under sale deed dated 4.3.1957; that she was in possession and enjoyment of the suit property as absolute owner and had mortgaged it in favour of appellant’s sister (T.N. Latha) on 30.6.1983; that second respondent sold the suit property in favour of the appellant under sale deed dated 11.4.1990 and delivered possession thereof to him in pursuance of the sale; that though the suit property was the self acquired property of the second respondent, the first respondent who is her step- daughter, filed a collusive suit against the second respondent in OS No. 8/1985 on the file of the Sub-ordinate Judge, Thiruvallur alleging that the suit property and several other properties belonged to her father Ekambara Reddy and that she and second respondent had each an half share in those properties; that the appellant is a bona fide purchaser of the suit property from second respondent and he was unaware of the pendency of the said suit for partition in O.S. No.8/1985; that subsequently the said suit for partition filed by the first respondent was decreed vide preliminary decree dated 17.3.1994 holding that the first respondent was entitled to half share in the properties described as Items 1 to 6 in the partition suit schedule (which included the suit property (as Item No.6); that in the final decree proceedings, a Commissioner was appointed to divide the properties; that on the basis of the Commissioner’s report, a final decree was passed on 7.4.2000 dividing the properties; that on account of collusion between first and second respondents, the Commissioner’s report divided the suit property in a manner that nearly three fourth portion of the suit property was allotted to the share of the first respondent and only about a one-fourth portion was allotted to the share of the second respondent; and that adversely affected his right and title to the suit property and therefore it became necessary for him to file a suit for declaration of his right and title to the suit property with a consequential permanent injunction.

4. The first respondent resisted the suit contending that the appellant had purchased the suit property during the pendency of her suit for partition and that being a purchaser pendente lite, the sale in his favour was hit by the doctrine of lis pendens and therefore he could not claim any right in the suit property. She asserted that the suit property was not the self-acquired property of the second respondent, and that the suit property was purchased by her father in the name of the second respondent. She denied that there was any collusion between her and the second respondent. The second respondent did not contest the suit.

5. The trial court by judgment dated 6.7.2005 dismissed the appellant’s suit. It held that the suit property was not the self acquired property of second respondent and that there was no collusion between first and second respondents; and that the appellant having purchased the suit property under sale dated 11.4.1990 during the pendency of the suit for partition (OS No.8/1985) filed by the first respondent against the second respondent, the sale in his favour was hit by the doctrine of lis pendens and that therefore the appellant did not get any title to the suit property and he was not entitled to the relief of declaration and injunction sought by him. The appeal filed by the appellant was dismissed by the first appellate court by judgment and decree dated 26.3.2008. The second appeal filed by the appellant was dismissed by the High Court by the impugned judgment dated 1.9.2009 by holding that appellant was a pendente lite purchaser, attracting the doctrine of lis pendens under Section 52 of Transfer of Property Act, 1882 (‘Act’ for short) and therefore the courts below were justified in ignoring the purchase by appellant. Feeling aggrieved the appellant filed the present appeal.

6. The partition suit was decreed holding that the first respondent was entitled to half share in the six properties which were the subject matter of partition suit including the suit property. In the final decree proceedings, an equitable division was made accepting the report of the Commissioner who had divided the suit property as per the sketch (Ex. C-5) resulting in approximately three-fourth of the suit property (vacant site portion) being allotted to the first respondent and only the remaining one-fourth of the suit property (site with house thereon) being allotted to the second respondent. The contention of the appellant that the partition suit by the first respondent against the second respondent was collusive, and that the suit property was the self acquired property of the second respondent and the first respondent did not have a share therein, have been concurrently negatived. The alternative contention of the appellant that even if the first respondent had a half share therein, the division and allotment of the properties in the partition suit ought to have been made in a manner that the entire suit property was allotted to the share of second respondent to work out equities, was also negatived by the courts below.

7. As per the Report of Commissioner, schedule Items 1 to 5 in the partition suit were agricultural lands in all measuring 44 cents (less than half an acre) and they were divided equally by allotting 22 cents to first respondent and 22 cents to second respondent. Item No.6 was a house site with a house in the north western portion. As per the Commissioner’s sketch (Ex.C-5), it measured East to West, 48’3” on the northern side and 53’3” on the southern side and North to South : 53’9” on the eastern side and 60’3” on the western side. The entire plot was shown by the letters ‘A, B, C, D, E, F, G, H, A’ and as per the final decree based on the Commissioner’s report, the North Western portion shown by the letters A, B, I, H, A measuring East to West: 24’ on the north and 24’9” on the south, and North to South : 28’9” on the east and 29’ on the west with the house thereon (measuring 16’ x 27’3”) was allotted to the share of the second respondent; and the entire remaining portion which was of an inverted L shape shown by the letters B, C, D, E, F, G, H, I, B was allotted to the share of the first respondent. As Items 1 to 5 in the partition suit schedule were small agricultural lands, they were equally divided and it was not possible to allot Item No.6 in entirety to the second respondent.

8. The trial court, first appellate court and the High Court on appreciating the evidence have held that the partition suit was not collusive. There was a valid reason for a larger portion of Item No.6 being allotted to first respondent, as the portion allotted to the second respondent had a house therein and to equalize the value, a larger portion (vacant plot) was allotted to first respondent. Therefore this court found no reason to interfere on that score and issued notice in the special leave petition restricted to the question whether the appellant should have been granted a decree at least in regard to the one-fourth portion in the suit property that was allotted to the second respondent instead of non-suiting him in entirety. That limited issue alone arises for our consideration.

9. Section 52 dealing with lis pendens is relevant and it is extracted below :
“Transfer of property pending suit relating thereto.—During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.” x x x x x x

In Jayaram Mudaliar v. Ayyaswami (AIR 1973 SC 569) this court held that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the authority of the court which is dealing with the property to which claims are put forward. This court in Hardev Singh v. Gurmail Singh (2007) 2 SCC 404 held that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation.

10. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee’s title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee’s title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee’s right and title are saved fully or partially.

11. In this case, a suit for partition filed by the first respondent against the second respondent in the year 1985 which included the suit property, was pending in a court of competent jurisdiction as on the date of sale (11.4.1990) by the second respondent in favour of the appellant. The partition suit was not collusive. Having regard to Section 52 of the Act, the sale by the second respondent in favour of the appellant did not in any way affect the right of the first respondent (plaintiff in the partition suit) or the decree made in her favour in the said partition suit. It is thus evident that the sale by second respondent in favour of the appellant though not void, did not bind the first respondent who was the plaintiff in the partition suit. On the other hand, the sale in favour of appellant was subject to the right declared or recognized in favour of the first respondent-plaintiff under the decree passed in the pending partition suit. The sale pendente lite would therefore be subject to the decree in the partition suit. In the final decree passed in the partition suit, the major portion of the suit property shown by the letters B,C, D, E, F, G, H, I, B in the Commissioner’s sketch (Ex.C-5) was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. But in regard to the remaining portion of the suit property namely the portion shown by the letters A, B, I, H, A in the Commissioner’s sketch (Ex.C-5) which stood allotted to the share of the second respondent in the final decree in the partition suit, the sale by the second respondent in favour of the appellant is effective, valid and binding on the second respondent and to that extent, the appellant is entitled to a declaration of title and consequential injunction.

12. We are therefore of the view that the suit ought not to have been dismissed in entirety even if the sale by the second respondent in favour of appellant on 11.4.1990 was hit by the doctrine of lis pendens. The second respondent cannot avoid the sale made by her on the ground that she was held to be not the exclusive owner, in the pending partition suit. Therefore the courts below ought to have decreed the appellant’s suit in part, in regard to the portion of the suit property that fell to the share of second respondent instead of dismissing the suit.

A related suggestion to the Law makers

13. It is necessary to refer to the hardship, loss, anxiety and unnecessary litigation caused on account of absence of a mechanism for prospective purchasers to verify whether a property is subject to any pending suit or a decree or attachment. At present, a prospective purchaser can easily find out about any existing encumbrance over a property either by inspection of the Registration Registers or by securing a certificate relating to encumbrances (that is copies of entries in the Registration Registers) from the jurisdictional Sub-Registrar under Section 57 of the Registration Act, 1908. But a prospective purchaser has no way of ascertaining whether there is any suit or proceeding pending in respect of the property, if the person offering the property for sale does not disclose it or deliberately suppresses the information. As a result, after parting with the consideration (which is many a time the life time savings), the purchaser gets a shock of his life when he comes to know that the property purchased by him is subject to litigation, and that it may drag on for decades and ultimately deny him title to the property. The pendente lite purchaser will have to wait for the litigation to come to an end or he may have to take over the responsibility of conducting the litigation if the transferor loses interest after the sale. The purchaser may also face objections to his being impleaded as a party to the pending litigation on the ground that being a lis pendens purchaser, he is not a necessary party. All these inconveniences, risks, hardships and misery could be avoided and the property litigations could be reduced to a considerable extent, if there is some satisfactory and reliable method by which a prospective purchaser can ascertain whether any suit is pending (or whether the property is subject to any decree or attachment) before he decides to purchase the property.

14. It is of some interest that a solution has been found to this problem in the States of Maharashtra by an appropriate local amendment to section 52 of the Act, by Bombay Act 4 of 1939. Section 52, as applicable in the Maharashtra and Gujarat, reads thus (the amendment is shown in italics):

“52. (1) During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, if a notice of the pendency of such suit or proceeding is registered under section 18 of the Indian Registration Act, 1908, the property after the notice is so registered cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
(2) Every notice of pendency of a suit or proceeding referred to in sub-section (1) shall contain the following particulars, namely:-
(a) the name and address of the owner of immoveable property or other person whose right to the immoveable property in question;
(b) the description of the immoveable property the right to which is in question;
(c) the court in which the suit or proceeding is pending;
(d) the nature and title of the suit or proceeding; and
(e) the date on which the suit or proceeding was instituted.
x x x x x x x x x x x x

We hope that the Law Commission and the Parliament considers such amendment or other suitable amendment to cover the existing void in title verification or due diligence procedures. Provision can also be made for compulsory registration of such notices in respect of decrees and in regard to attachments of immoveable properties.

15. We may also refer to another related area where registration should be made compulsory to reduce property litigation. At present in most of the states, agreements to sell are not compulsorily registrable as they do not involve transfer of any right, title or interest in an immoveable property. Unscrupulous property owners enter into agreements of sale and take huge earnest money deposits/advances, and then sell the property to others thereby plunging the original agreement holder and the subsequent purchaser into litigation. Registration of agreements of sale will reduce such litigation. It will also assist in putting an end to the prevalent practice of entering into agreements of sale showing the real consideration and then registering the sale deed for only a part of the real consideration. If all agreements of sale are compulsorily registered, that will go a long way to discourage generation and circulation of black money in real estate matters, as also undervaluation of documents for purposes of stamp duty. It will also discourage the growth of land mafia and muscleman who dominate the real estate scene in various parts of the country. Prevention of a malaise, is always better than allowing a malaise to develop and then trying to cure it. Be that as it may.
Conclusion

16. We accordingly allow this appeal in part and set aside that part of the judgment of the High Court holding that the appellant-plaintiff is not entitled to any relief. Instead, the suit is decreed in part and declaration of title with consequential permanent injunction as prayed is granted in regard to that portion of the suit property that was allotted to the second respondent in the partition suit, that is portion shown as A, B, I, H, A in Ex.C-5 (Commissioner’s sketch) in O.S.No.8/1985. Parties to bear their respective costs.

…………………………….J.
(R V Raveendran)
…………………………….J.
(A K Patnaik)

New Delhi;
December 8, 2010.

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1. V.J. GEORGE, S/O. LATE V.V. JOSEPH, VARIAMPARAMBIL, ERATTUKULANGARA PACHALAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SHRI V.J. JOHNY (4TH 4TH APPELLANT HEREIN) VARIAMPARAMBIL, ERATTAKULANGARA, PACHALAM.

2. V.J. ANONTY, S/O. LATE V.V. JOSEPH, VARIAMPARAMBIL, ERATTAKULANGARA, PACHALAM.

3. V.J. PAUL, DO. DO. DO.

4. V.J. JOHNY, DO. DO. DO.

5. SANTHA, D/O. DO. DO.

6. ANNIE, DO. DO. DO.

7. RITA, DO. DO.

8. RANI, DO. DO. DO.

9. ALEKUTTY, DO. DO. DO.

10. CICILY, DO. DO. DO.

(APPELLANT NOS.6 TO 10 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDERS AND BROTHERS S/SHRI V.J. PAUL, V.J. ANTONY AND V.J.JOHNY, APPELLANTS 2 TO 4 HEREIN)

BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN

RESPONDENT(S) – RESPONDENT 1, 2, 4 & S5
PLAINTIFF & DEFENDANT 3, 5,& 6:
—————————————————————–
1. V.V. GEORGE, S/O. LATE V.O. VAKKAN, ASSISTANT MANAGER, NEW INDIA ASSURANCE COMPANY, RESIDING AT 28/819, KONTHURUTHUY, KOCHI (DIED)

2. V. GOPALAKRISHNAN PRABHATH GOLD COVERING, C.C. XVI/1467, THOPPUMPADY, KOCHI – 5.

3. NARAYANA KAMMATH, NETHAJI CAFE, 16/1468, THOPPUMPADY, KOCHI – 5.

4. K.T. JOSEPH, COCHIN FLOWER HOUSE & BOOK CENTRE, THOPPUMPADY (DIED)

ADDITIONAL RESPONDENTS IMPLEADED:
——————————————————–

5. CATHERINE, W/O. LATE V.V.GEORGE, VARIAMPARAMBIL, B.M.C. OLD POST OFFICE ROAD, THRIKKAKKARA, KOCHI – 21.

6. GEORGE VARGHESE @ VAKKAN, S./O. DO. DO.

7. MARIA @ MARY ANN LOUIS, D/O.DO. DO.

ADDITIONAL RESPONDENT NOS.5 TO 7 ARE IMPLEADED AS THE LRS OF DECEASED R1 VIDE ORDER DATED 3.11.2008 IN I.A. NO.1419 OF 208.

8. LILLY JOSEPH, W/O. LATE K.T. JOSEPH, COCHIN FLOWER HOUSE & BOOK CENTRE, THOPPUMPADY, KOCHI – 5.

9. JICKSON JOSEPH, S/O. DO. DO. DO.

10. LICKSON JOSEPH, S/O. DO. DO.

ADDITIONAL RESPONDENT NOS.8 TO 10 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.4 VIDE ORDER DATED 3.11.2008 IN I.A. NO.1421 OF 2008.

ADV. SRI.T.KRISHNANUNNI, SENIOR ADVOCATE FOR R1 SRI.SAJU S.A FOR R5 TO 7

THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2010, ALONG WITH SA NO. 429 OF 2001 THE COURT ON 9.4.2010 DELIVERED THE FOLLOWING:

“C.R.”

THOMAS P.JOSEPH, J.
=================================
S.A. Nos.339 & 429 of 2001
=================================
Dated this the 9th day of April, 2010

J U D G M E N T

The substantial questions of law framed for a decision are:

i. On a true construction of Ext.B2, was not the suit property and other items included in Annexures I to III thereof thrown into the firm by the retiring partners with an intention to henceforth treat the same as property of the partnership as newly constituted and in view of Section 14 of the Indian Partnership Act (for short, “the Act”) is the said document compulsorily registerable under the Indian Registration Act (for short, “the Registration Act”)?

ii. Is not a mere intention to treat individual properties as partnership properties sufficient to treat such properties as having been transferred to the partnership firm and is it legally necessary to execute any formal conveyance?

iii. Are not the covenants in Ext.B2 to execute conveyances, powers of attorney or to subscribe signatures by the retiring partners at some future point of time as and when called upon to do so by the continuing partners by way of abundans cautela non nocet, so as to ensure utilization of individual properties of the outgoing partners for purposes of the business of the firm, represented by the continuing partners?

2. M/s.V.O.Vakkan & Sons (for short, “the firm”) is a registered partnership firm which was engaged in the business of manufacturing, buying, selling and exporting coir, coir fibre, coir products, etc. While so as per Ext.B2, unregistered deed dated 08.09.1967 three of its partners – M/s.V.V.Antony, V.V.George and V.V.Job retired from the partnership with effect from that day and while making arrangements regarding liability of the retiring partners, made certain arrangements with respect to a few items of immovable properties (referred to in Annexures I to III of Ext.B2) which belonged to the retiring partners. In accordance with that arrangement the said properties were put in the possession of M/s.V.V.Joseph and V.J.George who continued as partners of the said firm. The said V.V.Joseph and V.J.George were authorised to deal with the said properties and if necessary encumber the same provided, no personal liability was created on the retiring partners. Accordingly, the said properties were subjected to an equitable mortgage in favour of the Syndicate Bank, Alappuzha (for short, “the Bank”) on 16.10.1968 for a loan availed by the firm. The Bank filed O.S.No.120 of 1972 in the Sub Court, Kochi against the firm, its then partners, M/s.V.V.Antony, V.V.George, V.V.Job and others for realisation of money by sale of the mortgaged properties. The Bank obtained a decree in its favour. In the course of execution of that decree the executing court permitted Shri V.V.Joseph to effect private sale of the said properties and liquidate the decree debt. Certain items of the said properties were sold and liability of the Bank was discharged. Shri V.V.Joseph and V.V.George applied to the executing court to direct the Bank to deliver to them Ext.B2 and the title deeds relating to the immovable properties subjected to the equitable mortgage. There were counter claims also for custody of the title deeds. The executing court as per order dated 17.06.1989 directed that the title deeds and Ext.B2 be delivered to the firm and its partners, Shri V.V. Joseph and V.J. George making it clear that dispute regarding title to the properties shall be decided in appropriate proceeding. On 08.05.1992 Shri V.V. Joseph filed O.S. No.120 of 1992 in the vacation court (District Court, Ernakulam to be filed in the Sub Court, Kochi) against Shri V.V. George (one of the partners who retired from the firm as per Ext.B2 dated 08.09.1962) seeking a decree for prohibitory injunction against alienation of the suit property (which is included in Annexures I to III of Ext.B2), inducting strangers or disturbing peaceful enjoyment of the said property claiming title and possession of the said property. Shri V.V.George filed O.S. No.282 of 1992 in the Sub Court, Kochi against Shri V.V. Joseph, V.J George and others for recovery of possession of the said property and for mandatory injunction on the strength of title claimed by him. Both the suits were tried jointly. Trial court allowed O.S. No.282 of 1992 while O.S. No.120 of 1992 ended in dismissal. Trial court took the view that title to the suit property remained with Shri V.V. George as Ext.B2, dated 08.09.1967 involved only an agreement to transfer the suit property in favour of Shri V.V.Joseph and Shri V.J. George and that plea of Shri V.V. Joseph and others that they are entitled to protect their possession under Section 53A of the Transfer of Property Act (for short, “the TP Act”) and at any rate perfected title by adverse possession and law of limitation cannot be sustained. Shri V.V.Joseph and others took up the matter in appeal. In the meantime Shri V.V. Joseph expired and his legal heirs were impleaded. First appellate court observed that Ext.B2 cannot convey title over immovable properties without obtaining a formal sale deed, hence Shri V.V. Joseph could not become absolute owner of the suit property, and confirmed other findings, judgment and decree of the trial court. Hence these appeals.

3. Shri S.V. Balakrishnan Iyer, learned Senior Advocate appearing for appellants argued that finding of the courts below that Ext.B2 did not confer title of the suit property in favour of the late V.V.Joseph is not sustainable in law or on facts. According to the learned Senior Advocate it is a case where the suit property was brought into the partnership at a time when Shri V.V. George (referred to hereinafter as the respondent) and the two others continued to be its partner and hence it became property of partnership as understood in Sec.14 of the Act. Learned Senior Advocate would contend that when property, moveable or immovable is brought into the common stock of the partnership and converted as its property, it did not require registration under the Registration Act. Learned Senior Advocate, Shri T.Krishnanunni appearing for respondent would contend that Ext.B2 only created an agreement for sale of the suit property in favour of the late V.V. Joseph and Shri V.J. George (appellant No.1) in their individual capacity and not even as partners of the firm. According to the learned Senior Advocate Ext.B2 cannot be taken as a conveyance of the suit property in favour of said V.V. Joseph and V.J. George. Any rate, even if it is assumed that Ext.B2 is a conveyance in favour of the said persons so far the property is not brought into the common stock of the partnership consisting of respondent also question of treating the said property as partnership property under Sec.14 of the Act did not arise and hence since Ext.B2 is not registered as required under the Registration Act it cannot affect right, title and interest of respondent in the suit property.

4. Section 14 of the Act reads,

“The property of the firm.-Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of business of the firm, and includes also the goodwill of the business.

Unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm.”

Lindley on “The Law of Partnership”, 14th Edition at page 444 states as under:

“The expressions partnership property, partnership stock, partnership assets, joint stock, and joint estate, are used indiscriminately to denote everything to which the firm, or in the other words all the partners composing it, can be considered to be entitled as such. The qualification “as such” is important; for persons may be entitled jointly or in common to property, and the same persons may be partners, and yet that property may not be partnership property; e.g. if several persons are partners in trade, and land is devised or a legacy is bequeathed to them jointly or in common, it will not necessarily become partnership property and form part of the common stock in which they are interested as partners. Whether it does so or does not, depends upon circumstances which will be examined hereafter.”

At page 445 it is stated,

“it is competent for partners by agreement amongst themselves to convert what is the joint property of all into the separate property of some one or more of them and, vice versa. It is also stated that whatever at the commencement of a partnership is thrown into the common stock and whatever has from time to time during the continuance of the partnership been added thereto or obtained by means thereof can be treated as partnership property.

At page 457 it is stated,

“It is competent for partners by agreement amongst themselves to convert that which was partnership property into the separate property of an individual, or vice versa. And the nature of the property may be thus altered by any agreement to that effect; for neither a deed nor (save where the property consists of land) even writing is absolutely necessary. Thus where an asset the title to which is vested solely in one partner is shown in the balance-sheet as an asset of the partnership, this would be evidence to show an agreement to treat that asset as partnership property. However, so long as an agreement is dependent upon the unperformed condition, the ownership of the property will remain unchanged.”

At page 458 the Author states,

“conversion of joint property into separate property or vice versa most frequently takes place when a firm and one of its partners carry on distinct trades; or when a change occurs in a firm either by retirement of some or one of its members or by introduction of a new partner”.

5. Halsbury’s “Laws of India” (Volume 4) at page 214 states,

“the property of the firm, subject to contract between the partners, includes all property and rights and interests in the property originally brought into the stock of the firm, or acquired by purchase or otherwise, by or for the firm or for the purpose and in the course of the business of the firm and includes also the goodwill of the business. Partners may convert that which was partnership property into the separate property of an individual partner or vice versa by agreement, express or implied”.

S.T.Desai’s “The Law of Partnership in India” (7th Edition)at page 123 states,

“that the expression property of the firm also referred to as partnership property, partnership assets, joint stock, common stock or joint estate denotes all property rights and interests to which the firm, i.e. all the partners as such, may be said to be entitled and that Section 14 furnishes a useful guide in determining and what is and what is not property of the firm but, the question must ultimately depend on the real intention and agreement of the partners”.

At page 124 the Author states,

“the general rule stated in the Section (Section 14) is applicable subject to contract between the partners. It is open to the partners to agree themselves as to what is to be treated as the property of the firm and what is to be the separate property of one or more of the partners.

Such an agreement need not be express but may be implied from the facts and circumstances of the case”.

At page 125 it is stated,

“the whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest”.

6. The Property of the partnership includes all property, rights and interests in property originally brought into the stock of the partnership or acquired by purchase or otherwise by or for the partnership or for its purposes in the course of its business. When a partner brings in his personal asset into the partnership as his contribution to the capital, an asset which till then was subject to the absolute ownership of that partner becomes subject to the rights of all the partners in the firm to share the profits of that asset and at the time of winding up of the partnership to sell the asset and claim share in the resultant asset if any (See Sujan Suresh Sawant v. Kamalakant Shantaram Desa, AIR 2004 Bombay 446). Partners may convert which was property of the partnership, moveable or immovable into separate property of the individual partner or property of the individual partners into property of the firm by agreement which may be express or implied. What is relevant is the intention of the partners. For such conversion no document, registered or otherwise is necessary. There must be some evidence to prove that intention. Such intention may even be proved by a course of conduct, for eg., by entries in the partnership books. The term ‘partnership property’ is generally used to denote everything to which the firm, i.e., all the partners qua the partners can be considered to be entitled. The partners may be entitled jointly or in common to some property, and the same persons may happen to be partners, yet the property may not be partnership property. In Morris v. Barret (1829) 148 E.R. 1228) it is stated that a legacy may be made in favour of persons who are partners in a business, those persons are jointly entitled to the legacy but the legacy will not on that account become partnership property. There should be some evidence of an intention to treat the property as part of the capital of the business. In Exparte Ruffin (See Vesey’s report, Vol. VI. Page 119) in June 1797, Thomas Cooper took James Cooper into the partnership. It was dissolved on November 3rd, 1798. Thomas Cooper assigned the buildings, premises, stock in trade, debts and effects to James Cooper. Lord Chancellor was of the opinion that joint creditors had no equity attaching upon partnership effects remaining in specie (The Nagpur High Court in Jamnadas v. Ramadtar and Others, AIR 1922 Nagpur 70 has also taken the view that any disposition of the (partnership) property by agreement of partners is effective unless made with a view to defraud the creditors). In Exparte John Owen – In Re John Bowers (See De Gex And Smale’s (Vol.IV) 1850-51 at Page 351) a sole trader, possessed of stock in trade and household furniture took two partners without any agreement that they were to participate in the profits of the concern. They brought in no capital and paid no premium. No deed or agreement was also executed. The firm became bankrupt. Question arose whether the properties were of the partnership. The Vice Chancellor held that the just inference is that there was an agreement between the three, express or implied that all the stock in trade should become property of the three. In Pilling v. Pilling (See De Gex Jones and Smith’s Reports, Page 162) a father took his two sons into partnership under articles by which it was agreed that the business should be carried on with the father’s capital which should remain his and that yearly stock taking should be made. The partnership lasted for ten years. It was held that the mode of keeping the accounts and division of profits according to it evidenced a new agreement between the parties and that the account must be taken on that footing and not on the footing of the articles. The properties were treated as property of the partnership. But property belonging to a partner as his personal property in the absence of any agreement does not ipso facto become property of the partnership for the mere reason that it was used for business of the partnership (See Firm Ram Sahay v. Bishwanath, AIR 1963 Patna 221, Sudhansu v. Manindra Nath, AIR 1965 Patna 144 and Sujan Suresh Sawant v. Kamalakant Shantaram Desa, supra). The Act does not prescribe any particular mode by which property whether moveable or immovable is to be brought into the common stock of the partnership. As soon as the partners intend that their individual property should become property of the partnership and that property is treated as property of the partnership, then, by virtue of Sec.14 of the Act it becomes property of the partnership. Conversion takes place by operation of law under Sec.14 of the Act once the intention is expressed and the property is treated as such. The same view is taken in Sahaya Nidhi (Virudha Nagar Ltd. v. Subramania Nadar, AIR 1951 Madras 209 and L.J.J. Rebello v. Chief Controlling Revenue Authority in Mysore, AIR 1971 Mysore 318. The Supreme Court in Sunil v. I.T. Commr, Ahmedabad (AIR 1986 SC 368) has stated that there is no ‘transfer’ in the general sense of that item when a partner brings his personal asset into the firm as his contribution to its capital (i.e., to the common stock). When a partner brings in his personal asset into the capital of the partnership firm as his contribution to the partnership he reduces his exclusive rights in the asset to shared rights in it with the other partners of the firm. While he does not lose his rights in the asset altogether what he enjoys is an abridged right which cannot be identified with the fullness of the right which he enjoyed in the asset before it was brought into the partnership. What was the exclusive interest of a partner in his personal asset is, upon its introduction into the partnership firm as his share to the partnership capital transformed into a shared interest with the other partners in that asset.

7. Even when conversion of individual immovable property of the partner into property of the partnership is made as per a written instrument, it does not require registration compulsorily. A deed of release of his share in the partnership by a partner even though the partnership owns immovable property is not required to be registered as an instrument under Sec.17(1)(b) of the Registration Act. That is because even though a partner may be a co-owner of partnership property, he has no right to ask for a share in that property, but only that the partnership business be wound up including sale of the immovable property and to ask for his share in the resultant assets. That interest of a partner in the partnership assets, of moveable or immovable property is not a right, title or interest in immovable property within the meaning of Sec.17(1)(b) of the Registration Act. The Madras High Court took that view in Venkataram v. Subba Rao, (1949) 49 Madras 738 which has been approved by the Supreme Court in Narayanappa v. Bhaskara Krishnappa, AIR 1966 SC 1300. The Supreme Court in Commissioner of Income-tax, West Bengal, Calcutta v. Juggilal Kamalapat, AIR 1967 SC 401 held that when partners relinquished their individual interest in moveable or immovable assets of partnership in favour of new partners by a deed of relinquishment it did not require registration as an instrument under Sec.17(1)(b) of the Registration Act. In Gangadhar Madhavrao Bidwal v. Hanmantrao Vyankatrao Mungale (1995) 3 SCC 205) there was an unregistered deed of dissolution of partnership which indicated that land was in joint ownership of both the partners. On facts it was held that property at the time of dissolution of partnership was partnership property and hence the deed of dissolution was not required to be registered and the recital in the document is admissible in evidence even in the absence of registration.

8. It is within the power of partners to bring their individual property, moveable or immovable into the partnership and convert it into the common stock either at the time of formation of the partnership or during the continuance of that partnership and for the said purpose it is not necessary that there must be a written instrument. What is relevant is the intention of partners which could be proved even by a course of conduct. If the partners intended that property which hitherto was individual property of the partners be brought into the partnership as its asset so that individual right of partners qua partners over the property is lost and it becomes shared rights of the partners and the property is treated as such, then such property becomes partnership property as understood in Sec.14 of the Act. Even if such conversion is made by a written instrument it does not require compulsory registration as an instrument under Sec.17(1)(b) of the Registration Act. When some of the partners relinquish their interest qua partners in moveable or immovable property of the partnership in favour of the remaining partners also, a written instrument registered or otherwise is not necessary, what is relevant being the intention of the partners and that the property is treated as such proved by some evidence including a course of conduct.

9. Could such conversion happen at the time one or more of the partners retire from the partnership? Lindley says (See Page 458 of “The Law of Partnership”, 14th Edn.) that conversion of joint property (of the firm) into separate property (of the partners) or vice-versa most frequently takes place when a firm and one of its partners carry on distinct trades; or when a change occurs in a firm either by retirement of some or one of its members or by introduction of a new partner. It is not the requirement of Sec.14 of the Act that to become property of the partnership it must have been brought into the common stock at the time of its formation. That could happen during the continuance of the partnership or when a change occurs in the partnership by introduction of new partners or by the retirement of some or one of its members. But as the expression “partnership property” indicates when individual property of the partner is brought into the partnership at the eve of retirement of one or some of the partners, all the partners (including those who retire and bring in the property) qua partners should have the shared interest, i.e., shedding the individual interest which the retiring partner who owned the property had till then, he should share common interest over that property with other partners, a right to share the profits of that property and to seek winding up of the partnership including sale of the said property and demand a share in the resultant asset. Relinquishment by the retiring partners in favour of the continuing partners to attract operation of law under Sec.14 of the Act and avoid necessity of registration as an instrument under Sec.17(1)(b) of the Registration Act should be of their right or interest in the asset of the partnership of which they have only a right to share the profits or ask for winding up of the partnership including sale of the property and ask for share in the resultant asset. If on the other hand one or more of the retiring partners convey their individual immovable property to the partnership or the continuing partners in their individual capacity, such conveyance cannot attract operation of law under Sec.14 of the Act; it will be a conveyance of immovable property which does not come under Sec.14 of the Act and would require registration depending on value of the property under Sec17(1) (b) of the Registration Act.

10. The above being the legal position next question is whether in this case the suit property which belonged to the respondent was converted as partnership property and the right of respondent qua partner was relinquished in favour of the late V.V.Josesph (plaintiff in O.S. No.120 of 1992) and Shri V.J.George (appellant No.1) who continued as partners of the firm as per Ext.B2, unregistered deed dated 08.09.1967. Shri S.V. Balakrishan Iyer, learned Senior Advocate appearing for the appellants would contend that Ext.B2 is a composite deed as per which respondent and two other partners retired from the partnership, simultaneously brought in their individual properties into the common stock of the partnership and relinquished their right qua partners in favour of the continuing partners. To decide that question a reference to the relevant clauses in Ext.B2 is necessary. In Ext.B2, the retiring partners including respondent are parties of the first part and continuing partners (the late V.V. Joseph, predecessor-in- interest of appellants and Shri V.J.George (appellant No.1) are parties of the second part. The deed states in clause (1) that parties of the first part thereby declared that they have retired from the partnership from the 8th day of September, 1967 and that the said partnership shall since then be continued by the parties of the second part including the late V.V. Joseph. Clause (2) states that in consideration of the sum of Rs.1,00,000/- paid to the parties of the first part (including respondent) and in consideration of Rs.2,00,000/- “agreed to be paid by the parties of the second part” to the parties of the first part in the proportion stated therein on or before the 30th day of June, 1969 (the date, 31st June stated in Ext.B2 is obviously a mistake) with interest at the rate of 9% per annum for which separate promissory notes (Ext.A1 is that promissory note what was later renewed – Ext.A2) are executed by the parties of the second part, parties of the first part confirmed having assigned to the parties of the second part their interest in the partnership property described in Annexure IV to Ext.B2. So far as Annexures I to III, individual immovable properties (which includes the suit property) of the retiring partners (parties of first part) including the respondent is concerned what is stated in Ext.B2 is that parties of the first part “agreed to execute the deed of conveyance in respect of their individual properties described more particularly in the schedule given in Annexures I to III to this deed at any time when called upon to do so but at the costs and expenses of the parties of the second part”. Clause (2) further states that “for obtaining such conveyances from the parties of the first part in respect of the said properties, no further amount shall be payable by the parties of the second part and that parties of the first part shall execute the said conveyance as and when called upon by the parties of the second part”. Clause (3) states that parties of the second part are put in possession of immovable properties of retiring partners (Annexures I to III of Ext.B2) who were entitled to “possess, enjoy, deal with or take income from the said properties mentioned in Annexures I to III in any manner the said parties of the second part may deem fit”. Clause (4) states that “to enable the parties of the second part to sell or otherwise deal with the properties referred to in Annexures I to III parties of the first part shall also execute Power of Attorney in favour of the parties of the second part if called for to do so by the parties of the second part”. Under clause (9) parties of the first part agreed that “parties of the second part shall be entitled on their own and without the junction of the parties of the first part to pledge, hypothecate, mortgage, charge or in any way encumber or alienate any of the properties of the firm or the immovable properties and/or the immovable property described in Annexures I to IV of this deed; for the purpose of raising money for any purpose whatsoever as desired by the parties of the second part. It is however made clear by way of abundant caution that if the parties of the second part required concurrence or authority of the parties of the first part for any of the purposes aforementioned parties of the first part shall join in such document or act necessary for the above purpose or give letters or execute deeds or other documents expressing their consent to the proposals of the parties of the second part for raising money provided that the partis of the first part shall not be bound to meet any obligation personally in respect of such transaction”.

11. Learned Senior Advocate for appellants would argue that though at the time a change occurred in the partnership by retirement of respondent and two others (parties of the first part in Ext.B2), their individual properties including the suit property were brought into the common stock of the partnership, and their interest in that property of the partnership was relinquished in favour of the parties of the second part. According to the learned Senior Advocate this is evident from the fact that payment of Rs.2,00,000/- to the retiring partners was made by demand promissory notes which created a chose in action and amounted to payment itself. Reliance is placed on clauses 2, 3 and 9 of Ext.B2. According to the learned Senior Advocate execution of deed of conveyance as referred to in clause (2) or Power of Attorney referred to in clause (4) of Ext.B2 was only optional and as may be desired by parties of the second part. Learned Senior Advocate argued that it is pursuant to the power conferred on parties of the second part that they created equitable mortgage over Annexures I to III properties in Ext.B2 including the suit property in favour of the Bank. In response learned Senior Advocate for respondent would contend that even if Ext.B2 is accepted as such, it would not show that Annexures I to III properties including the suit property were being brought into the common stock of the partnership whereby the only right parties of the first part had, was to claim share in the profits of the said properties or to seek winding up of the partnership including sale of the said properties and claim share in the resultant asset. On the other hand Ext.B2 is only an agreement to convey the said properties in favour of the parties of the second part. Concededly no deed of conveyance was executed in respect of the suit property and the sale consideration agreed to be paid was also was not paid and hence title remained with the respondent. According to the learned Senior Advocate it is accepting the said factual and legal position that the late V.V. Joseph though alternatively claimed protection of Sec.53A of the TP Act but failed to show that he was ready and willing to perform his part of the contract.

12. It is settled principle regarding interpretation of deeds that the question is not what the parties to the deed may have intended to do by entering into the deed but, what is the meaning of the words used in the deed. Courts are to understand the true intent of the deed by the words used in it. If the terms of the deed are ambiguous extrinsic evidence can be let in to prove the real intention. Exhibit A2 is the release deed executed by the parties of the first part including the respondent on 08.09.1967 in favour of parties of the second part including the late V.V. Joseph as per which their right over Annexure IV properties were assigned or relinquished in favour of parties of the second part including the said V.V. Joseph. Clause (2) of Ext.B2 relating to the assets of the partnership dealt with as per Ext.A2 states that parties of the first part “hereby confirm having assigned to the parties of the second part all that share and interest of the said parties of the first part” in the said properties thereby indicating that there was an outright assignment or relinquishment of right and interest of the parties of the first part in Annexure IV properties which were property of the partnership as per Ext.A2 and which they confirmed as per Ext.B2. But as regards Annexures I to III properties including the suit property which admittedly were individual properties of the retiring partners what is stated in Ext.B2 is that parties of the first part “agree to execute the deed of conveyance in respect of their individual properties. at any time when called upon to do so” at the cost and expense of the parties of the second part. There is a conscious distinction made so far as the properties of the firm referred to in Annexure IV and the individual properties of parties of the first part referred to in Annexures 1 to III are concerned in that in the former case parties of the first part assigned or relinquished their right over it as per Ext.A2 and confirmed the same as per Ext.B2 but in the case of their individual properties (Annexures I to III) they agreed to execute deed of conveyance as and when called upon to do so by the parties of the second part. This is further clear from the latter part of clause (2) of Ext.B2 which states that for the purpose of obtaining such deeds of conveyance executed by parties of the first part, no further amount shall be payable by parties of the second part. Thus parties contemplated execution of a deed of conveyance in respect of Annexures 1 to III properties including the suit property to convey title. It is true that Annexures I to III properties were put in possession of parties of the second part which is admitted by the respondent also and parties of the second part were permitted to possess, enjoy, take income or deal with the said properties. Clause (4) of Ext.B2 specifically requires parties of the first part when called upon by parties of the second part to execute Power of Attorney in their favour to enable them sell or otherwise deal with the said properties obviously because of title of the said properties remained with parties of the first part including the respondent. True as per clause (9) of Ext.B2 right was conferred on parties of the second part to sell, pledge, hypothecate, mortgage the said properties and if parties of the second part required the concurrence or authority of the parties of the first part for any such purpose, the latter were to join such document or act necessary for the said purpose or give letters or execute deeds as is found necessary. According to the appellants provision for execution of deed of conveyance was only as a matter of abundant caution and junction of parties of the first part was only optional as it was open to the parties of the second part to sell, pledge, hypothecate, mortgage, etc., the properties on their own as if it belonged to them. I am afraid, such an interpretation cannot be given to clause (9) of Ext.B2. That clause alone cannot be culled out of context but has to be read along with clauses 2 and 4 of Ext.B2 which required parties of the first part to execute deeds of conveyance as and when required and (in the meantime) execute Power of Attorney in favour of parties of the second part to enable them deal with the said properties including its sale. I must also bear in mind that Ext.B2 was executed on 08.09.1967 and time for payment of consideration of Rs.Two lakhs was till the end of June, 1969. Reading clauses (2), (4) and (9) together what could be discerned is that parties of the first part were to execute Power of Attorney in favour of the parties of the second part to enable them to sell or otherwise deal with the property and it was open to the parties of second part to enter into transactions including sale on the strength of the Power of Attorney before the deed of conveyance was executed and if for any reason junction of parties of the first part was required (before execution of the deed of conveyance) the latter shall join such document, give consent letter or execute the deeds (in favour of an assignee, in the case of an arranged by parties of the second part).

13. It is not disputed that properties referred to in Annexures 1 to III of Ext.B2 were subjected to an equitable mortgage in favour of the Bank which in turn filed O.S. No. 120 of 1972 against the partnership, parties of the first and second parts in Ext.B2 and others for realisation of money by sale of he said properties and obtained a decree. Exhibit A4 is the copy of plaint in that case. According to the appellants equitable mortgage over Annexures 1 to III was created by parties of the second part in Ext.B2. Respondent would contend that himself and other retiring partners (parties of the first part in Ext.B2) deposited title deeds of their respective properties. In Exhibit A4 what is pleaded by the Bank is that equitable mortgage was created by defendant Nos.2 to 6 therein (who are parties of the first and second parts in Ext.B2) on 16.10.1968. Thus as per Ext.A4, the parties of first part including the respondent also had joined in creating equitable mortgage over Annexures I to III properties referred to in Ext.B2. There is no contra evidence. On the contrary, it is interesting to see from paragraph 9 of the plaint in O.S. No.120 of 1992 (filed by the late V.V.Joseph) that what is stated is that “as can be seen from the terms in the retirement-cum-release deed the defendant joined the memorandum of deposit of title deeds only to show his formal concurrence and not by virtue of any rights”. This statement in paragraph 9 is consistent with the plea of the Bank in O.S. No.120 of 1972 (See Ext.A4) that equitable mortgage over the immovable properties including suit property referred to in Annexures 1 to III of Ext.B2 was created by the respondent as well. It is also relevant to note that nowhere in Ext.B2 it is stated that title deeds in respect of the properties in Annexures 1 to III were handed over to the parties of the second part. Exhibit A6 is the copy of affidavit filed by the respondent in O.S. No.120 of 1972 filed by the Bank. In paragraph 1 of Ext.A6 he claimed that he deposited title deed of the suit property with the Alappuzha branch of the Bank. Thus going by the evidence on record it is a case where deposit of title deed in respect of the suit property with the Bank was made by or, at any rate with the junction of the respondent which also indicate that title of the suit property remained with the respondent. Reading Ext.B2 and going through the evidence on record I am unable to accept the contention of learned Senior Advocate for the appellants that the suit property was brought into the common stock of the partnership at the time respondent retired from the partnership as per Ext.B2 and right and interest of respondent qua partner in the said property, i.e., a right to share profits of the said property and demand winding up of the partnership including sale of the suit property and claim share in the resulting asset was conveyed to the continuing partners. Exhibit B2 can only be taken as a deed whereby respondent retired from the partnership and in consideration, among other things, of payment of Rs.3,00,000/- (of which Rs.One lakh was paid and Rs.Two lakhs was to be paid by the last day of June, 1969 in the proportion stated in Ext.B2) agreed to convey his right in the suit property referred to in Annexures I to III in favour of the late V.V. Joseph and his son (appellant No.1). It is not disputed that respondent has not executed any deed of conveyance in favour of the late V.V. Joseph or anybody else.

14. Assuming that Ext.B2 amounts to a conveyance, next question is whether it required registration. To say that registration is not required, Sec.14 of the Act should apply. For Sec.14 to apply, property had to be brought into the common stock of partnership with retiring partners foregoing their individual right in the said property and agreeing to share profits of the said property along with the continuing partners qua partners. Here, while parties of the first part retired from the partnership they (as claimed by the appellants) conveyed their right in the property to the late V.V.Joseph and Shri V.J.George (appellant No.1), the continuing partners of the firm. I do not find any plea either in the plaint in O.S. No.120 of 1992 or in the written statement in O.S. No.282 of 1992 that the property was brought into the common stock of the partnership. On the other hand contention throughout is that property was conveyed to the late V.V.Joseph and Shri V.J.George. In paragraph 3 of plaint in O.S. No.120 of 1992 after referring to Ext.B2, retirement deed dated 08.09.1967 as a composite document executed in relation to the retirement of the parties of the first part from the partnership firm it is stated that retiring partners released all their right, title and interest over their personal properties respectively mentioned in Annexures 1 to III in Ext.B2 “in favour of the plaintiff and his son, V.J. George“. In paragraph 4 it is stated that respondent (and others) “relinquished, abandoned and released all his rights, title and interest over the schedule properties unto and in favour of the plaintiff and his son V.J.George”. In paragraph 10 it is pleaded alternatively that “in any event the plaintiff has perfected his title to the properties by principles of adverse possession and limitation the properties having been in their possession and enjoyment openly, continuously and uninterruptedly for over 12 years and more”. Similar contentions are raised in the written statement filed by the late V.V.Joseph and Shri V.J. George (appellant No.1) and others in O.S. No.282 of 1992. There, in paragraph 13 it is contended that Ext.B2 is a composite document as per which the parties of the first part (including respondent) retired from the partnership and “release by them in respect of the right, title and interest over the personal properties respectively mentioned as Annexures 1 to III in favour of these defendants”. It is further stated in the same paragraph that as per Ext.B2 “plaintiff and brothers V.V. Job and V.V.Antony relinquished, abandoned and released all their right, title and interest over the properties thereto in favour of these defendants. By virtue thereof these defendants had been in exclusive enjoyment and possession of the properties in their own rights as co-owners thereto”. Similar contentions are raised in paragraph 14 also. Thus going by the pleadings in the plaint in O.S. No.120 of 1992 and written statement of the late V.V.Joseph and Shri V.J.George (appellant No.1) in O.S. No.282 of 1992 it is not a case of the appellants contending that as per Ext.B2 right, title and interest of respondent in the suit property was brought into the common stock of the partnership as understood in Sec.14 of the Act. Instead, contention is that the alleged conveyance of suit property was in favour of the late V.V.Joseph and V.J.George (appellant No.1) personally and accordingly they are co-owners of the said property. The conveyance if any (as per Ext.B2), being in favour of Shri V.V.Joseph and Shri V.J.George (appellant No.1), Ext.B2 cannot affect the right, title and interest of the respondent over the suit property as that document required registration but has not been registered.

15. The substantial questions of law framed are answered in the above lines.

Resultantly, these appeals fail and are dismissed. But I direct the parties to suffer their respective costs.

Civil Miscellaneous Petition No.781 of 2001 shall stand dismissed.

The post George Vs. George appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5387 OF 2007
MANISHA TYAGI .….APPELLANT
VERSUS
DEEPAK KUMAR …RESPONDENT
J U D G M E N T

SURINDER SINGH NIJJAR, J.
1. In this appeal the wife has challenged the judgment of High Court of Punjab and Haryana in LPA No.1625/01 dated 25.8.2006 whereby the High Court set aside the judgment of the Trial Court and the Judgment of Ld. Single Judge and granted a decree of divorce to the husband.

2. Marriage between the parties was celebrated according to Hindu rites at New Delhi on 17.11.1991. For a short period after the marriage, the couple stayed at Meerut where the husband was posted as a Captain in the Indian Army. Mutual cohabitation of the parties seems to have come to an end on 30.12.1992. They have been living separately since 31.12.1992. They have a daughter who was born on 2.6.1993.

3. On 24.11.1993 the husband filed a petition under Section 13 of the Hindu Marriage Act being Matrimonial Case No.644 of 1993 for dissolution of the marriage. Later on the petition was amended and filed in the Court of District Judge of Gurgaon on 28.11.1995 pursuant to the order issued by this Court in a transfer petition.

4. The husband has mentioned numerous instances of cruelty in paragraph 7 of the divorce petition. He has described the wife as quarrelsome, rude and ill-mannered. He had gone to the extent of terming his wife to be schizophrenic, making his life a living hell. He goes on to narrate that all efforts at conciliation even by his parents did not yield any result. He then proceeds to state that his wife is misusing her position as a practising advocate. According to him she has been constantly threatening him as well as his family that since she and her two uncles are advocates they would make the lives of the husband and his family miserable. The husband then complains that the wife has been making baseless complaints to his superiors. This has affected his career prospects in the Army. He makes a special reference to a statutory complaint dated 10.12.1993 in which according to him the wife had made numerous false allegations about the behaviour of the husband and his family even prior to the marriage ceremony.

5. We may notice here the contents of the statutory complaint. She complained about the exorbitant demands made by the husband’s family for dowry. She complained that within days of the marriage the husband started behaving in a strange manner; throwing household articles and clothes all around in the room and also mimicking the sound of different animals and sometimes barking like a dog. She had also claimed that she had never seen a human being behaving that way even if very heavily drunk, as he was most of the times she remained in his company. She has stated that the husband and in-laws had willfully and cruelly treated her and had spared no effort to cause her mental harm and inflicted grave injuries. She also complains that there is danger to her life, limb and health. They had pressurised her to meet not only their unlawful demands of money but also for spurious reasons. She ends the complaint with the comment that she has a child to support. She requested that an enquiry be held into the conduct of the husband which is not only rude, indiscreet, disgraceful and unbecoming of an Army officer but he has committed the offences under the Penal Code.

6. The husband further complains that even during this short period of cohabitation the behaviour of the wife was erratic, inhuman and unbearable. In order to cause mental agony to the husband the wife would deliberately indulge in erratic sexual behaviour. She would intentionally interrupt the coitus. On many occasions she even refused to share the bed with him.

7. The husband then makes a grievance that the wife had made a complaint to the Women Cell, Nanakpura, New Delhi where notice was received by the husband for appearance on 28.1.1994. She had also registered FIR No.10 on 19.1.1994 with Police Station, Keshavpuram, Delhi under Section 406, 498-A, IPC. The police raided the flat of the parents of the husband at Noida on 22.1.1994 along with the wife. She even took away all her belongings including the Maruti car. The husband in fact goes on further to allege that she even took the ornaments belonging to the husband and his parents. It is further alleged that the husband and the parents had to approach the court for anticipatory bail. She then filed a petition for maintenance before the Family Court, Meerut. She also lodged an FIR on 18.8.1999 under Section 354/506/34. She made false allegations against his father, advocate and the son of the advocate. With these allegations the husband had gone to court seeking divorce.

8. The Trial Court also took notice of the counter allegations made by the wife. She claimed that the husband and his family had started treating her with cruelty when the unwarranted demands for dowry were not met by her parents. She also claimed that the husband is deliberately disrupting the marriage as he wants to get married to someone else. She however admitted that the couple had separated on 31.12.1992. She complains about the deliberate neglect by the husband of his matrimonial as well as parental duties towards the new born daughter. She denied all the allegations made by the husband with regard to her erratic behaviour. She dwells on the illegal demands made by the in-laws for cash, jeweler and electronic items. She states that the marriage was celebrated under shadow of extortion. She was harassed by the in-laws and rudely informed that they were expecting a sum of more than 30-lakh rupees to be spent in the marriage as her father was working abroad. On the very first day when she went to the matrimonial home she was informed by the mother-in-law that her son was destined to marry twice as per the horoscope. She reiterates the allegations about the erratic behaviour of the husband. She states that in his show of temper he threw household things at her. She was constantly beaten on one pretext or the other. Denying the allegations with regard to sexual misbehaviour she stated that in fact the respondent tried to have sexual intercourse during menstruation period or after conception. She had asked him to desist from acting in such an unnatural manner but to no effect. She further admitted having made the complaint but she denied that these are made as a counter blast to the divorce petition filed by the husband.

9. On the basis of the pleadings of the parties the Trial Court framed the following issues:
“1. Whether respondent has been exercising such cruelty towards the petitioner so as to entitle the petitioner to the dissolution of the marriage? OPP
2. Whether the petitioner has been illtreating the respondent and as such, cannot take benefit of his own cruel and tortuous acts, if so, to what effect? OPR
3. Whether the petitioner is bad as premature? OPP
4. Whether the petition is malafide? OPR
5. Relief.”

10. The Trial Court on evaluation of the entire evidence however held as follows:
“Although the circumstances mentioned above clearly reveal that it is a case of broken marriage, however, there is no ground given in Section 13 of the Hindu Marriage Act, where a decree of divorce can be founded on the proof of irretrievably broken marriage. In this regard, I may cite a recent judgment of our own Hon’ble High Court reported as Rupinder Kaur Vs. Gurjit Singh Sandhu (1997-3) P.L.R. 553. It is laid down in this decision that even if the marriage is assumed to have (illegible) for irretrievably, it is not ground to dissolve the marriage. However, the situation reached between the parties is of the doing of the petitioner and it is well cherished principle laid down in Section 11 of the Hindu Marriage Act that a party cannot be permitted to take benefit of his own wrongs. For the discussion made above and the conclusions reached thereon, I hold that the petitioner has been unsuccessful in proving the respondent to have treated him with cruelty of the nature as to entitle him to a decree of divorce. It is however, proved on the other side that the petitioner had harassed the respondent for getting his demand and the demands of his parents fulfilled. However, the respondent has prayed for no relief on that ground. Issue No.1 is, therefore, decided against the petitioner while Issue No.2 is decided in favour of the respondent.”

11. Aggrieved by the aforesaid findings the respondent filed F.A.O. No.16-M of 2000 in the Punjab and Haryana High Court. The Learned Single Judge independently examines the entire evidence and the material on the record. Upon evaluation of the entire evidence the Learned Single Judge observed that both the parties are at fault. According to the Learned Single Judge the wife had crossed “Lakshman Rekha”. Apart from what was stated by the Trial Court, the Learned Single Judge notices that the wife had not only made allegations about the unnatural demands of the husband for sexual intercourse when she was pregnant but she had also made an allegation that he had wanted to commit the act of sodomy with her which she resisted. The Learned Single Judge concludes that the evidence led by the husband with regard to cruelty of the wife is not such that he can be granted a decree of divorce under Section 13 of the Hindu Marriage Act. At the same time, adverting to the behaviour of wife the Learned Single Judge observed as follows:

“I have considered the contentions of the parties with reference to the documents and first of all I must say here that respondent had crossed “Lakshman Rekha”. I do not deny that a woman has no rights after the lawful marriage. She expects love and affection, financial and physical security, equal respect and lots more but at the same time, the wife must remain within the limits. She should not perform her acts in such a manner that it may bring incalculable miseries for the husband and his family members She should not go to hat extent that it may be difficult for her to return from that point.”

12. The final conclusion reached by the Learned Single Judge is as follows:
“I have made an independent assessment of the oral evidence and am of the opinion that both the parties are at fault. The respondent exceeded the limits of decency when she went to the extent of lodging a false FIR and when she tried to humiliate the appellant in the eye of his superiors by writing a very damaging letter Ex. PW2/1 without knowing its consequences.”

13. In view of the aforesaid conclusions the Learned Single Judge granted the alternative relief to the husband by passing a decree for judicial separation under Section 10 of the Hindu Marriage Act. This decree was passed with the hope that the parties would ponder upon the situation and may be able to re-unite for the welfare of the child. If, on the other hand, the parties do not reconcile within the statutory period of one year it will be open to either of them to seek a decree of divorce.

14. Aggrieved by the aforesaid judgment the wife went in appeal before the Division Bench in LPA No.1625/01. The Division Bench noticed the extensive pleadings as well as the evidence led by the parties. On a reevaluation of the evidence the Division Bench concluded that all efforts of reconciliation between parties have failed. They have been living separately since 31.12.1992. According to the Division Bench the marriage has irretrievably broken down. The Division Bench sums up the entire matrimonial scene of the parties in the following words:

“The allegations and counter allegations had flown thick and proper in this case. To an extent these did receive support by the evidence led by the respective parties. The learned Single Judge chose a middle-path by holding that both the parties were at fault and accordingly granted decree of judicial separation instead of divorce. To what effect and what difference it has made to the lives of parties can not really be made out. The parties are living separately since 31.12.1992. Though not revealed from the record but we can assume that efforts must have been made for reconciliation between the parties at the trial and at the first appellate stage. Both the parties continue to differ and have refused to patch up. As noticed earlier, we also failed in our efforts to bring this matrimonial dispute to some agreed solution. What is left of this marriage? Both the parties though educated but are still standing firm on their respective stands. They both seem to be totally unconcerned about their young child and have continued with their combatant attitude without any remorse. This marriage, if we may say, has irretrievably broken down. That of course cannot be a ground for granting divorce between this fighting couple. No wonder, the Hon’ble Supreme Court in a latest decision in Naveen Kohli vs. Neelu Kohli, 2006 (3) Scale 252 has made a recommendation to the executive to provide this as a legal ground for divorce. Till the law is amended, we will remain handicapped to act even in those cases where one finds that a marriage just cannot work and existence thereof is nothing but an agony for both the parties. We, as such, are required to decide if the allegations of cruelty made by the respondent were proved or not.”

15. While reappreciating evidence the Division Bench notices the averments made by the wife in paragraphs 13 and 31 of the Statutory Complaint dated 10.12.1993 wherein she had stated as follows:

“13. On 2.12.1991, my husband started behaving in a strange manner throwing the household articles and clothes all around in the room and also mimicking the sound different animals and some times barking like a dog. I was not only stunned but also shocked because I had never seen a human being behaving that way even if very heavily drunk as he was most of the time I remained in his company. I was not allowed to touch any thing which belong to him. When I told my mother-in-law, she warned me to ensure that I obeyed all orders given to me, either my husband or in laws.”

“31. My health started deteriorating. My mind was disturbed to the extreme. Now another form of torture, unnatural sex. He would thrust on me at odd hours. I was no longer a human being but a slave to his wild passions.”

16. It is also observed that the wife has not denied the aforesaid averments while giving her evidence. She had in fact further elaborated the allegation of sodomy made by her in the complaint. The conclusion recorded by the Division Bench is as follows:
“We have given our thoughtful consideration to the while issue. It cannot be disputed that the appellant had made the averments in paras 13 and 31 of the complaints, which have been reproduced above. She has also not denied the same, rather while giving her evidence, she had further elaborated the allegations of sodomy made by her in the complaint. Wife cannot deny that she had compared her husband to a barking dog that she also made allegations against him for having behaved in a strange manner. She had also referred to him as heavy drunkard. Even if we leave aside the other allegations as made by the husband, we think that describing husband as dog and mimicking as animals and making allegations of sodomy would be enough to say that these amounted to cruelty on her part towards her husband. It cannot be denied that the wife had lodged various complaints and criminal proceedings against the respondenthusband. FIR under sections 498-A and 406 IPC was got registered by the wife. Respondenthusband, however, earned acquittal in this case. Another complaint filed before the Police Station Civil Lines, Meerut ended in dropping of the proceedings. Yet in another FIR got registered under Sections 417, 419 and 420 IPC, the respondent-husband was discharged. The record also reveals that still another FIR was got registered under Sections 354 and 506 read with Section 34 IPC on 18.8.1999 against the fatherin- law, an Advocate and son of an Advocate by the appellant-wife. We think that this conduct would exceed all bounds of moderation. A daughter-in-law making an allegation against her old and infirm father-in-law for molesting her would certainly be an intolerable behaviour, which can be termed nothing but an act of immense cruelty for a son, who was none else than the husband of such complaint-wife. This FIR was quashed on 20.3.2002. Seeing the cumulative effect of all these allegations, we would not have any hesitation to hold that the allegations of cruelty made by the respondenthusband stand established.”

17. Since the allegation of cruelty made by the husband had been accepted, the Division Bench further observed as follows:
“We would, accordingly, hold that the finding of the learned Single Judge in grating partial relief and that of the trial Judge in declining the relief of divorce cannot be sustained. We would, accordingly, set aside both the judgments and hold that the cruelty alleged by the respondent husband stands proved. As a result, we will dismiss the appeal and modify the judgment of the learned Single Judge to hold that the decree of divorce prayed by the respondent-husband is granted.”
The aforesaid judgment has been challenged by the wife in the present appeal.

18. We have heard the counsel for the parties. Ms. Kamini Jaiswal, appearing for the appellant, submitted that order passed by the High Court could not have been passed in an appeal filed by the wife. The husband had not filed any appeal. Both the courts below had given concurrent findings that that the allegations of the husband about cruelty of the wife have not been proved. These findings were based on a thorough evaluation of the evidence by the Trial Court as well as the learned Single Judge of the High Court. The Division Bench reversed the findings without any recording any independent reasons. Learned Counsel made a reference to the observations of the Trial Court wherein it has been observed that averments made in paragraph 13 would not amount to calling her husband a dog. The District Judge had observed “to say that a person started barking like a dog and that that person is a dog are two different things. In Para 13 of exh. PW2/1, the respondent only speaks about unhuman behaviour of her husband and she cannot be taken as addressing her husband as dog in this paragraph”.

19. The Trial Court also observed that the allegations made in paragraph 31 of the Statutory Complaint about unnatural sex cannot be equated with sodomy. The Trial Court also came to the conclusion that it is a case of broken marriage. However, in the absence of a ground under Section 13 of the Hindu Marriage Act where a decree of divorce can be founded on the proof of irretrievable broken marriage, it would not be a ground to dissolve the marriage. It is also pointed out that these findings were not rejected by the Appellate Court. According to the learned counsel on this short ground the judgment of the Division Bench is liable to be set aside.

20. On the other hand, Mr. Rajender Kumar, appearing for the husband submitted that the High Court possibly could not have granted the decree on the basis of irretrievable break down of marriage. However, the High Court has granted the decree of divorce upon reappreciation of the evidence and recording an independent finding that the conduct of the wife amounts to cruelty which would entitle the husband to a decree of divorce. According to the learned counsel substantial justice has been done between the parties and the judgment does not call for any interference. It has also been pointed out by the learned counsel that, a petition was filed for divorce on the basis of the decree of judicial separation which had been granted by the learned Single Judge. However proceedings in the aforesaid case have been kept in abeyance due to the pendency of the appeals in the High Court and this Court. Learned counsel submitted that there is absolutely no room for reconciliation between the parties. Therefore, the judgment of the High Court need not be reversed at this stage.

21. We have considered the submissions made by the learned counsel. The Trial Court as well as the Appellate Court have both concluded that the behaviour of the husband as well as the wife falls short of the standard required to establish mental cruelty in terms of Section 13(1) (i-a).

22. At this stage we may notice the observations made by this Court in the case of Naveen Kohli vs. Neelu Kohli (2006) 4 SCC 558. In this case the Court examined the development and evolution of the concept of mental cruelty in matrimonial causes. In paragraph 35 it is observed as follows:

“35. The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to 1976 amendment in the Hindu Marriage Act, 1955 cruelly was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By the 1976 amendment, cruelty was made a ground for divorce and the words which have been omitted from Section 10 are “as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party”. Therefore, it is not necessary for a party claiming divorce to prove that the cruel treatment is of such a nature as to cause an apprehension–reasonable apprehension – that it will be harmful or injurious for him or her to live with the other party.”

23. The classic example of the definition of cruelty in the pre-1976 era is given in the well known decision of this Court in the case of N.G. Dastane vs. S. Dastane (1975) 2 SCC 326, wherein it is observed as follows:

“The enquiry has to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner as reasonable apprehension that it would be harmful or injurious for him to live with the respondent”.

24. This is no longer the required standard. Now it would be sufficient to show that the conduct of one of the spouses is so abnormal and below the accepted norm that the other spouse could not reasonably be expected to put up with it. The conduct is no longer required to be so atrociously abominable which would cause a reasonable apprehension that it would be harmful or injurious to continue the cohabitation with the other spouse. Therefore to establish cruelty it is not necessary that physical violence should be used. However continued ill-treatment cessation of marital intercourse, studied neglect, indifference of one spouse to the other may lead to an inference of cruelty. However in this case even with aforesaid standard both the Trial Court and the Appellate Court had accepted that the conduct of the wife did not amount to cruelty of such a nature to enable the husband to obtain a decree of divorce.

25. We may notice here the observations made by this Court in the case of Shobha Rani vs. Madhukar Reddi (1988) 1 SCC 105 wherein the concept of cruelty has been stated as under:

“The word “cruelty” has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i-a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. It if it mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot b e denied on the ground that there has been no deliberate or willful ill-treatment.”

26. In the case of V. Bhagat vs. D. Bhagat (1994) 1 SCC 337, this Court while examining the concept of mental cruelty observed as follows:
“16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

27. Taking into consideration the conduct of the parties over a period of time, the Trial Court as well as the Appellate Court concluded that the husband had failed to establish cruelty on the part of the wife which will be sufficient to grant a decree of divorce.

28. The Appellate Court further came to the conclusion that since both the parties made extremely serious allegations, it would be appropriate as the parties were not compelled to live together. The Appellate Court came to the conclusion that it would be more appropriate to give the couple some time to ponder over the issue especially keeping in view the welfare of their daughter. If in due course they manage to reconcile their differences the decree of judicial separation would be of no consequence. On the other hand, if the parties continued with their adamant attitudes it would be possible for either party to seek dissolution of the marriage on the basis of the aforesaid decree of judicial separation.

29. As noticed earlier the husband did not challenge the aforesaid decree of the Appellate Court, he was content to wait for one year and there after seeking decree of divorce. In fact upon the expiry of one year he has actually filed the necessary proceedings seeking decree of divorce in the Court of District Judge, Gurgaon on 9.5.2002. These proceedings are still pending.

30. On the other hand the wife had filed the Latest Patent Appeal challenging the grant of decree of judicial separation to the husband by the Appellate Court. We are of the opinion that the High Court erred in granting a decree of divorce to the husband. She had come in appeal before the Division Bench complaining that the Appellate Court had wrongly granted the decree of judicial separation even after concurring with the findings of the Trial Court that the husband had failed to establish cruelty by the wife. Therefore even if the appeal had been dismissed, the findings recorded by the Trial Court in her favour would have remained intact. The effect of the order passed by the Division Bench is as if an appeal of the husband against the decree of judicial separation has been allowed. Both the parties had failed to make out a case of divorce against each other. The husband had accepted these findings. Therefore he was quite content to wait for the statutory period to lapse before filing the petition for divorce, which he actually did on 9.5.2002. On the basis of the proven facts the Trial Court was more inclined to believe the wife, whereas the learned Single Judge of the High court found both the parties to be at fault. Hence the middle path of judicial separation had been accepted. Therefore, it was not a case where it was necessary for the Division Bench to correct any glaring and serious errors committed by the court below which had resulted in miscarriage of justice. In our opinion there was no compelling necessity, independently placed before the Division Bench to justify reversal, of the decree of judicial separation. In such circumstances it was wholly inappropriate for the Division of High Court to have granted a decree of divorce to the husband.

31. For the aforesaid reasons, we are unable to uphold the judgment and the decree of the Division Bench. Consequently, we allow the appeal. We set aside the Judgment and the Order passed by the Division Bench and restore the Order passed by the learned Single Judge in FAO No. 16-M of 2000.

32. There shall be no order as to costs.

………………………………J
( V.S. SIRPURKAR )
…………………………………J
( SURINDER SINGH NIJJAR )

NEW DELHI,
FEBRUARY 10, 2010.

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A.K. PATNAIK, J.

CRIMINAL APPEAL No. 854 of 2004

This is an appeal against the judgment dated 07.10.2003 of the High Court of Rajasthan, Jaipur Bench, in D.B. Criminal Appeal No.816 of 1998.

2. The facts very briefly are that on 05.05.1992 Santosh (the deceased) was married to the appellant and on 08.03.1993 she was found dead in her in-laws house. On the same day, a written report was lodged with the police at the Shivaji Park Police Station at Alwar, by the uncle of the appellant, Ganga Sahai Saini, saying that while the deceased was boiling the water she got engulfed in flames and died. On the same day, another written report was lodged with the police by the father of the deceased, Babu Lal, that the deceased used to be harassed and humiliated in connection with demand of dowry and on receiving the information that she has died in an electric current accident, he rushed to the spot and found the body of Santosh in charred condition. On the basis of such information given by Babu Lal, the police registered FIR No.53 of 1993 for the offences under Sections 498A and 304B of the Indian Penal Code (for short ‘IPC’). The investigation was carried out and charge-sheet was filed by the police in the Court of Additional Chief Judicial Magistrate No.2, Alwar, against the appellant, Jagdish (younger brother of the appellant), Smt. Gordhani (mother of the appellant), Khem Chand (sister’s husband of the appellant), Gyatri Devi (wife of Khem Chand) and Girdhari Lal (father of Khem Chand). The case was committed to the Sessions Court and tried by the Additional Sessions Judge No.2, Alwar, as Sessions Case No.32 of 1998. The Additional Sessions Judge framed charges under Section 147, 304B and 498A IPC against all the accused persons. At the trial, the prosecution examined 16 witnesses and exhibited 31 documents. After statement of the accused under Section 313 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), no defence witness was examined. The Additional Sessions Judge convicted the appellant, Jagdish and Gordhani under Sections 498A and 304B IPC and imposed the sentence of three years rigorous imprisonment and a fine of Rs.1,000/-, in default to suffer further three months’ simple imprisonment for the offence under Section 498A IPC and imposed the sentence of imprisonment for life and a fine of Rs.5,000/-, in default further six months’ simple imprisonment for the offence under Section 304B IPC. On appeal, the High Court acquitted Jagdish and Gordhani but confirmed the conviction of the appellant under Section 498A and 304B IPC.

3. Mr. Tara Chandra Sharma, learned counsel for the appellant, submitted that the appellant has already served out the sentence under Section 498A IPC and, therefore, his challenge in this appeal is confined to the conviction and sentence under Section 304B IPC. He submitted that the main ingredient of the offence under Section 304B IPC is that the deceased must have been subjected to cruelty or harassment in connection with any “demand for dowry” and in this case the prosecution has not established that the deceased was subjected to cruelty or harassment by the appellant in connection with any demand for dowry. In support of his submission, he relied on the decisions of this Court in Biswajit Halder alias Babu Halder and Others v. State of West Bengal [(2008)1 SCC 202] and Durga Prasad and Another v. The State of M.P. [2010(6) SCALE 18]. He referred to the evidence of PW-2 (father of the deceased), PW-4 (mother of the deceased) and PW-5 (brother of the deceased) to show that there was no demand for dowry made by the appellant and that the appellant only wanted Rs.10,000/- to start a shop and this request for a sum of Rs.10,000/- cannot be held to be a demand for dowry.

4. He further submitted that there were, in fact, material contradictions in the testimony of PW-2, PW-4 and PW-5 with regard to the demand for dowry and, therefore, their evidence cannot be relied upon to sustain the conviction of the appellant. He submitted that in any case the evidence of PW- 2, PW-4 and PW-5 on whatever was stated to them by the deceased regarding demand for dowry and harassment or cruelty were at best hearsay evidence and not admissible either under Section 60 of the Indian Evidence Act, 1872 or under Section 32 of the Indian Evidence Act, 1872. In support of his submission, he cited Rattan Singh v. State of H.P. [(1997) 4 SCC 161].

5. He finally submitted that the court while recording the statement of the appellant under Section 313 Cr.P.C. did not put any question to enable the appellant to explain any circumstances appearing in the evidence against him. He relied on Latu Mahto and Another v. State of Bihar (Now
Jharkhand) [(2008) 8 SCC 395] to contend that circumstances about which the accused was not asked to explain cannot be used against him. According to learned counsel Mr. Sharma, this is not a case where the prosecution has been able to establish the offence under Section 304B IPC against the appellant and hence the judgment of the High Court should be set aside.

6. Dr. Manish Singhvi, learned counsel appearing for the State of Rajasthan, in reply submitted that the facts of this case would show that the deceased did not die under normal circumstances. He referred to the post-mortem report (Ex.P-21) which indicated that the deceased suffered 100% burns. He submitted that Dr. Mahendra Kr. Gupta (PW-9), who performed the autopsy, has opined that the burns on the deceased were after strangulation and throttling inasmuch as there were fractures of larynx and trachea and the larynx was found congested. He submitted that the deceased got married on 05.05.1992 and died on 08.03.1993 within ten months of the marriage and there was sufficient evidence to show that she was subjected to cruelty and harassment by the appellant and other members of his family.

7. He submitted that the evidence of PW-2, PW-4 and PW-5 establishes that there was demand for dowry of a Scooter or Rs.25,000-/. He referred to the evidence of PW-4 and PW-5 to show that the appellant used to taunt the deceased saying that she has come from a hungry house and that the appellant had himself visited the house of PW-4 and demanded a sum of Rs.10,000/-. He vehemently submitted that this is a clear case of continuous harassment of the deceased in connection with demand of dowry not only by the appellant but also by his other family members. He cited Pawan Kumar and Others
v. State of Haryana [(1998) 3 SCC 309] to contend that such taunting and teasing of a bride for not bringing dowry amount to harassment or cruelty within the meaning of Section 304B IPC.

8. In reply to the submission of Mr. Sharma that statements made by the deceased before PW-2, PW-4 and PW-5 regarding harassment and demand of dowry were not admissible either under Section 60 or under Section 32 of the Evidence Act, he submitted that this Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] has held that Section 32 of the Indian Evidence Act is an exception to the rule of hearsay and makes admissible the statement of a person who dies, provided the statement related to the cause of death or exhibits circumstances leading to the death. He submitted that in the present case the statements made by the deceased to PW-2, PW-4 and PW-5 related to the cause of her death, namely, demand for dowry and therefore would be admissible under Section 32 of the Indian Evidence Act, even if the deceased while making the statement was not expecting the death. He submitted that in the present case the prosecution has firmly established that soon before her death the deceased has been subjected to cruelty or harassment by the appellant in connection with demand for dowry and therefore the Court has to presume under Section 113B of the Indian Evidence Act that the appellant has caused the dowry death and this presumption has not been rebutted by the appellant by leading any evidence.

9. Dr. Singhvi finally submitted that since there were concurrent findings of fact rendered by the trial court and the High Court that the deceased died due to asphyxia and was burnt after strangulation so as to make out a case of accident and the burns on the body of the deceased were found to be 100%, this was a case of ghastly murder and therefore not a fit case in which this Court should either set aside the conviction of the appellant or reduce the sentence imposed on him by the High Court.

10. We find that the evidence of PW-4 (mother of the deceased) is that after marriage, the deceased came several times and she also came about one month prior to her death and she used to complain about the demand of a Scooter and harassment by her mother-in-law Gordhani and that she had also told that the appellant used to taunt her that she has come from a hungry house and brought nothing and the last time when she came she stayed for two days and returned and one month thereafter she was murdered. Similar is the evidence of PW-5 (brother of the deceased) that whenever the deceased used to come home she used to complain that her in-laws have been teasing her and she had also stated that they demanded Scooter or Rs.25,000/- for a shop and that one month prior to her death she came home and complained that her mother-in-law and all other in-laws used to torture her and taunt her that she did not bring anything and that the appellant also used to tease her. It is thus clear from the evidence of PW-4, as corroborated by the evidence of PW-5, that the deceased has made statements before them that her in-laws as well as the appellant have been demanding a Scooter or Rs.25,000/- for a shop and have been taunting and teasing her for not meeting the demand of dowry within a couple of months before her death. Such evidence of PW-4 and PW-5 with regard to the statements made by the deceased is no doubt hearsay but is admissible under clause (1) of Section 32 of the Indian Evidence Act.

11. Clause (1) of Section 32 of the Indian Evidence Act provides that statements made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, are themselves relevant facts. In the present case, the cause of death of the deceased was a question to be decided and the statements made by the deceased before PW-4 and PW-5 that the appellant used to taunt the deceased in connection with demand of a Scooter or Rs.25,000/- within a couple of months before the death of the deceased are statements as to “the circumstances of the transaction which resulted in her death” within the meaning of Section 32(1) of the Indian Evidence Act.

12. In Pakala Narayana Swami v. Emperor [AIR 1939 PC 47] Lord Atkin held that circumstances of the transaction which resulted in the death of the declarant will be admissible if such circumstances have some proximate relation to the actual occurrence. The test laid down by Lord Atkin has been quoted in the judgment of Fazal Ali, J. in Sharad Birdhichand Sarda v. State of Maharashtra (supra) and His Lordship has held that Section 32 of the Indian Evidence Act is an exception to the rule of hearsay evidence and in view of the peculiar conditions in the Indian Society has widen the sphere to avoid injustice. His Lordship has held that where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statements would clearly fall within the four corners of Section 32 and, therefore, admissible and the distance of time alone in such cases would not make the statements irrelevant. The difference in the English Law and the Indian Law has been reiterated in Rattan Singh v. State of H. P. (supra) and it has been held therein that even if the deceased was nowhere near expectation of death, still her statement would become admissible under Section 32 (1) of the Indian Evidence Act, though not as a dying declaration as such, provided it satisfies one of the two conditions set forth in this sub-section. The argument of Mr. Sharma, therefore, that the evidence of PW-4 and PW-5 regarding the statements made by the deceased before them are hearsay and are not admissible is misconceived.

13. The prosecution, therefore, has been able to show that soon before her death the deceased has been subjected by the appellant to taunt in connection with demand for dowry. This Court has held in Pawan Kumar and Others v. State of
Haryana (supra) that a girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride and such acts of taunting by the husband would constitute cruelty both within the meaning of Section 498A and Section 304B IPC.

14. Once it is established by the prosecution that soon before her death the deceased was subjected by the appellant to harassment or cruelty in connection with demand for dowry, the Court has to presume that the appellant has committed the offence under Section 304B IPC. This will be clear from Section 113B of the Indian Evidence Act which states that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. The prosecution in this case had led sufficient evidence before the Court to raise a presumption that the appellant had caused the dowry death of the deceased and it was, therefore, for the appellant to rebut this presumption.

15. Mr. Sharma has, however, argued that the appellant was not given such opportunities to personally explain any circumstances appearing in the evidence against him. But we find from the statement of the appellant recorded under Section 313 Cr.P.C. that the evidence of PW-4 that the deceased came to her house many times after marriage and lastly came to her house prior to her death saying that Girdhari and Khem Chand demanded a Scooter and that the appellant said that she came from a poor family, was brought to the notice of the appellant but the appellant simply denied the same. The appellant has also chosen not to examine any defence witness to rebut the presumption of dowry death against him under Section 113B of the Indian Evidence Act. The trial court and the High Court were thus right in holding that the appellant was guilty of the offence under Section 304B IPC.

16. For the offence under Section 304B IPC, the trial court has imposed the maximum punishment of life imprisonment saying that the appellant has sacrificed the newly-wed bride with cruelty and harshness to satisfy his lust of dowry illegally and hence he does not deserve any mercy and considering the nature of the offence committed by him and his conduct, he deserves the maximum punishment of life imprisonment. The High Court has only sustained the conviction and punishment of life imprisonment imposed on the appellant under Section 304B IPC. Dr. Singhvi, however, suggested that this was a case of strangulation of a bride before she was burnt and for this reason, the High Court sustained the maximum punishment of life imprisonment.

17. The fact remains that the appellant was not charged for the offence of murder under Section 302 IPC presumably because during investigation no materials were available to establish the offence under Section 302 IPC against the appellant. In Smt. Shanti and Another v. State of Haryana
[(1991) 1 SCC 371] cited by Mr. Sharma, this Court has held that where there is no evidence as to the actual part played by the accused, a minimum sentence of seven years would serve the ends of justice. In the present case, since there is no evidence as to the actual role played by the appellant in the death of the deceased, a punishment of ten years’ imprisonment would suffice in the ends of justice.

18. In the result, the appeal is partly allowed and the sentence of life imprisonment imposed on the appellant under Section 304B IPC is reduced to ten years and the impugned judgment of the High Court is modified accordingly. In case the appellant has undergone the period of ten years imprisonment, he shall be released forthwith unless he is wanted in any other case.

CRIMINAL APPEAL No. 1411 of 2010
(Arising out of SLP (Crl.) No. 4389 of 2004)

Leave granted.

2. This is an appeal filed by the State of Rajasthan against the judgment dated 07.10.2003 of the High Court of Rajasthan, Jaipur Bench, in D.B. Criminal Appeal No.816 of 1998 acquitting Jagdish and Gordhani of the charges under Sections 498A and 304B IPC.

3. The only contention raised by Dr. Manish Singhvi, learned counsel for the State of Rajasthan, is that although the evidence on record against Amar Singh, Jagdish and Gordhani was the same, the High Court took the view that Jagdish and Gordhani have been implicated because they were members of Amar Singh’s family and that the charges against them are not proved beyond reasonable doubt. He vehemently submitted that no reasons whatsoever have been indicated by the High Court in the impugned judgment to show how the cases of Jagdish and Gordhani were different from that of Amar Singh. According to him, the High Court should have sustained the order of the trial court convicting Jagdish and Gordhani.

4. We are unable to accept this submission of Dr. Singhvi. The evidence of PW-2, PW-4 and PW-5 shows that Jagdish and Gordhani played a role in the demand of dowry of a Scooter or Rs.25,000/- for Amar Singh, but demand of dowry by itself is not an offence under Section 498A or Section 304B IPC. What is punishable under Section 498A or Section 304B IPC is the act of cruelty or harassment by the husband or the relative of the husband on the woman. It will be also clear from Section 113B of the Indian Evidence Act that only when it is shown that soon before her death a woman has been subjected by any person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death within the meaning of Section 304B IPC. The act of subjecting a woman to cruelty or harassment for, or in connection with, any demand for dowry by the accused, therefore, must be established by the prosecution for the Court to presume that the accused has caused the dowry death.

5. PW-2 (father of the deceased) has not stated in his evidence before the Court that Jagdish and Gordhani, in any way, subjected the deceased to any harassment or cruelty. PW-4 (mother of the deceased), however, has stated that the deceased used to complain about the demand of a Scooter by Girdhari and harassment by her mother-in-law Gordhani, but PW-4 has not stated what was the exact act of Gordhani by which the deceased felt harassed. The evidence of PW-5 (brother of the deceased) is that whenever the deceased used to come home she used to complain that her in-laws have been teasing her and they were demanding a Scooter or Rs.25,000/- for a shop and that when the deceased came home one month prior to her death, she complained that her mother-in-law and all other in-laws used to torture her and taunt her that she did not bring anything, but PW-5 has not described the exact conduct of the mother-in-law and other in- laws on account of which the deceased felt tortured and taunted. On the other hand, the evidence of PW-4 is clear that Amar Singh used to taunt her that she has come from a hungry house. Thus, there was evidence in the case of Amar Singh about his exact conduct which caused harassment to the deceased but there was no such evidence in the case of Jagdish and Gordhani. A prosecution witness who merely uses the word “harassed” or “tortured” and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Section 498A and 304B IPC. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and Gordhani appear to have been implicated because they were members of Amar Singh’s family.

6. In Kans Raj v. State of Punjab and Others [(2000) 5 SCC 207], this Court cautioned that in cases where accusations of dowry deaths are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt and by mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. In the aforesaid case, this Court further observed that a tendency has developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits.

7. We, therefore, do not find any substance in the contention of Dr. Singhvi that the High Court should have sustained the conviction of Jagdish and Gordhani and we accordingly dismiss this appeal.

……………………..J. (R. M. Lodha)
……………………..J. (A. K. Patnaik)

New Delhi,
August 03, 2010.

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1512 OF 2010
(Arising out of SLP (Crl.) No.4684 of 2009)
Preeti Gupta & Another …Appellants
Versus
State of Jharkhand & Another ….Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal has been filed by Preeti Gupta the married sister-in-law and a permanent resident of Navasari, Surat, Gujarat with her husband and Gaurav Poddar, a permanent resident of Goregaon, Maharashtra, who is the unmarried brother-in-law of the complainant, Manisha Poddar, against the impugned judgment of the High Court of Jharkhand at Ranchi, Jharkhand dated 27.4.2009 passed in Criminal Miscellaneous Petition Nos.304 of 2009.

3. Brief facts which are necessary to dispose of this appeal are recapitulated as under:
The Complainant Manisha was married to Kamal Poddar at Kanpur on 10.12.2006. Immediately after the marriage, the complainant who is respondent no.2 in this appeal left for Mumbai along with her husband Kamal Poddar who was working with the Tata Consultancy Services (for short “TCS”) and was permanently residing at Mumbai. The complainant also joined the TCS at Mumbai on 23.12.2006. Respondent no.2 visited Ranchi to participate in “Gangaur” festival (an important Hindu festival widely celebrated in Northern India) on 16.3.2007. After staying there for a week, she returned to Mumbai on 24.03.2007.

4. Respondent no.2, Manisha Poddar filed a complaint on 08.07.2007 before the Chief Judicial Magistrate, Ranchi under sections 498-A, 406, 341, 323 and 120-B of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act against all immediate relations of her husband, namely, Pyarelal Poddar (father-in-law), Kamal Poddar (husband), Sushila Devi (mother-in-law), Gaurav Poddar (unmarried brother-in-law) and Preeti Gupta @ Preeti Agrawal (married sister-in-law). The complaint was transferred to the court of the Judicial Magistrate, Ranchi. Statements of Respondent no.2 and other witnesses were recorded and on 10.10.2008 the Judicial Magistrate took cognizance and passed the summoning order of the appellants. The appellants are aggrieved by the said summoning order.

5. In the criminal complaint, it was alleged that a luxury car was demanded by all the accused named in the complaint. It was also alleged that respondent no.2 was physically assaulted at Mumbai. According to the said allegations of the complainant, it appears that the alleged incidents had taken place either at Kanpur or Mumbai. According to the averments of the complaint, except for the demand of the luxury car no incident of harassment took place at Ranchi.

6. According to the appellants, there was no specific allegation against both the appellants in the complaint. Appellant no.1 had been permanently residing with her husband at Navasari, Surat (Gujarat) for the last more than seven years. She had never visited Mumbai during the year 2007 and never stayed with respondent no.2 or her husband. Similarly, appellant no.2, unmarried brother-in-law of the complainant has also been permanently residing at Goregaon, Maharashtra.

7. It was asserted that there is no specific allegation in the entire complaint against both the appellants. The statements of prosecution witnesses PW1 to PW4 were also recorded along with the statement of the complainant. None of the prosecution witnesses had stated anything against the appellants. These appellants had very clearly stated in this appeal that they had never visited Ranchi. The appellants also stated that they had never interfered with the internal affairs of the complainant and her husband. According to them, there was no question of any interference because the appellants had been living in different cities for a number of years.

8. It was clearly alleged by the appellants that they had been falsely implicated in this case. It was further stated that the complaint against the appellants was totally without any basis or foundation. The appellants also asserted that even if all the allegations incorporated in the complaint were taken to be true, even then no offence could be made out against them.

9. The appellants had submitted that the High Court ought to have quashed this complaint as far as both the appellants are concerned because there were no specific allegations against the appellants and they ought not have been summoned. In the impugned judgment, while declining to exercise its inherent powers, the High Court observed as under:
“In this context, I may again reiterate that the acts relating to demand or subjecting to cruelty, as per the complaint petition, have been committed at the place where the complainant was living with her husband. However, the complainant in her statement made under solemn affirmation has stated that when she came to Ranchi on the occasion of Holi, all the accused persons came and passed sarcastic remarks which in absence of actual wordings, according to the learned counsel appearing for the petitioner could never be presumed to be an act constituting offence under section 498A of the Indian Penal Code.”

10. In this appeal, both the appellants specifically asserted that they had never visited Ranchi, therefore, the allegations that they made any sarcastic remarks to the complainant had no basis or foundation as far as the appellants are concerned.

11. The complainant could not dispute that appellant no.1 was a permanent resident living with her husband at Navasari, Surat, Gujarat for the last more than seven years and the appellant no.2 was permanent resident of Goregaon, Maharashtra. They had never spent any time with respondent no.2.

12. According to the appellants, they are not the residents of Ranchi and if they are compelled to attend the Ranchi Court repeatedly then that would lead to insurmountable harassment and inconvenience to the appellants as well as to the complainant.

13. The complaint in this case under section 498-A IPC has led to several other cases. It is mentioned that a divorce petition has been filed by the husband of respondent no.2. Both respondent no.2 and her husband are highly qualified and are working with reputed organization like Tata Consultancy Service. If because of temperamental incompatibility they cannot live with each other then it is proper that they should jointly get a decree of divorce by mutual consent. Both respondent no.2 and her husband are in such age group that if proper efforts are made, their resettlement may not be impossible.

14. The main question which falls for consideration in this case is whether the High Court was justified in not exercising its inherent powers under section 482 of the Code of Criminal Procedure in the facts and circumstances of this case?

15. This court in a number of cases has laid down the scope and ambit of courts’ powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.

16. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved.

17. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

18. This court had occasion to examine the legal position in a large number of cases. In R.P. Kapur v. State of Punjab AIR 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

19. This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.

20. In Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551, a three-Judge Bench of this court held as under:-
“…..In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible.”

21. This court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:
“7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

22. In State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure (for short, Cr.P.C.) under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

23. In G. Sagar Suri & Another v. State of UP & Others (2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.

24. This court in Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-
“It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

25. A three-Judge Bench (of which one of us, Bhandari, J. was the author of the judgment) of this Court in Inder Mohan Goswami and Another v. State of Uttaranchal & Others (2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:-
“Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.”

26. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.

27. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under:-
“498-A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.—For the purposes of this section, ‘cruelty’ means:-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

30. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of the suffering of ignominy. Unfortunately, a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.

36. When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed.

…………………………J.
(Dalveer Bhandari)
…………………………J.
(K.S. Radhakrishnan)

New Delhi;
August 13, 2010

The post Preeti Gupta & Anr vs State of Jharkhand & Anr appeared first on B&B Associates LLP.

+ LPA No.220 of 2002
CENTRE FOR POLICY RESEARCH …APPELLANT
Through: Mr. R.K.P. Shankardas, Sr. Advocate with Mr. P. Nagesh & Mr. Anand Mishra, Advocates.
Versus
BRAHMA CHELLANEY & ORS. …RESPONDENTS
Through: Mr. Akhil Sibal, Mr. Salim Inamdar, Ms. Aeshna Singh & Ms. Mihira Sood, Advs. for Respondent No.1.

+ LPA No.313 of 2002
V.A. PAI PANANDIKER …APPELLANT
Through: Mr. Amarjit Singh Bedi, Advocate.
Versus
BRAHMA CHELLANEY & ORS. …RESPONDENTS
Through: Mr. Akhil Sibal, Mr. Salim Inamdar, Ms. Aeshna Singh & Ms. Mihira Sood, Advs. for Respondent No.1.

CORAM:
HON’BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE MOOL CHAND GARG

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes

SANJAY KISHAN KAUL, J.
1. Persons of eminence in their field are also not above personal prejudices and petty squabbles. The present litigation is a consequence of such an approach.

2. The Centre for Policy Research (for short „Centre‟), appellant herein, was set up as a Society registered under the Societies Registration Act, 1860 with the objective of planning, promoting and providing for education and training in policy planning and management areas. The Memorandum of Association inter alia provides for holding seminars and conferences, conducting research, promoting education and development of personnel with the objective of maximization of the national resources. The Memorandum is widely worded and the Society was set up with the blessings of late Shri T.A. Pai, then a Union Minister with eminent people involved in it. Dr. V.A. Pai Panandiker, the appellant in LPA No.313/2002 was a Member Secretary. Dr. Brahma Chellaney, respondent No.1 also came to be associated with this organization, who is also one of the eminent persons of his field. The Centre was granted lease of land by the Government of India at institutional rates to construct its campus building in 1978-79 after it was originally set up in 1972 and the new campus started functioning from March, 1980. Respondent No.1 was appointed as a Research Professor on 23.6.1993 and a fresh letter of appointment was issued on 1.4.2000 increasing the remuneration with retrospective effect. The services of respondent No.1 were, however, terminated on 16.8.2000 giving three (3) months‟ salary in lieu of such termination. Aggrieved by this action, respondent No.1 filed WP (C) No.5928/2000 in this Court along with an interlocutory application praying for interim stay. The learned single Judge in terms of order dated 15.11.2000 granted stay of termination. In the mean time, Dr. V.A. Pai Panandiker resigned on 2.9.2000 though the decision on that resignation was deferred by the Governing Body of the Centre. The Union of India preferred an appeal against the interlocutory order but the same was dismissed as withdrawn in view of the writ petition, which was pending. The writ petition came to be decided by the learned single Judge of this Court on 18.1.2002. The writ of respondent No.1 was allowed with costs of Rs.10,000.00 against Dr. V.A. Pai Panandiker.

3. The Centre preferred a Letters Patent Appeal which is before us and Dr. V.A. Pai Panandiker also filed an appeal on similar grounds, apart from raising the issue of imposition of costs personally on him. Along with the appeal an application for interim stay was also filed but the same was dismissed as not pressed.

4. The Centre decided to accept the decision of the learned single Judge insofar as the quashing of the termination of services of respondent No.1 is concerned but constituted an Inquiry Committee to look into the conduct of respondent No.1. On the basis of the recommendations of the Inquiry Committee action was sought to be taken against respondent No.1 which was challenged by respondent No.1 in WP (C) No.4542/2002. The said writ is still pending and interim orders in favour of respondent No.1 were granted.

5. The result of all this is that the impugned action of termination against respondent No.1 which resulted in the orders of the learned single Judge which is now sought to be impugned in the present appeals does not stand and has been accepted by the appellant Centre. The appellant Centre is, however, aggrieved by certain conclusions drawn by the learned single Judge in respect of the nature of entity which the Centre is and that is the reason learned counsel for the appellant refused to give up the appeal stating that though the original cause of action may have been extinguished, the appellant Centre has a right to agitate the appeal on the question of law decided by the impugned judgement. We may notice that an endeavour was made to work out an amicable solution but the same proved to be futile.

6. In the impugned judgement the learned single Judge has made certain observations about the Centre being a „state‟ within the meaning of the expression “other authority” under Article 12 of the Constitution of India which raises certain doubts. Learned counsel for respondent No.1 fairly stated, and it was recorded in the order dated 27.8.2008 read with the order dated 18.11.2008 that he was not pressing that issue or the claim that the Centre is an authority covered within the ambit of Article 12 of the Constitution of India and could not support the observations in the impugned judgement in that behalf. It was, thus, agreed that to that extent the observations in the impugned judgement are unsustainable and are accordingly set aside.

7. However, the question which was sought to be agitated, and over which elaborate arguments have been addressed by learned counsels for the parties is the amenability of the Centre to the writ jurisdiction of this Court under Article 226 of the Constitution of India under the category of “other authority”.

8. The surprising part is that this matter has been sought to be agitated despite the factual matrix not existing and in that sense a legal opinion is being invited in a vacuum. This is the direct result of the insistence of the learned counsel for the appellant that this question of law vis-a-vis the Centre needs to be adjudicated in its favour while on the other hand, learned counsel for respondent No.1 canvassed that the observations in the impugned judgement in that behalf are liable to stand. The judgements cited by learned counsels for the parties are more or less the same but it is the conclusion sought to be derived in the factual matrix of the Constitution of the Centre and its upkeep over which there is divergence.

9. Learned counsel for the appellant submitted that the issue is no more res integra in view of the observations of the Supreme Court in Binny Limited & Anr. Vs. V. Sadasivan & Ors. (2005) 6 SCC 657 as a triple test has been laid down for invocation of remedy under Article 226 of the Constitution of India:
a. The private body is discharging a public function.
b. The decision sought to be corrected or enforced must be in discharge of a public function.
c. The public duty imposed is not of a discretionary character. It has also been observed that the scope of mandamus is determined by the nature of duties to be enforced rather than the identity of the authority against whom it is sought.

10. Learned counsel submitted that the aforesaid legal principle has emerged over a period of time and there are even earlier judgements which, in fact, adopted the same legal principle. In G. Bassi Reddy Vs. International Crops Research Institute & Anr. (2003) 4 SCC 225, it was observed that the public function or public duty should be similar to or closely related to those performable by the state in its sovereign capacity and thus it was observed that the primary activity of ICRI is to conduct research and training programme in the sphere of agriculture purely on a voluntary basis and such a service voluntary undertaken could not be said to be a public duty. In Federal Bank Limited Vs. Sagar Thomas & Ors. (2003) 10 SCC 733, a writ under Article 226 of the Constitution of India was held to be maintainable against any person or authority performing public duty, owing positive obligation to the effected party. Thus, private companies carrying on business or commercial activity or banking in conformity with the Reserve Bank of India banking policy was held not sufficient to bring them within the ambit of discharge of any public function or public duty.

11. Learned counsel also emphasized that the learned single Judge has been unnecessarily influenced by the factum of land being made available by the Government of India to the Centre as a criteria for bringing it within the domain of Article 226 of the Constitution of India even though in the Division Bench of this Court in Air Vice Marshal J.S. Kumar Vs. Governing Council of Air Force Sports Complex & Anr. 126 (2006) DLT 330 (DB) it was observed that merely because the Government had provided some land to the AFSC, it would not make the AFSC a state under Article 12 of the Constitution of India.

12. A reference was also made to Rahul Mehra & Anr. Vs. Union of India 114 (2004) DLT 322 (DB) in the context of the status of the Board of Control for Cricket in India. It was held that while BCCI may be amenable to writ jurisdiction but every action of the BCCI would not be subject to judicial review but only such of the actions which fall within the ambit of public law. A body, public or private, could not be categorized as amenable or not amenable to writ jurisdiction and their function test was the correct one to test maintainability.

13. Learned senior counsel canvassed before us that in the impugned judgement the Centre has not been held as comparable to a regular educational institution to invite the ratio of Unni Krishnan J.P. & Ors. Vs. State of Andhra Pradesh & Ors. (1993) 1 SCC 645, but the factum of land being allotted at concessional rates was deemed to be a factor to prevent the Centre from claiming immunity from judicial review under Article 226 of the Constitution of India.

14. We may observe at this stage insofar as the factual dispute is concerned, the learned single Judge opined that since the appointment of respondent No.1 was made by the Governing Body, it was only a decision of the Governing Body which could terminate his services. It was found that there was lack of specific authorization on delegation of power to Dr. V.A. Pai Panandiker to take the decision of termination of services of respondent No.1.

15. Learned counsel also sought to specifically deal with the aspect of educational institutions since the stand of respondent No.1 was that the Centre was intrinsically involved in the aspect of education and was enrolling students and granting certificates in respect of the same. It was submitted that the word “Education” should be understood in the sense of systematic instruction, schooling or training given to young in preparation for the work of life and connotes the whole course of scholastic instruction which a person has received as observed in The Sole Trustee, Lok Shikshana Trust Vs. CIT, Mysore (1976) 1 SCC 254. Similarly in T.M.A. Pai Foundation Vs. State of Karnataka (2002) 8 SCC 481, it was observed in para 287 as under:
“287. Education plays a cardinal role in transforming a society into a civilised nation. It accelerates the progress of the country in every sphere of national activity. No section of the citizens can be ignored or left behind because it would hamper the progress of the country as a whole. It is the duty of the State to do all it could, to educate every section of citizens who need a helping hand in marching ahead along with others.”

16. In S. Azeez Basha Vs. Union of India AIR (1968) SC 662 the nature of educational institutions was dealt with as under:
“21. Before we do so we should like to say that the words “educational institutions” are of very wide import and would include a university also. This was not disputed on behalf of the Union of India and therefore it may be accepted that a religious minority had the right to establish a university under Article 30(1). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a university and it was therefore open to a private individual or body to establish a university. There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions. (See St. David’s College, Lampeter v. Ministry of Education 3). Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it could be called a university. But though such a university might be granting degrees it did not follow that the Government of the country was bound to recognise those degrees. As a matter of fact as the law stood up to the time the Constitution time into force, the Government was not bound to recognise degrees of universities established by private individuals or bodies and generally speaking the Government only recognised degrees universities established by it by law. No private individual or body could before 1950 insist that the degrees of any university established by him or it must be recognised by Government. Such recognition depended upon the will of government generally expressed through statute. The importance of the recognition of Government in matters of this kind cannot be minimised. This position continued even after the Constitution came into force. It is only in 1956 that by sub-section (1) of Section 22 of the University Grants Commission Act, (3 of 1956) it was laid down that “the right to conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees”. Sub-section (2) thereof further provided that “save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself as entitled to confer or grant any degree”. Section 23 further prohibited the use of the word “university” by an educational institution unless it is established by law. It was only thereafter that no private individual or body could grant a degree in India. Therefore it was possible for the Muslim minority to establish a university before the Constitution came into force, though the degrees conferred by such a university were not bound to be recognised by Government.”

17. Learned counsel also referred to the definitions of “Research” since the Centre is primarily engaged in research works. The following three definitions were referred to for the said purpose:

“From New Shorter Oxford Dictionary 1993
“1. …. 2. A search or investigation undertaken to discover facts or reach new conclusions by a critical study of a subject or by a course of scientific inquiry. 3. Systematic investigation into and study of materials, sources, etc., to establish facts, collate information, etc.; formal postgraduate study or investigation; surveying of opinions or background information relevant to a project etc.”

From The World Bank Dictionary
“1. Hunting for facts or truth about a subject; inquiry; investigation: The researches of men of science have done much to lessen disease. SYN: study. 2. Organized scientific investigation to solve problems, test hypothesis, or develop or invent new products; atomic research, cancer research.”

From Wikipedia, the Free Encyclopedia on Internet
“Research is defined as human activity based on intellectual application in the investigation of matter. The primary aim for applied research is discovering, interpreting, and the development of methods and systems for the advancement of human knowledge on a wide variety of scientific matters of our world and the universe. Research can use the scientific method, but need not do so.”

18. Insofar as the factual matrix is concerned learned counsel emphasized that the Centre is a registered Society which originally worked from a rented premises till it was made available a lease of land by the Government of India on which the Centre constructed the building. The plea advanced was that the Government had no role in its founding nor say either in the constitution of the Governing Body or election of its new members. There was no mention of Government control in its Memorandum and control of all operations vested with the Governing Body. The appointment of staff and fellows was by the Governing Body in its sole authority. The corpus is stated to be raised from variety of sources including collaborations, foreign foundations, multilateral agencies, etc. and the proportion of receipts for the Government projects is very small as compared to total receipts.

19. The grants received from ICSSR were stated to be not sufficient to cover the salaries of core faculty and staff and thus salaries were paid from the pool of resources.

20. An emphasis was laid on the fact that the Society has about 14 honorary faculty members with 21 paid faculty members and 19 supportive staff whose pay structure could be fixed by the Centre. The Centre voluntary adopted certain pay scales for some of the faculties and staff members in terms of scales of UGC.

21. Learned counsel for respondent No.1, on the other hand, emphasized certain important factual aspects which according to him should weigh in making the Centre amenable to writ jurisdiction under Article 226 of the Constitution of India especially in respect of matters of employment of faculty. These are:
i. Notification dated 27.4.1977 of Ministry of Education & Social Welfare establishing the status of the Appellant as an educational institution.
ii. The Centre is included in Schedule to the Provident Fund Act, 1925 as a „Public Institution‟.
iii. The Centre is Government aided and certified educational institution and has signed agreements with Manipal Academy of Higher Education, a Deemed University, for providing Doctoral and Post Doctoral training to students.
iv. The Centre is exempted from Income Tax under Section 10 (23C) (vi) of the Income Tax Act, 1961 as an educational institution.
v. The Centre is recognized as a Scientific and Industrial Research Organization entitling it to administrative support from the Ministry of Science & Technology and to custom/excise duty exemptions from import of equipment, spares and consumables.
vi. The allotment of land to the Centre on account of its status as an educational institution.
vii. The applicability of ICSSR grant-in-aid rules on service matters and the rules superseding the power of the Governing Body to that extent.
viii. The use of recurring Government grant-in-aid for maintenance of permanent faculty while non-recurring grant-in-aid is used for infrastructural support.
ix. The Central Government and ICSSR have oversight authority over the Centre in terms of accounts, foreign funding and representation on the Governing Board.
x. The receipt of large funds from the Government of India, State Governments and Public Sector Undertakings and Government agencies.
xi. Income of the Centre from the work done on behalf of public bodies.
xii. The large amount of fund flow is apparent even for the financial year 2006-2007 where Rs.1.58 crore was received from public sources – recurring Government grant-in-aid Rs.69.00 lakh; profit from test & examination-Rs.47.00 lakh; rent payment from National Knowledge Commission-Rs.42.00 lakh in respect of part of premises of the Centre.

22. It may be noticed that respondent No.1 has filed documents in support of each of the aforesaid aspects and thus submitted that these are not just stray allegations but substantiated by documentary proofs and if all these factors are taken into account there can be no doubt that the Centre is amenable to writ jurisdiction under Article 226 of the Constitution of India at least in respect of matters of employment of the faculty.

23. Learned counsel also referred to some other judgements to canvas his case. In K. Krishnamacharyulu & Ors. Vs. Sri Venkateswara Hindu College of Engineering & Anr. (1997) 3 SCC 571 while dealing with the issue of maintainability of writ petition under Article 226 of the Constitution of India against a private party it was observed that there was an element of public interest in respect of pay and allowances of employees of non-aided private educational institution because there is a right to education. The Supreme Court has held that where interest is created by Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education, get an element of public interest in the performance of their duties. This in turn requires regulation of conditions of service of those employees at par with Government employees.

24. In N.K. Aggarwal Vs. Union of India & Ors. 137 (2007) DLT 153 (DB), KRIBHCO was held to be amenable to writ jurisdiction under Article 226 of the Constitution of India as the scope of activities was no way limited to manufacture and production of fertilizers but clearly involved community development and farmer benefit. The issue of question of Article 226 of the Constitution of India being applicable was held not in any way dependent on Article 12 of the Constitution of India. Once again, in Dr. T.C. Sharma Vs. Lieutenant Governor & Ors. 82 (1999) DLT 289 (DB) the aspect of public duty while exercising jurisdiction under Article 226 of the Constitution of India was emphasized in the context of SCERT in the context of its employees seeking parity with NCERT. A Division Bench of Karnataka High Court in Arun Narayan Vs. The State of Karnataka & Anr. AIR 1976 Karnataka 174 took a similar view while dealing with the aspect of admission to a private medical college.

25. We may notice that there have been two recent judgements of the Division Benches of this Court where the question of amenability to writ jurisdiction under Article 226 of the Constitution of India has been dealt with. In All India Lawyers Union (Delhi Unit) Vs. Government of NCT of Delhi & Ors. 163 (2009) DLT 319 (DB) it was observed in para 46 as under:

“MAINTAINABILITY OF WRIT PETITION
46. Article 226 of the Constitution of India states that every High Court has jurisdiction to issue appropriate writs to any person or authority for the enforcement of any fundamental right and for any other purpose. The expressions “any person” and “for any other purpose” have been explained and elucidated upon by the Supreme Court. The words “any person or authority” used in Article 226 are not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing the public function. In Shri Anadi Mukta Sadguru SMVSJM Smarak Trust & Ors v. V.R.Rudani & Ors., AIR 1989 SC 1607 the Court held that the law relating to mandamus has made the most spectacular advance. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to “any person or authority”. It can be issued “for the enforcement of any of the fundamental rights and for any other purpose”. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as nonfundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of the positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available „to reach injustice wherever it is found‟. Technicalities should not come in the way of granting that relief under Article 226. We also quote paragraphs 20 and 21 of the judgment:
“20. In Praga Tools Corporation v. Shri C.A Imanual and Ors., (1969) 3 SCR 773 : (AIR 1969 Supreme Court 1306) , this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at 778) ; “It is however not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body, A mandamus can issue, for instance, to an official or a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsbury’s Laws of England (3rd Ed. Vol. II p. 52 and onwards).”

21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute Commenting on the development of this law, Professor De Smith states : “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.” (Judicial Review of administrative Act 4th Ed. p.540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ‘to reach injustice whenever it is found’. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.”

26. Thereafter a reference was made to the pronouncement of the Supreme Court in various matters as discussed aforesaid.

27. In Saroj Devi (Widow) Vs. Union of India & Ors. 156 (2009) DLT 429 (DB) this very Bench had an occasion to deal with the question of amenability to writ jurisdiction under Article 226 of the Constitution of India in respect of allotment of a house under Army Welfare Housing Organisation, society registered under the Societies Registration Act, 1860. We are naturally of the same view and instead of embarking on a detailed discussion consider it appropriate to reproduce our observations made in the said judgement: “Whether the writ filed by the petitioner for redressal of her grievance is maintainable under Article 226 of the Constitution of India?

The aspect of maintainability of the writ petition under Article 226 of the Constitution of India has to be considered with reference to the said Article which reads as under:
226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, order or writs, including (writs the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.
We have unfortunately not had the benefit of reference to any case law by both the learned counsel for the parties. It is, however, necessary to examine the legal position in this behalf in order to appreciate the factual matrix.
In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors; (1989) 2 SCC 691 the difference in the meaning of the word „authority‟ as used under Article 226 of the Constitution of India and under Article 12 of the Constitution of India has been brought out. It was observed that a writ petition under Article 226 of the Constitution of India would be maintainable even against a private body as it would fall within the definition of „any person or authority‟ performing a public duty and owing a positive obligation to the affected party. Such a duty on the person or authority need not be imposed by Statute so long as it is doing a public function having a public character. In the facts of the case, the writ petition had been filed under Article 226 of the Constitution of India by the retrenched teachers of a public aided college (a public trust) affiliated to the University seeking a writ of mandamus for compelling the college management to pay them terminal benefits and arrears of salary due. Such a petition was held to be maintainable. The maintainability of the writ petition was challenged on the ground that the respondent-entity was a registered trust under the Bombay Trust Act and thus not amenable to the writ jurisdiction of the High Court. A distinction was made between enforcing the service contract and claiming terminal benefits and arrears of salary. It would be useful to reproduce the following observations:

“15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See-The Evolving Indian Administrative Law by M.P. Jain (1983) p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus can not be refused to the aggrieved party.

16. The Law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(c) of the Law Commission Act, 1965, requested the Law Commission “to review the existing remedies for the judicial control of administrative acts and commissions with a view to evolving a simpler and more effective procedure.” The Law Commission made their report in March 1976 (Law Com No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act 1981. It combined all the former remedies into one proceeding called Judicial Review. Lord Denning explains the scope of this “judicial review”:

At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge.

The Statute is phrased in flexible terms, It gives scope for development. It uses the words “having regard to”. Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to ‘have regard to’ it. So the previous law as to who are-and who are not- public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing.

17. There, however, the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The ‘public authority’ for them mean every body which is created by statute and whose powers and duties are defined by statute. So Government Departments local authorities, police authorities and statutory undertakings and corporations, are all ‘public authorities’. But there is no such limitation for our High Courts to issue the writ ‘in the nature of mandamus’. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226 writs can be issued to a ‘any person or authority”. It can be issued “for the enforcement of any or the fundamental rights and for any other purpose”.

20. The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “Any parson or authority” used in Article 226 are. therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied,

21. …..
22. …..
14…..
15. It was observed that the scope of mandamus is determined by the nature of the duty to be enforced rather than the identity of the authority against whom it is sought though the courts always retain the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It was held that a body is performing a public function when it seeks to achieve some collective benefit for the public or a section thereof and is accepted by the public or a section thereof as having authority to do so. Bodies, therefore, exercise public functions when they intervene or participate in social or economic affairs in the public interest though there cannot be any general definition of „public authority‟ or „public function‟ and the facts of each case would decide the point. Once again it would be useful to extract the relevant paragraphs:

“10. The Writ of Mandamus lies to secure the performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the sovereign to subordinates. In England, in early times, it was made generally available through the Court of King’s Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporation which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. In the Administrative Law (Ninth Edition) by Sir William Wade and Christopher Forsyth, (Oxford University Press) at page 621, the following opinion is expressed:

“A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies. This difference is brought out by the relief granted in cases of ultra vires. If for example a minister or a licensing authority acts contrary to the principles of natural justice, certiorari and mandamus are standard remedies. But if a trade union disciplinary committee acts in the same way, these remedies are inapplicable: the rights of its members depend upon their contract of membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases.”

11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental functions. Several corporations and companies have also been formed by the government to run industries and to carry on trading activities. These have come to be known as Public Sector Undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between the public functions and private functions when it is being discharged by a purely private authority. A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf & Jowell in Chapter 3 para 0.24, it is stated thus:

“A body is performing a “public function” when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides “public goods” or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including: rulemaking, adjudication (and other forms of dispute resolution); inspection; and licensing.

Public functions need not be the exclusive domain of the state. Charities, self-regulatory organizations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd’s of London, churches) may in reality also perform some types of public function. As Sir John Donaldson M.R. urged, it is important for the courts to “recognize the realities of executive power” and not allow “their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted”. Nongovernmental bodies such as these are just as capable of abusing their powers as is government.”

12. In Regina v. Panel on Take-over and Merges, Ex parte Datafin Plc. and Anr. (1987) 1 Queen’s Bench Division 815, a question arose whether the Panel of Take-over and Mergers had acted in concert with other parties in breach of the City Code on Take-over and Mergers. The panel dismissed the complaint of the applicants. Though the Panel on Take-over and Mergers was purely a private body, the Court of Appeal held that the supervisory jurisdiction of the High Court was adaptable and could be extended to any body which performed or operated as an integral part of a system which performed public law duties, which was supported by public law sanctions and which was under an obligation to act judicially, but whose source of power was not simply the consent of those over whom it exercised that power; that although the panel purported to be part of a system of self-regulation and to derive its powers solely from the consent of those whom its decisions affected, it was in fact operating as an integral part of a governmental framework for the regulation of financial activity in the City of London, was supported by a periphery of statutory powers and penalties, and was under a duty in exercising what amounted to public powers to act judicially; that, therefore, the court had jurisdiction to review the panel’s decision to dismiss the applicants’complaint; but that since, on the facts, there were no grounds for interfering with the panel’s decision, the court would decline to intervene.

13. Lloyd L.J., agreeing with the opinion expressed by Sir John Donaldson M.R. held :
“I do not agree that the source of the power is the sole test whether a body is subject to judicial review, nor do I so read Lord Diplock’s speech. Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If at the end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review.”

14. In that decision, they approved the observations made by Lord Diplock in Council of Civil Service Unions v.Minister for the Civil Service (1985) A.C. 374, 409 wherein it was held :
“…for a decision to be susceptible to judicial review the decisionmaker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute; but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself, i.e., that part of the common law that is given by lawyers the label of ‘the prerogative.’ Where this is the source of decisionmaking power, the power is confined to executive officers of central as distinct from local government and in constitutional practice is generally exercised by those holding ministerial rank”

15. It is also pertinent to refer to Sir John Donaldson M.R. in that Take-Over Panel case :
“In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to is jurisdiction.”

16. The above guidelines and principles applied by English courts cannot be fully applied to Indian conditions when exercising jurisdiction under Article 226 or 32 of the Constitution. As already stated, the power of the High Courts under Article 226 is very wide and these powers have to be exercised by applying the constitutional provisions and judicial guidelines and violation, if any, of the fundamental rights guaranteed in Part III of the Constitution. In the matter of employment of workers by private bodies on the basis of contracts entered into between them, the courts had been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein.

17. This view was expressly stated by this Court in various decisions and one of the earliest decisions is The Praga Tools Corporation v. Shri C.A. Imanual and Ors.. In this case, the appellant company was a company incorporated under the Indian Companies Act and at the material time the Union Government and the Government of Andhra Pradesh held 56 per cent and 32 per cent of its shares respectively. Respondent workmen filed a writ petition under Article 226 in the High Court of Andhra Pradesh challenging the validity of an agreement entered into between the employees and the company, seeking a writ of mandamus or an order or direction restraining the appellant from implementing the said agreement. The appellant raised objection as to the maintainability of the writ petition. The learned Single Judge dismissed the petition. The Division Bench held that the petition was not maintainable against the company. However, it granted a declaration in favour of three workmen, the validity of which was challenged before this Court. This Court held at pages 589-590 as under:

“…that the applicant for a mandamus should have a legal and specific right to enforce the performance of those dues. Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or any inferior tribunal requiring him or them to do s particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorizing their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities [Cf. Halsbury’s Laws of England (3rd Ed.), Vol.II p 52 and onwards].
The company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company.”

18. It was also observed that when the High Court had held that the writ petition was not maintainable, no relief of a declaration as to invalidity of an impugned agreement between the company and its employees could be granted and that the High Court committed an error in granting such a declaration.

19. In VST Industries Limited v. VST Industries Workers’ Union and Anr. (2001) 1 SCC 298, the very same question came up for consideration. The appellant-company was engaged in the manufacture and sale of cigarettes. A petition was filed by the first respondent under Article 226 of the Constitution seeking a writ of mandamus to treat the members of the respondent Union, who were employees working in the canteen of the appellant’s factory, as employees of the appellant and for grant of monetary and other consequential benefits. Speaking for the Bench, Rajendra Babu, J., (as he then was), held as follows :
“7. In de Smith, Woolf and Jowell’s Judicial Review of Administrative Action, 5th Edn., it is noticed that not all the activities of the private bodies are subject to private law, e.g., the activities by private bodies may be governed by the standards of public when its decisions are subject to duties conferred by statute or when by virtue of the function it is performing or possible its dominant position in the market, it is under an implied duty to act in the public interest. By way of illustration, it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the court, and the purpose and nature of their detention is a matter of public concern and interest. After detailed discussion, the learned authors have summarized the position with the following propositions :
(1) The test of a whether a body is performing a public function, and is hence amenable to judicial review, may not depend upon the source of its power or whether the body is ostensibly a “public” or a “private” body.
(2) The principles of judicial review prima facie govern the activities of bodies performing public functions.
(3) However, not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review. In the following two situations judicial review will not normally be appropriate even though the body may be performing a public function
(a) Where some other branch of the law more appropriately governs the dispute between the parties. In such a case, that branch of the law and its remedies should and normally will be applied; and
(b) Where there is a contract between the litigants. In such a case the express or implied terms of the agreement should normally govern the matter. This reflects the normal approach of English law, namely, that the terms of a contract will normally govern the transaction, or other relationship between the parties, rather than the general law. Thus, where a special method of resolving disputes (such as arbitration or resolution by private or domestic tribunals) has been agreed upon by the parties (expressly or by necessary implication), that regime, and not judicial review, will normally govern the dispute.

20. Applying the above principles, this Court held that the High Court rightly held that it had no jurisdiction.

21. Another decision on the same subject is General Manager, Kisan Sahkar Chini Mills Limited, Sultanpur, UP v.Satrughan Nishad and Ors.. The appellant was a cooperative society and was engaged in the manufacture of sugar. The respondents were the workers of the appellant and they filed various writ petitions contending that they had to be treated as permanent workmen. The appellant challenged the maintainability of those writ petitions and applying the principles enunciated in VST Industries’ case (supra), it was held by this Court that the High Court had no jurisdiction to entertain an application under Article 226 of the Constitution as the mill was engaged in the manufacture and sale of sugar which would not involve any public function.

22. In Federal Bank Limited v. Sagar Thomas and Ors. the respondent was working as a Branch Manager of the appellant Bank. He was suspended and there was a disciplinary enquiry wherein he was found guilty and dismissed from service. The respondent challenged his dismissal by filing a writ petition. The learned Single Judge held that the Federal Bank was performing a public duty and as such it fell within the definition of “other authorities” under Article 12 of the Constitution. The appellant bank preferred an appeal, but the same was dismissed and the decision of the Division Bench was challenged before this Court. This Court observed that a private company carrying on business as a scheduled bank cannot be termed as carrying on statutory or public duty and it was therefore held that any business or commercial activity, whether it may be banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money which do have an impact on the economy of the country in general, cannot be classified as one falling in the category of those discharging duties or functions of a public nature. It was held that that the jurisdiction of the High Court under Article 226 could not have been invoked in that case.

29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury’s Laws of England 3 rd ed. Vol. 30, page-682,
“a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit.”
There cannot be any general definition of public authority or public action. The facts of each case decide the point.

30. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed that the Government or Government authorities at all levels is increasingly employing contractual techniques to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but in normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.

32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.”

28. We adopted the triple test criteria as laid down in Binny Limited & Anr. case (supra) to come to our conclusion and in our considered view the same course of action has to be followed in the present case. The law in this behalf is well settled yet elaborate submissions were made by learned counsels, once again, reiterating those, citing the same very pronouncements.

29. Respondent No.1 was undoubtedly appointed in pursuance to the letters of appointment as a Research Professor. DA, HRA, CCA, Transport Allowance were admissible as per the Central Government Rules enforced from time to time. Termination of appointment is by the three calendar months notice or pay in lieu thereof. Respondent No.1 was required to undertake Policy Research in pursuance to objective and programmes of the CPR.

30. The factual aspects emphasized by respondent No.1 with supporting documents are very crucial to determine the public element in the functioning of the Centre. This is in the context of the triple condition laid down in Binny Limited & Anr. case (supra) as also the observations made in K. Krishnamacharyulu & Ors. case (supra). No doubt learned counsel for the appellant sought to emphasize the research element of the work done at the Centre but it cannot be lost sight of that the Centre is carrying on regular higher education work in terms of an Agreement with Manipal Academy of Higher Education, a Deemed University, for providing Doctoral and Post Doctoral training to students. The Centre has obtained exemptions under the Income Tax Act claiming the status as an educational institution. The Government notifications have included the Centre as public institution in the Provident Fund Act and for obtaining support of Ministry of Science & Technology, the Centre has been recognized as a Scientific & Industrial Research Organisation. The allotment of land by itself could not have conferred the Centre with the public element function but this factor cannot be obliterated from the factors which are to be taken into account for determining the question of the public element of the function.

31. It is not even disputed that ICSSR Grant Rules apply to the Centre. Funds are being received by the Centre. The excuse given is that the funds themselves are not sufficient to pay the salary bills. In our view, this is no answer. This is specifically so in view of what has been explained by learned counsel for respondent No.1 while referring to the financial figures for the year 2006-2007 showing large part of recurring Government aid and the funds received from testing and examination work. We may also note that on the land made available at concessional rate structure has been built and part of the premises has been let out to the National Knowledge Commission from which rent of Rs.42.00 lakh was received for the year in question. Thus, the land is not only being put to use for activities of the Centre but the land obtained on concessional rates is being utilized for a part of the structure to be rented out to earn income towards the activities of the Centre. It cannot be said that the Government has no role to play in the functioning of the Centre.

32. Respondent No.1 may be governed by his terms & conditions of appointment, however, whether an organization like the Centre which carries on educational activity can absolve itself from judicial scrutiny under Article 226 of the Constitution of India while dealing with the violation of its norms in such termination is the moot point. We find that the answer to this is clearly in the negative.

33. The documents filed on record show that the communications have been issued from the Ministry of Human Resource, Government of India to ICSSR for pay revision of employees of research institutes/regional centres supported by ICSSR and the enhancement of aid for them in which the Centre is at serial No.1. Such revision of scales as per the communication inter alia dated 22.2.2000 shows that it has to be in accordance with the State Government notifications and where posts have been created, upgraded only after obtaining Government of India/ICSSR approvals. The pay scales and allowances of the academic and non-academic employees are to be in conformity with the UGC scales. The service conditions of employees especially relating to hours of work, payment of OTA, medical allowances, etc. are also to be identical to the State/Central Government employees. There has to be no alteration/modification in the emolument structure and service conditions without prior approval of the Government. To fully appreciate this aspect we are quoting the relevant extract of that letter, which is as under:

“The approval of the Government is subject to the following conditions:
1. Revision of scales will be either in accordance with the concerned State Gov. notification or the provision of Ministry of Finance (Deptt. Of Expenditure) OM No.F.7934)E.III-A97 dated the 2nd December, 1997. The revised scales of pay as incorporated in part „A‟ of the First Schedule to the CCS (RP) Rules, 1997 will only be admissible in the case of non-teaching employees and UGC pay scales in the case of faculty posts. In cases where no equivalence of pay scales is established either with the State or Central Govt. pay scales, the scales, recruitment qualification etc. will correspond to Central Gov. employees. Payment of the arrears will be regulated in accordance with Para 3 of the above said OM.

2. The revised scales would be admissible to those employees who opt for these in accordance with the Rules. Deduction on account of PF & CPF, as the case may be, will be made on the basis of the revised pay w.e.f. the date the employees opt to the elect the revised pay scales.

3. Revision of pay scales would be admissible in respect of such posts which have been created/upgraded only after obtaining Govt. of India‟s approval/ICSSR.

4. The pay scales and allowances (DA, HRA, CCA) of academic and non-academic employees of the Research Institutes and identical to those of the UGC in respect of the faculty and State/Central Govt. employees in respect of non-academic employees prior to the revision. The revised pay scales will not be extended to any category of employees where the pre-revised pay scales are not identical to UGC pay scales in respect of the faculty and State/Central Govt. employees in respect of non-academic posts. Such cases, if any, will be referred by the ICSSR to this Department.

5. The service conditions of the employees of the Institutes/Regional Centres specially those relating to hours of work, payment of OTA, medical allowances, etc. should also be identical to those of State/Central Govt. employees.

6. The pay scales and allowances of the academic posts, qualifications recruitment rules etc. should be as per the UGC norms or State Universities Norms.

7. The revised pay scales will not be extended in respect of the employees who are enjoying the scales of pay not approved by the Government/ICSSR but have resulted from any personal promotion or Career Growth Scheme if any. Such cases will be referred to this Department by the ICSSR separately.

8. ICSSR will bear 90% of the total expenditure on account of revised pay scales in respect of the institutes which are receiving 100% grant and 45% where the funding is on 50:50 basis between the Central Government/State Govt. 10% additionality will be met by the Institute through savings under various heads.

9. The ICSSR will ensure that the medical facilities to the staff are in line with the CS (MA) Rules.

10. Merit Promotion Scheme, if exists, should be discontinued before extension of revised pay scales.

11. All cases where there is any variation in the pattern of emoluments structure and conditions of service will be referred to Department of Secondary Education and Higher Education for consideration/approval separately and will not be extended revised pay scales without prior approval of this Department.

12. Special Audit of the Institutes will be carried out by CAG for implementation of pay revision to ensure that everything was done in conformity with UGC/Govt. Guidelines and the audit report will be submitted to the Government through ICSSR.

13. The research institutes shall not alter/modify the emolument structure and service conditions, scales of pay of the post without the prior approval of the government. While releasing the grants to respective institutions, ICSSR shall furnish to the Govt. of India the schedule of pay scales (prerevision and post-revision), number of posts, designations, recruitment qualifications, etc.”

34. There are, in fact, numerous such documents on record seeking approval of ICSSR in respect of matters of employment and the extraction is by way of an illustration as we have no doubt in our mind that matters relating to employment and the terms & conditions thereof are governed by directions of the Government of India and ICSSR which in turn governs the Centre.

35. Since the inception itself Mr. T.A. Pai had written to the then Finance Minister on 20.3.1976 while requesting for aid in the following terms:
“….The Centre is supported by State Governments and public sector undertakings and through research grants from appropriate official agencies. As a person who has always encouraged systematic studies of policy nature, you will no doubt appreciate the kind of work done by the CPR and the need to encourage such efforts so that the Government and the people could weigh the various policy options.
The reason why I am writing this letter to you is that we are now engaged in building a small corpus for the CPR. Towards this purpose, especially to enable the Centre to meet its capital expenditure etc., I am making you this request for an ad hoc nonrecurring grant of rupees five lakhs only. I have no doubt you will appreciate that this is but a small and one time grant with no recurring liabilities to the Government of India. I trust you will be kind enough to sanction this amount and instruct the appropriate agency for its release.”

36. Even in respect of construction of building and renovation thereof non-recurring grant was sought. It, thus, hardly lies in the mouth of the representatives of the Centre to claim exclusion from the Court‟s scrutiny while exercising jurisdiction under Article 226 of the Constitution of India.

37. We are, thus, unequivocally of the view that in matters of service conditions including of appointment and termination and grievances arising therefrom the scrutiny under Article 226 of the Constitution of India cannot be excluded having a public element and thus the learned single Judge was right in coming to the conclusion that the matter could be examined under Article 226 of the Constitution of India.

38. We also find that having found that the action of respondent No.5, Dr. V.A. Pai Panandiker left much to be desired, the imposition of personal costs on him can hardly be said to be erroneous or calling for interference. We may, however, note that even these costs have not been paid though no stay was granted in that behalf.

39. The appeals are, thus, meritless except to the extent of what we have observed insofar as the aspect of Article 12 of the Constitution of India examined in the impugned judgement.

40. The appeals are accordingly dismissed with costs of Rs.10,000.00 each.

SANJAY KISHAN KAUL, J.
MOOL CHAND GARG, J.

MARCH 12, 2010
b’nesh

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1267 of 2004
Smt. Selvi & Ors.    … Appellants
Versus
State of Karnataka   … Respondent
With
Criminal Appeal Nos. 54 of 2005, 55 of 2005, 56-57 of 2005, 58-59 of 2005, 1199 of 2006, 1471 of 2007, and Nos.987 &
990 of 2010 [Arising out of SLP (Crl.) Nos. 10 of 2006 and 6711 of 2007]

JUDGMENT

K.G. Balakrishnan, C.J.I.

Leave granted in SLP (Crl.) Nos. 10 of 2006 and 6711 of 2007.

1. The legal questions in this batch of criminal appeals relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preservation of individual liberties. Ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings.

2. Objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent. Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future as well as in circumstances where it is difficult to gather evidence through ordinary means. In some of the impugned judgments, reliance has been placed on certain provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to fully co-operate with investigation agencies. It has also been urged that administering these techniques does not cause any bodily harm and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is that these scientific techniques are a softer alternative to the regrettable and allegedly widespread use of ‘third degree methods’ by investigators.

3. The involuntary administration of the impugned techniques prompts questions about the protective scope of the ‘right against self-incrimination’ which finds place in Article 20(3) of our Constitution. In one of the impugned judgments, it has been held that the information extracted through methods such as ‘polygraph examination’ and the ‘Brain Electrical Activation Profile (BEAP) test’ cannot be equated with ‘testimonial compulsion’ because the test subject is not required to give verbal answers, thereby falling outside the protective scope of Article 20(3). It was further ruled that the verbal revelations made during a narcoanalysis test do not attract the bar of Article 20(3) since the inculpatory or exculpatory nature of these revelations is not known at the time of conducting the test. To address these questions among others, it is necessary to inquire into the historical origins and rationale behind the ‘right against self-incrimination’. The principal questions are whether this right extends to the investigation stage and whether the test results are of a ‘testimonial’ character, thereby attracting the protection of Article 20(3). Furthermore, we must examine whether relying on the test results or materials discovered with the help of the same creates a reasonable likelihood of incrimination for the test subject.

4. We must also deal with arguments invoking the guarantee of ‘substantive due process’ which is part and parcel of the idea of ‘personal liberty’ protected by Article 21 of the Constitution. The first question in this regard is whether the provisions in the Code of Criminal Procedure, 1973 that provide for ‘medical examination’ during the course of investigation can be read expansively to include the impugned techniques, even though the latter are not explicitly enumerated. To answer this question, it will be necessary to discuss the principles governing the interpretation of statutes in light of scientific advancements. Questions have also been raised with respect to the professional ethics of medical personnel involved in the administration of these techniques. Furthermore, Article 21 has been judicially expanded to include a ‘right against cruel, inhuman or degrading treatment’, which requires us to determine whether the involuntary administration of the impugned techniques violates this right whose scope corresponds with evolving international human rights norms. We must also consider contentions that have invoked the test subject’s ‘right to privacy’, both in a physical and mental sense.

5. The scientific validity of the impugned techniques has been questioned and it is argued that their results are not entirely reliable. For instance, the narcoanalysis technique involves the intravenous administration of sodium pentothal, a drug which lowers inhibitions on part of the subject and induces the person to talk freely. However, empirical studies suggest that the drug-induced revelations need not necessarily be true. Polygraph examination and the BEAP test are methods which serve the respective purposes of lie-detection and gauging the subject’s familiarity with information related to the crime. These techniques are essentially confirmatory in nature, wherein inferences are drawn from the physiological responses of the subject. However, the reliability of these methods has been repeatedly questioned in empirical studies. In the context of criminal cases, the reliability of scientific evidence bears a causal link with several dimensions of the right to a fair trial such as the requisite standard of proving guilt beyond reasonable doubt and the right of the accused to present a defence. We must be mindful of the fact that these requirements have long been recognised as components of ‘personal liberty’ under Article 21 of the Constitution. Hence it will be instructive to gather some insights about the admissibility of scientific evidence.

6. In the course of the proceedings before this Court, oral submissions were made by Mr. Rajesh Mahale, Adv. (Crl. App. No. 1267 of 2004), Mr. Manoj Goel, Adv. (Crl. App. Nos. 56-57 of 2005), Mr. Santosh Paul, Adv. (Crl. App. No. 54 of 2005) and Mr. Harish Salve, Sr. Adv. (Crl. App. Nos. 1199 of 2006 and No. 1471 of 2007) – all of whom argued against the involuntary administration of the impugned techniques. Arguments defending the compulsory administration of these techniques were presented by Mr. Goolam E. Vahanvati, Solicitor General of India [now Attorney General for India] and Mr. Anoop G. Choudhari, Sr. Adv. who appeared on behalf of the Union of India. These were further supported by Mr. T.R. Andhyarujina, Sr. Adv. who appeared on behalf of the Central Bureau of Investigation (CBI) and Mr. Sanjay Hegde, Adv. who represented the State of Karnataka. Mr. Dushyant Dave, Sr. Adv., rendered assistance as amicus curiae in this matter.

7. At this stage, it will be useful to frame the questions of law and outline the relevant sub-questions in the following manner:

I. Whether the involuntary administration of the impugned techniques violates the ‘right against self-incrimination’ enumerated in Article 20(3) of the Constitution?

I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?

I-B. Whether the results derived from the impugned techniques amount to ‘testimonial compulsion’ thereby attracting the bar of Article 20(3)?

II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on ‘personal liberty’ as understood in the context of Article 21 of the Constitution?

8. Before answering these questions, it is necessary to examine the evolution and specific uses of the impugned techniques. Hence, a description of each of the test procedures is followed by an overview of their possible uses, both within and outside the criminal justice system. It is also necessary to gauge the limitations of these techniques. Owing to the dearth of Indian decisions on this subject, we must look to precedents from foreign jurisdictions which deal with the application of these techniques in the area of criminal justice.

DESCRIPTIONS OF TESTS – USES, LIMITATIONS AND PRECEDENTS

Polygraph Examination

9. The origins of polygraph examination have been traced back to the efforts of Lombroso, a criminologist who experimented with a machine that measured blood pressure and pulse to assess the honesty of persons suspected of criminal conduct. His device was called a hydrosphygmograph. A similar device was used by psychologist William Marston during World War I in espionage cases, which proved to be a precursor to its use in the criminal justice system. In 1921, John Larson incorporated the measurement of respiration rate and by 1939 Leonard Keeler added skin conductance and an amplifier to the parameters examined by a polygraph machine.

10. The theory behind polygraph tests is that when a subject is lying in response to a question, he/she will produce physiological responses that are different from those that arise in the normal course. During the polygraph examination, several instruments are attached to the subject for measuring and recording the physiological responses. The examiner then reads these results, analyzes them and proceeds to gauge the credibility of the subject’s answers. Instruments such as cardiographs, pneumographs, cardio-cuffs and sensitive electrodes are used in the course of polygraph examinations. They measure changes in aspects such as respiration, blood pressure, blood flow, pulse and galvanic skin resistance. The truthfulness or falsity on part of the subject is assessed by relying on the records of the physiological responses. [See: Laboratory Procedure Manual – Polygraph Examination (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi – 2005)]

11. There are three prominent polygraph examination techniques:

i. The relevant-irrelevant (R-I) technique
ii. The control question (CQ) technique
iii. Directed Lie-Control (DLC) technique

Each of these techniques includes a pre-test interview during which the subject is acquainted with the test procedure and the examiner gathers the information which is needed to finalize the questions that are to be asked. An important objective of this exercise is to mitigate the possibility of a feeling of surprise on part of the subject which could be triggered by unexpected questions. This is significant because an expression of surprise could be mistaken for physiological responses that are similar to those associated with deception. [Refer: David Gallai, ‘Polygraph evidence in federal courts: Should it be admissible?’ 36 American Criminal Law Review 87-116 (Winter 1999) at p. 91]. Needless to say, the polygraph examiner should be familiar with the details of the ongoing investigation. To meet this end the investigators are required to share copies of documents such as the First Information Report (FIR), Medico-Legal Reports (MLR) and Post-Mortem Reports (PMR) depending on the nature of the facts being investigated.

12. The control-question (CQ) technique is the most commonly used one and its procedure as well as scoring system has been described in the materials submitted on behalf of CBI. The test consists of control questions and relevant questions. The control questions are irrelevant to the facts being investigated but they are intended to provoke distinct physiological responses, as well as false denials. These responses are compared with the responses triggered by the relevant questions. Theoretically, a truthful subject will show greater physiological responses to the control questions which he/she has reluctantly answered falsely, than to the relevant questions, which the subject can easily answer truthfully. Conversely, a deceptive subject will show greater physiological responses while giving false answers to relevant questions in comparison to the responses triggered by false answers to control questions. In other words, a guilty subject is more likely to be concerned with lying about the relevant facts as opposed to lying about other facts in general. An innocent subject will have no trouble in truthfully answering the relevant questions but will have trouble in giving false answers to control questions. The scoring of the tests is done by assigning a numerical value, positive or negative, to each response given by the subject. After accounting for all the numbers, the result is compared to a standard numerical value to indicate the overall level of deception. The net conclusion may indicate truth, deception or uncertainty.

13. The use of polygraph examinations in the criminal justice system has been contentious. In this case, we are mainly considered with situations when investigators seek reliance on these tests to detect deception or to verify the truth of previous testimonies. Furthermore, litigation related to polygraph tests has also involved situations where suspects and defendants in criminal cases have sought reliance on them to demonstrate their innocence. It is also conceivable that witnesses can be compelled to undergo polygraph tests in order to test the credibility of their testimonies or to question their mental capacity or to even attack their character.

14. Another controversial use of polygraph tests has been on victims of sexual offences for testing the veracity of their allegations. While several states in the U.S.A. have enacted provisions to prohibit such use, the text of the Laboratory Procedure Manual for Polygraph Examination [supra.] indicates that this is an acceptable use. In this regard, Para 3.4 (v) of the said Manual reads as follows:

“(v) In cases of alleged sex offences such as intercourse with a female child, forcible rape, indecent liberties or perversion, it is important that the victim, as well as the accused, be made available for interview and polygraph examination. It is essential that the polygraph examiner get a first hand detailed statement from the victim, and the interview of the victim precede that of the suspect or witnesses. …”

[The following article includes a table which lists out the statutorily permissible uses of polygraph examination in the different state jurisdictions of the United States of America: Henry T. Greely and Judy Illes, ‘Neuroscience based liedetection: The urgent need for regulation’, 33 American Journal of Law and Medicine, 377-421 (2007)]

15. The propriety of compelling the victims of sexual offences to undergo a polygraph examination certainly merits consideration in the present case. It must also be noted that in some jurisdictions polygraph tests have been permitted for the purpose of screening public employees, both at the stage of recruitment and at regular intervals during the service-period. In the U.S.A., the widespread acceptance of polygraph tests for checking the antecedents and monitoring the conduct of public employees has encouraged private employers to resort to the same. In fact the Employee Polygraph Protection Act, 1998 was designed to restrict their use for employee screening. This development must be noted because the unqualified acceptance of ‘Lie-detector tests’ in India’s criminal justice system could have the unintended consequence of encouraging their use by private parties.

16. Polygraph tests have several limitations and therefore a margin for errors. The premise behind these tests is questionable because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained. The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offer highly disparate physiological responses which could mislead the examiner. In some cases the subject may have suffered from loss of memory in the intervening time-period between the relevant act and the conduct of the test. When the subject does not remember the facts in question, there will be no self-awareness of truth or deception and hence the recording of the physiological responses will not be helpful. Errors may also result from ‘memory-hardening’, i.e. a process by which the subject has created and consolidated false memories about a particular incident. This commonly occurs in respect of recollections of traumatic events and the subject may not be aware of the fact that he/she is lying.

17. The errors associated with polygraph tests are broadly grouped into two categories, i.e., ‘false positives’ and ‘false negatives’. A ‘false positive’ occurs when the results indicate that a person has been deceitful even though he/she answered truthfully. Conversely a ‘false negative’ occurs when a set of deceptive responses is reported as truthful. On account of such inherent complexities, the qualifications and competence of the polygraph examiner are of the utmost importance. The examiner needs to be thorough in preparing the questionnaire and must also have the expertise to account for extraneous conditions that could lead to erroneous inferences.

18. However, the biggest concern about polygraph tests is that an examiner may not be able to recognise deliberate attempts on part of the subject to manipulate the test results. Such ‘countermeasures’ are techniques which are deliberately used by the subject to create certain physiological responses in order to deceive the examiner. The intention is that by deliberately enhancing one’s reaction to the control questions, the examiner will incorrectly score the test in favour of truthfulness rather than deception. The most commonly used ‘countermeasures’ are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by lying cannot be readily distinguished.

19. Since polygraph tests have come to be widely relied upon for employee screening in the U.S.A., the U.S. Department of Energy had requested the National Research Council of the National Academies (NRC) to review their use for different purposes. The following conclusion was stated in its report, i.e. The Polygraph and Lie-Detection: Committee to Review the scientific evidence on the Polygraph (Washington D.C.: National Academies Press, 2003) at pp. 212-213:

“Polygraph Accuracy: Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved.

Theoretical Basis: The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing.

Research Progress: Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strengthened its scientific underpinnings in any significant manner. Polygraph research has proceeded in relative isolation from related fields of basic science and has benefited little from conceptual, theoretical, and technological advances in those fields that are relevant to the psychophysiological detection of deception.

Future Potential: The inherent ambiguity of the physiological measures used in the polygraph suggests that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy.”

20. A Working Party of the British Psychological Society (BPS) also came to a similar conclusion in a study published in 2004. The key finding is reproduced below, [Cited from: A Review of the current scientific status and fields of application of polygraph deception detection – Final Report (6 October, 2004) from The British Psychological Society (BPS) Working Party at p. 10]:

“A polygraph is sometimes called a lie detector, but this term is misleading. A polygraph does not detect lies, but only arousal which is assumed to accompany telling a lie. Polygraph examiners have no other option than to measure deception in such an indirect way, as a pattern of physiological activity directly related to lying does not exist (Saxe, 1991). Three of the four most popular lie detection procedures using the polygraph (Relevant/Irrelevant Test, Control Question Test and Directed Lie Test, …) are built upon the premise that, while answering so-called ‘relevant’ questions, liars will be more aroused than while answering so-called ‘control’ questions, due to a fear of detection (fear of getting caught lying). This premise is somewhat naive as truth tellers may also be more aroused when answering the relevant questions, particularly: (i) when these relevant questions are emotion evoking questions (e.g. when an innocent man, suspected of murdering his beloved wife, is asked questions about his wife in a polygraph test, the memory of his late wife might re-awaken his strong feelings about her); and (ii) when the innocent examinee experiences fear, which may occur, for example, when the person is afraid that his or her honest answers will not be believed by the polygraph examiner. The other popular test (Guilty Knowledge Test, …) is built upon the premise that guilty examinees will be more aroused concerning certain information due to different orienting reactions, that is, they will show enhanced orienting responses when recognising crucial details of a crime. This premise has strong support in psychophysiological research (Fiedler, Schmidt & Stahl, 2002).”

21. Coming to judicial precedents, a decision reported as Frye v. United States, (1923) 54 App DC 46, dealt with a precursor to the polygraph which detected deception by measuring changes in systolic blood pressure. In that case the defendant was subjected to this test before the trial and his counsel had requested the court that the scientist who had conducted the same should be allowed to give expert testimony about the results. Both the trial court and the appellate court rejected the request for admitting such testimony. The appellate court identified the considerations that would govern the admissibility of expert testimony based on scientific insights. It was held, Id. at p. 47:

“…Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.”

22. The standard of ‘general acceptance in the particular field’ governed the admissibility of scientific evidence for several decades. It was changed much later by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 US 579 (1993). In that case the petitioners had instituted proceedings against a pharmaceutical company which had marketed ‘Bendectin’, a prescription drug. They had alleged that the ingestion of this drug by expecting mothers had caused birth defects in the children born to them. To contest these allegations, the pharmaceutical company had submitted an affidavit authored by an epidemiologist. The petitioners had also submitted expert opinion testimony in support of their contentions. The District Court had ruled in favour of the company by ruling that their scientific evidence met the standard of ‘general acceptance in the particular field’ whereas the expert opinion testimony produced on behalf of the petitioners did not meet the said standard. The Court of Appeals for the Ninth Circuit upheld the judgment and the case reached the U.S. Supreme Court which vacated the appellate court’s judgment and remanded the case back to the trial court. It was unanimously held that the ‘general acceptance’ standard articulated in Frye (supra.) had since been displaced by the enactment of the Federal Rules of Evidence in 1975, wherein Rule 702 governed the admissibility of expert opinion testimony that was based on scientific findings. This rule provided that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

23. It was held that the trial court should have evaluated the scientific evidence as per Rule 702 of the Federal Rules of Evidence which mandates an inquiry into the relevance as well as the reliability of the scientific technique in question. The majority opinion (Blackmun, J.) noted that the trial judge’s first step should be a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and whether it can be properly applied to the facts in issue. Several other considerations will be applicable, such as:

• whether the theory or technique in question can be and has been tested
• whether it has been subjected to peer review and publication
• its known or potential error rate 24
• the existence and maintenance of standards controlling its operation
• whether it has attracted widespread acceptance within the scientific community

24. It was further observed that such an inquiry should be a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. It was reasoned that instead of the wholesale exclusion of scientific evidence on account of the high threshold of proving ‘general acceptance in the particular field’, the same could be admitted and then challenged through conventional methods such as cross-examination, presentation of contrary evidence and careful instructions to juries about the burden of proof. In this regard, the trial judge is expected to perform a ‘gate-keeping’ role to decide on the admission of expert testimony based on scientific techniques. It should also be kept in mind that Rule 403 of the Federal Rules of Evidence, 1975 empowers a trial judge to exclude any form of evidence if it is found that its probative value will be outweighed by its prejudicial effect.

25. Prior to the Daubert decision (supra.), most jurisdictions in the U.S.A. had disapproved of the use of polygraph tests in criminal cases. Some State jurisdictions had absolutely prohibited the admission of polygraph test results, while a few had allowed consideration of the same if certain conditions were met. These conditions included a prior stipulation between the parties to undergo these tests with procedural safeguards such as the involvement of experienced examiners, presence of counsel and proper recording to enable subsequent scrutiny. A dissonance had also emerged in the treatment of polygraph test results in the different Circuit jurisdictions, with some jurisdictions giving trial judges the discretion to enquire into the reliability of polygraph test results on a case-by-case basis.

26. For example, in United States v. Piccinonna, 885 F.2d 1529 (11th Circ. 1989), it was noted that in some instances polygraphy satisfied the standard of ‘general acceptance in the particular field’ as required by Frye (supra.). It was held that polygraph testimony could be admissible under two situations, namely when the parties themselves agree on a stipulation to this effect or for the purpose of impeaching and corroborating the testimony of witnesses. It was clarified that polygraph examination results could not be directly used to bolster the testimony of a witness. However, they could be used to attack the credibility of a witness or even to rehabilitate one after his/her credibility has been attacked by the other side. Despite these observations, the trial court did not admit the polygraph results on remand in this particular case.

27. However, after Daubert (supra.) prescribed a more liberal criterion for determining the admissibility of scientific evidence, some Courts ruled that weightage could be given to polygraph results. For instance in United States v. Posado, 57 F.3d 428 (5th Circ. 1995), the facts related to a pre-trial evidentiary hearing where the defendants had asked for the exclusion of forty-four kilograms of cocaine that had been recovered from their luggage at an airport. The District Court had refused to consider polygraph evidence given by the defendants in support of their version of events leading up to the seizure of the drugs and their arrest. On appeal, the Fifth Circuit Court held that the rationale for disregarding polygraph evidence did not survive the Daubert decision. The Court proceeded to remand the case to the trial court and directed that the admissibility of the polygraph results should be assessed as per the factors enumerated in Daubert (supra.). It was held, Id. at p. 434:

“There can be no doubt that tremendous advances have been made in polygraph instrumentation and technique in the years since Frye. The test at issue in Frye measured only changes in the subject’s systolic blood pressure in response to test questions. [Frye v. United States …] Modern instrumentation detects changes in the subject’s blood pressure, pulse, thoracic and abdominal respiration, and galvanic skin response. Current research indicates that, when given under controlled conditions, the polygraph technique accurately predicts truth or deception between seventy and ninety percent of the time. Remaining controversy about test accuracy is almost unanimously attributed to variations in the integrity of the testing environment and the qualifications of the examiner. Such variation also exists in many of the disciplines and for much of the scientific evidence we routinely find admissible under Rule 702. [See McCormick on Evidence 206 at 915 & n. 57] Further, there is good indication that polygraph technique and the requirements for professional polygraphists are becoming progressively more standardized. In addition, polygraph technique has been and continues to be subjected to extensive study and publication. Finally, polygraph is now so widely used by employers and government agencies alike.

To iterate, we do not now hold that polygraph examinations are scientifically valid or that they will always assist the trier of fact, in this or any other individual case. We merely remove the obstacle of the per se rule against admissibility, which was based on antiquated concepts about the technical ability of the polygraph and legal precepts that have been expressly overruled by the Supreme Court.”
(internal citations omitted)

28. Despite these favourable observations, the polygraph results were excluded by the District Court on remand. However, we have come across at least one case decided after Daubert (supra.) where a trial court had admitted expert opinion testimony about polygraph results. In United States v. Galbreth, 908 F. Supp 877 (D.N.M. 1995), the District Court took note of New Mexico Rule of Evidence 11-707 which established standards for the admission of polygraph evidence. The said provision laid down that polygraph evidence would be admissible only when the following conditions are met: the examiner must have had at least 5 years experience in conducting polygraph tests and 20 hours of continuing education within the past year; the polygraph examination must be tape recorded in its entirety; the polygraph charts must be scored quantitatively in a manner generally accepted as reliable by polygraph experts; all polygraph materials must be provided to the opposing party at least 10 days before trial; and all polygraph examinations conducted on the subject must be disclosed. It was found that all of these requirements had been complied with in the facts at hand. The District Court concluded with these words, Id. at p. 896:

“…the Court finds that the expert opinion testimony regarding the polygraph results of defendant Galbreth is admissible. However, because the evidentiary reliability of opinion testimony regarding the results of a particular polygraph test is dependent upon a properly conducted examination by a highly qualified, experienced and skilful examiner, nothing in this opinion is intended to reflect the judgment that polygraph results are per se admissible. Rather, in the context of the polygraph technique, trial courts must engage upon a case specific inquiry to determine the admissibility of such testimony.”

29. We were also alerted to the decision in United States v. Cordoba, 104 F.3d 225 (9th . Circ. 1997). In that case, the Ninth Circuit Court concluded that the position favouring absolute exclusion of unstipulated polygraph evidence had effectively been overruled in Daubert (supra.). The defendant had been convicted for the possession and distribution of cocaine since the drugs had been recovered from a van which he had been driving. However, when he took an unstipulated polygraph test, the results suggested that he was not aware of the presence of drugs in the van. At the trial stage, the prosecution had moved to suppress the test results and the District Court had accordingly excluded the polygraph evidence. However, the Ninth Circuit Court remanded the case back after finding that the trial judge should have adopted the parameters enumerated in Daubert (supra.) to decide on the admissibility of the polygraph test results. It was observed, Id. at p. 228:

“With this holding, we are not expressing new enthusiasm for admission of unstipulated polygraph evidence. The inherent problematic nature of such evidence remains. As we noted in Brown, polygraph evidence has grave potential for interfering with the deliberative process. [Brown v. Darcy, 783 F.2d 1389 (9th Circ. 1986) at 1396-1397] However, these matters are for determination by the trial judge who must not only evaluate the evidence under Rule 702, but consider admission under Rule 403. Thus, we adopt the view of Judge Jameson’s dissent in Brown that these are matters which must be left to the sound discretion of the trial court, consistent with Daubert standards.”

30. The decisions cited above had led to some uncertainty about the admissibility of polygraph test results. However, this uncertainty was laid to rest by an authoritative ruling of the U.S. Supreme Court in United States v. Scheffer, 523 US 303 (1998). In that case, an eight judge majority decided that Military Rule of Evidence 707 (which made polygraph results inadmissible in court-martial proceedings) did not violate an accused person’s Sixth Amendment right to present a defence. The relevant part of the provision follows:

“(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.”

31. The facts were that Scheffer, a U.S. Air Force serviceman had faced court-martial proceedings because a routine urinalysis showed that he had consumed methamphetamines. However, a polygraph test suggested that he had been truthful in denying the intentional consumption of the drugs. His defence of ‘innocent ingestion’ was not accepted during the court-martial proceedings and the polygraph results were not admitted in evidence. The Air Force Court of Criminal Appeals affirmed the decision given in the court-martial proceedings but the Court of Appeals for the Armed Forces reversed the same by holding that an absolute exclusion of polygraph evidence (offered to rebut an attack on the credibility of the accused) would violate Scheffer’s Sixth Amendment right to present a defence. Hence, the matter reached the Supreme Court which decided that the exclusion of polygraph evidence did not violate the said constitutional right.

32. Eight judges agreed that testimony about polygraph test results should not be admissible on account of the inherent unreliability of the results obtained. Four judges agreed that reliance on polygraph results would displace the fact-finding role of the jury and lead to collateral litigation. In the words of Clarence Thomas, J., Id. at p. 309:

“Rule 707 serves several legitimate interests in the criminal trial process. These interests include ensuring that only reliable evidence is introduced at trial, preserving the jury’s role in determining credibility, and avoiding litigation that is collateral to the primary purpose of the trial. The rule is neither arbitrary nor disproportionate in promoting these ends. Nor does it implicate a sufficiently weighty interest of the defendant to raise a constitutional concern under our precedents.”

33. On the issue of reliability, the Court took note of some Circuit Court decisions which had permitted trial courts to consider polygraph results in accordance with the Daubert factors. However, the following stance was adopted, Id. at p. 312:

“…Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence.”

34. Since a trial by jury is an essential feature of the criminal justice system in the U.S.A., concerns were expressed about preserving the jury’s core function of determining the credibility of testimony. It was observed, Id. at p. 314:

“…Unlike other expert witnesses who testify about factual matters outside the jurors’ knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth. Jurisdictions, in promulgating rules of evidence, may legitimately be concerned about the risk that juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise and at times offering, as in respondent’s case, a conclusion about the ultimate issue in the trial. Such jurisdictions may legitimately determine that the aura of infallibility attending polygraph evidence can lead jurors to abandon their duty to assess credibility and guilt. …”

35. On the issue of encouraging litigation that is collateral to the primary purpose of a trial, it was held, Id. at p. 314:

“…Allowing proffers of polygraph evidence would inevitably entail assessments of such issues as whether the test and control questions were appropriate, whether a particular polygraph examiner was qualified and had properly interpreted the physiological responses, and whether other factors such as countermeasures employed by the examinee had distorted the exam results. Such assessments would be required in each and every case. It thus offends no constitutional principle for the President to conclude that a per se rule excluding all polygraph evidence is appropriate. Because litigation over the admissibility of polygraph evidence is by its very nature collateral, a per se rule prohibiting its admission is not an arbitrary or disproportionate means of avoiding it.”

36. In the same case, Kennedy, J. filed an opinion which was joined by four judges. While there was agreement on the questionable reliability of polygraph results, a different stand was taken on the issues pertaining to the role of the jury and the concerns about collateral litigation. It was observed that the inherent reliability of the test results is a sufficient ground to exclude the polygraph test results and expert testimony related to them. Stevens, J. filed a dissenting opinion in this case.

37. We have also come across a decision of the Canadian Supreme Court in R v Beland, [1987] 36 C.C.C. (3d) 481. In that case the respondents had been charged with conspiracy to commit robbery. During their trial, one of their accomplices had given testimony which directly implicated them. The respondents contested this testimony and after the completion of the evidentiary phase of the trial, they moved an application to re-open their defence while seeking permission for each of them to undergo a polygraph examination and produce the results in evidence. The trial judge denied this motion and the respondents were convicted. However, the appellate court allowed their appeal from conviction and granted an order to re-open the trial and directed that the polygraph results be considered. On further appeal, the Supreme Court of Canada held that the results of a polygraph examination are not admissible as evidence. The majority opinion explained that the admission of polygraph test results would offend some well established rules of evidence. It examined the ‘rule against oath-helping’ which prohibits a party from presenting evidence solely for the purpose of bolstering the credibility of a witness. Consideration was also given to the ‘rule against admission of past or out-of-court statements by a witness’ as well as the restrictions on producing ‘character evidence’. The discussion also concluded that polygraph evidence is inadmissible as ‘expert evidence’.

38. With regard to the ‘rule against admission of past or outof-court statements by a witness’, McIntyre, J. observed (in Para. 11):

“…In my view, the rule against admission of consistent out-of-court statements is soundly based and particularly apposite to questions raised in connection with the use of the polygraph. Polygraph evidence when tendered would be entirely self-serving and would shed no light on the real issues before the court. Assuming, as in the case at bar, that the evidence sought to be adduced would not fall within any of the well recognized exceptions to the operation of the rule – where it is permitted to rebut the allegation of a recent fabrication or to show physical, mental or emotional condition – it should be rejected. To do otherwise is to open the trial process to the time-consuming and confusing consideration of collateral issues and to deflect the focus of the proceedings from their fundamental issue of guilt or innocence. This view is summarized by D.W. Elliott in ‘Lie-Detector Evidence: Lessons from the American Experience’ in Well and Truly Tried (Law Book Co., 1982), at pp. 129-30:

A defendant who attempts to put in the results of a test showing this truthfulness on the matters in issue is bound to fall foul of the rule against selfserving statements or, as it is sometimes called, the rule that a party cannot manufacture evidence for himself, and the falling foul will not be in any mere technical sense. The rule is sometimes applied in a mechanical unintelligent way to exclude evidence about which no realistic objection could be raised, as the leading case, Gillie v. Posho shows; but striking down defence polygraph evidence on this ground would be no mere technical reflex action of legal obscurantists. The policy behind the doctrine is a fundamental one, and defence polygraph evidence usually offends it fundamentally. As some judges have pointed out, only those defendants who successfully take examinations are likely to want the results admitted. There is no compulsion to put in the first test results obtained. A defendant can take the test many times, if necessary “examinershopping”, until he gets a result which suits him. Even stipulated tests are not free of this taint, because of course his lawyers will advise him to have several secret trial runs before the prosecution is approached. If nothing else, the dry runs will habituate him to the process and to the expected relevant questions.”

39. On the possibility of using polygraph test results as character evidence, it was observed (Para. 14):

“…What is the consequence of this rule in relation to polygraph evidence? Where such evidence is sought to be introduced it is the operator who would be called as the witness and it is clear, of course, that the purpose of his evidence would be to bolster the credibility of the accused and, in effect, to show him to be of good character by inviting the inference that he did not lie during the test. In other words, it is evidence not of general reputation but of a specific incident and its admission would be precluded under the rule. It would follow, then, that the introduction of evidence of the polygraph tests would violate the character evidence rule.”

40. Mcintyre, J. offered the following conclusions (at Paras. 18, 19 and 20):

“18. In conclusion, it is my opinion, based upon a consideration of rules of evidence long established and applied in our courts, that the polygraph has no place in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses. It is frequently argued that the polygraph represents an application of modern scientific knowledge and experience to the task of determining the veracity of human utterances. It is said that the courts should welcome this device and not cling to the imperfect methods of the past in such an important task. This argument has a superficial appeal, but, in my view, it cannot prevail in the face of realities of court procedures.

19. I would say at once that this view is not based on a fear of the inaccuracies of the polygraph. On that question we were not supplied with sufficient evidence to reach a conclusion. However, it may be said that even the finding of a significant percentage of errors in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific. It exists within our established court procedures and must always be guarded against. The compelling reason, in my view, for the exclusion of the evidence of polygraph results in judicial proceedings is two-fold. First, the admission of polygraph evidence would run counter to the well established rules of evidence which have been referred to. Second, while there is no reason why the rules of evidence should not be modified where improvement will result, it is my view that the admission of polygraph evidence will serve no purpose which is not already served. It will disrupt proceedings, cause delays, and lead to numerous complications which will result in no greater degree of certainty in the process than that which already exists.

20. Since litigation replaced trial by combat, the determination of fact, including the veracity of parties and their witnesses, has been the duty of judges or juries upon an evaluation of the statements of witnesses. This approach has led to the development of a body of rules relating to the giving and reception of evidence and we have developed methods which have served well and have gained a wide measure of approval. They have facilitated the orderly conduct of judicial proceedings and are designed to keep the focus of the proceedings on the principal issue, in a criminal case, the guilt or innocence of the accused. What would be served by the introduction of evidence of polygraph readings into the judicial process? To begin with, it must be remembered that however scientific it may be, its use in court depends on the human intervention of the operator. Whatever results are recorded by the polygraph instrument, their nature and significance reach the trier of fact through the mouth of the operator. Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science. …”

Narcoanalysis technique

41. This test involves the intravenous administration of a drug that causes the subject to enter into a hypnotic trance and become less inhibited. The drug-induced hypnotic stage is useful for investigators since it makes the subject more likely to divulge information. The drug used for this test is sodium pentothal, higher quantities of which are routinely used for inducing general anaesthesia in surgical procedures. This drug is also used in the field of psychiatry since the revelations can enable the diagnosis of mental disorders. However, we have to decide on the permissibility of resorting to this technique during a criminal investigation, despite its’ established uses in the medical field. The use of ‘truth-serums’ and hypnosis is not a recent development. Earlier versions of the narcoanalysis technique utilised substances such as scopolamine and sodium amytal. The following extracts from an article trace the evolution of this technique, [Cited from: C.W. Muehlberger, ‘Interrogation under Drug-influence: The so-called Truth serum technique’, 42(4) The Journal of Criminal Law, Criminology and Police Science 513-528 (NovDec. 1951) at pp. 513-514]:

“With the advent of anaesthesia about a century ago, it was observed that during the induction period and particularly during the recovery interval, patients were prone to make extremely naïve remarks about personal matters, which, in their normal state, would never have revealed.

Probably the earliest direct attempt to utilize this phenomenon in criminal interrogation stemmed from observations of a mild type of anaesthesia commonly used in obstetrical practice during the period of about 1903-1915 and known as ‘Twilight sleep’. This anaesthesia was obtained by hypodermic injection of solutions of morphine and scopolamine (also called ‘hyoscine’) followed by intermittent chloroform inhalations if needed. The pain relieving qualities of morphine are well known. Scopolamine appears to have the added property of blocking out memories of recent events. By the combination of these drugs in suitable dosage, morphine dulled labor pains without materially interfering with the muscular contractions of labor, while scopolamine wiped out subsequent memories of the delivery room ordeal. The technique was widely used in Europe but soon fell into disrepute among obstetricians of this country, largely due to overdosage.

During the period of extensive use of ‘twilight sleep’ it was a common experience that women who were under drug influence, were extremely candid and uninhibited in their statements. They often made remarks which obviously would never have been uttered when in their normal state. Dr. Robert E. House, an observant physician practising in Ferris, Texas, believed that a drug combination which was so effective in the removal of ordinary restraints and which produced such utter candor, might be of value in obtaining factual information from persons who were thought to be lying. Dr. House’s first paper presented in 1922 suggested drug administration quite similar to the standard ‘twilight sleep’ procedure: an initial dose of ¼ grain of morphine sulphate together with 1/100 grain of scopolamine hydrobromide, followed at 20-30 minute intervals with smaller (1/200 – 1/400 grain) doses of scopolamine and periods of light chloroform anaesthesia. Subjects were questioned as they recovered from the light chloroform anaesthesia and gave answers which subsequently proved to be true. Altogether, Dr. House reported about half-a-dozen cases, several of which were instrumental in securing the release of convicts from State prisons, he also observed that, after returning to their normal state, these subjects had little or no recollection of what had transpired during the period of interrogation. They could not remember what questions had been asked, nor by whom; neither could they recall any answers which they had made.”

42. The use of the ‘Scopolamine’ technique led to the coining of the expression ‘truth serum’. With the passage of time, injections of sodium amytal came to be used for inducing subjects to talk freely, primarily in the field of psychiatry. The author cited above has further observed, Id. at p. 522:

“During World War II, this general technique of delving into a subject’s inner consciousness through the instrumentality of narcotic drugs was widely used in the treatment of war neuroses (sometimes called ‘Battle shock’ or ‘shell shock’). Fighting men who had been through terrifically disturbing experiences often times developed symptoms of amnesia, mental withdrawal, negativity, paralyses, or many other mental, nervous, and physical derangements. In most instances, these patients refused to talk about the experiences which gave rise to the difficulty, and psychiatrists were at a loss to discover the crux of the problem. To intelligently counteract such a force, it was first necessary to identify it. Thus, the use of sedative drugs, first to analyze the source of disturbance (narcoanalysis) and later to obtain the proper frame of mind in which the patient could and would ‘talk out’ his difficulties, and, as they say ‘get them off his chest’ – and thus relieve himself (narco-synthesis or narco-therapy) – was employed with signal success.

In the narcoanalysis of war neuroses a very light narcosis is most desirable. With small doses of injectable barbiturates (sodium amytal or sodium pentothal) or with light inhalations of nitrous oxide or somnoform, the subject pours out his pent-up emotions without much prodding by the interrogator.”

43. It has been shown that the Central Investigation Agency (C.I.A.) in the U.S.A. had conducted research on the use of sodium pentothal for aiding interrogations in intelligence and counter-terrorism operations, as early as the 1950’s [See ‘Project MKULTRA – The CIA’s program of research in behavioral modification’, On file with Schaffer Library of Drug Policy, Text available from www.druglibrary.org>]. In recent years, the debate over the use of ‘truth-serums’ has been revived with demands for their use on persons suspected of involvement in terrorist activities. Coming to the test procedure, when the drug (sodium pentothal) is administered intravenously, the subject ordinarily descends into anaesthesia in four stages, namely:

(i) Awake stage
(ii) Hypnotic stage
(iii) Sedative stage
(iv) Anaesthetic stage

44. A relatively lighter dose of sodium pentothal is injected to induce the ‘hypnotic stage’ and the questioning is conducted during the same. The hypnotic stage is maintained for the required period by controlling the rate of administration of the drug. As per the materials submitted before us, the behaviour exhibited by the subject during this stage has certain specific characteristics, namely:-

• It facilitates handling of negative emotional responses (i.e. guilt, avoidance, aggression, frustration, non-responsiveness etc.) in a positive manner.
• It helps in rapid exploration and identification of underlying conflicts in the subject’s mind and unresolved feelings about past events.
• It induces the subject to divulge information which would usually not be revealed in conscious awareness and it is difficult for the person to lie at this stage
• The reversal from this stage occurs immediately when the administration of the drug is discontinued.

[Refer: Laboratory Procedure Manual – Forensic Narco-Analysis (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi – 2005); Also see John M. Macdonald, ‘Truth Serum’, 46(2) The Journal of Criminal Law, Criminology and Police Science 259-263 (Jul.-Aug. 1955)]

45. The personnel involved in conducting a ‘narcoanalysis’ interview include a forensic psychologist, an anaesthesiologist, a psychiatrist, a general physician or other medical staff and a language interpreter if needed. Additionally a videographer is required to create video-recordings of the test for subsequent scrutiny. In India, this technique has been administered either inside forensic science laboratories or in the operation theatres of recognised hospitals. While a psychiatrist and general physician perform the preliminary function of gauging whether the subject is mentally and physically fit to undergo the test, the anaesthesiologist supervises the intravenous administration of the drug. It is the forensic psychologist who actually conducts the questioning. Since the tests are meant to aid investigation efforts, the forensic psychologist needs to closely co-operate with the investigators in order to frame appropriate questions.

46. This technique can serve several ends. The revelations could help investigators to uncover vital evidence or to corroborate pre-existing testimonies and prosecution theories. Narcoanalysis tests have also been used to detect ‘malingering’ (faking of amnesia). The premise is that during the ‘hypnotic stage’ the subject is unable to wilfully suppress the memories associated with the relevant facts. Thus, it has been urged that drug-induced revelations can help to narrow down investigation efforts, thereby saving public resources. There is of course a very real possibility that information extracted through such interviews can lead to the uncovering of independent evidence which may be relevant. Hence, we must consider the implications of such derivative use of the druginduced revelations, even if such revelations are not admissible as evidence. We must also account for the uses of this technique by persons other than investigators and prosecutors. Narcoanalysis tests could be requested by defendants who want to prove their innocence. Demands for this test could also be made for purposes such as gauging the credibility of testimony, to refresh the memory of witnesses or to ascertain the mental capacity of persons to stand trial. Such uses can have a direct impact on the efficiency of investigations as well as the fairness of criminal trials. [See generally: George H. Dession, Lawrence Z. Freedman, Richard C. Donnelly and Frederick G. Redlich, ‘Drug-Induced revelation and criminal investigation’, 62 Yale Law Journal 315-347 (February 1953)]

47. It is also important to be aware of the limitations of the ‘narcoanalysis’ technique. It does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information. Some studies have shown that most of the drug-induced revelations are not related to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects’ personal lives. It takes great skill on part of the interrogators to extract and identify information which could eventually prove to be useful. While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. This is especially worrying, since investigators who are under pressure to deliver results could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the ‘hypnotic stage’. Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the ‘narcoanalysis’ technique.

48. In an article published in 1951, C.W. Muehlberger (supra.) had described a French case which attracted controversy in 1948. Raymond Cens, who had been accused of being a Nazi collaborator, appeared to have suffered an apoplectic stroke which also caused memory loss. The French Court trying the case had authorised a board of psychiatrists to conduct an examination for ascertaining the defendant’s amnesia. The narcoanalysis technique was used in the course of the examination and the defendant did not object to the same. However, the test results showed that the subject’s memory was not impaired and that he had been faking amnesia. At the trial, testimony about these findings was admitted, thereby leading to a conviction. Subsequently, Raymond Cens filed a civil suit against the psychiatrists alleging assault and illegal search. However, it was decided that the board had used routine psychiatric procedures and since the actual physical damage to the defendant was nominal, the psychiatrists were acquitted. At the time, this case created quite a stir and the Council of the Paris Bar Association had passed a resolution against the use of drugs during interrogation. [Refer C.W. Muehlberger (1951) at p. 527; The Raymond Cens case has also been discussed in the following article: J.P. Gagnieur, ‘The Judicial use of Psychonarcosis in France’, 40(3) Journal of Criminal Law and Criminology 370-380 (Sept.–Oct. 1949)]

49. An article published in 1961 [Andre A. Moenssens, ‘Narcoanalysis in Law Enforcement’, 52(4) The Journal of Criminal Law, Criminology and Police Science 453-458 (Nov.- Dec. 1961)] had surveyed some judicial precedents from the U.S.A. which dealt with the forensic uses of the narcoanalysis technique. The first reference is to a decision from the State of Missouri reported as State v. Hudson, 314 Mo. 599 (1926). In that case, the defence lawyer in a prosecution for rape attempted to rely on the expert testimony of a doctor. The doctor in turn declared that he had questioned the defendant after injecting a truth-serum and the defendant had denied his guilt while in a drug-induced state. The trial court had refused to admit the doctor’s testimony by finding it to be completely unreliable from a scientific viewpoint. The appellate court upheld the finding and made the following observation, Id. at p. 602:

“Testimony of this character – barring the sufficient fact that it cannot be classified otherwise than a self-serving declaration – is, in the present state of human knowledge, unworthy of serious consideration. We are not told from what well this serum is drawn or in what alembic its alleged truth compelling powers are distilled. Its origin is as nebulous as its effect is uncertain. …”

50. In State v. Lindemuth, 56 N.M. 237 (1952) the testimony of a psychiatrist was not admitted when he wanted to show that the answers given by a defendant while under the influence of sodium pentothal supported the defendant’s plea of innocence in a murder case. The trial court’s refusal to admit such testimony was endorsed by the appellate court, and it was noted, Id. at p. 243:

“Until the use of the drug as a means of procuring the truth from people under its influence is accorded general scientific recognition, we are unwilling to enlarge the already immense field where medical experts, apparently equally qualified, express such diametrically opposed views on the same facts and conditions, to the despair of the court reporter and the bewilderment of the factfinder.”

51. However, Andre Moenssens (1961) also took note of a case which appeared to endorse an opposing view. In People v. Jones , 42 Cal. 2d 219 (1954), the trial court overruled the prosecution’s objection to the introduction of a psychiatrist’s testimony on behalf of the defendant. The psychiatrist had conducted several tests on the defendant which included a sodium pentothal induced interview. The Court found that this was not sufficient to exclude the psychiatrist’s testimony in its entirety. It was observed that even though the truth of statements revealed under narcoanalysis remains uncertain, the results of the same could be clearly distinguished from the psychiatrist’s overall conclusions which were based on the results of all the tests considered together.

52. At the federal level, the U.S. Court of Appeals for the Ninth Circuit dealt with a similar issue in Lindsey v. United States, 237 F. 2d 893 (9th Circ. 1956). In that case, the trial court had admitted a psychiatrist’s opinion testimony which was based on a clinical examination that included psychological tests and a sodium pentothal induced interview. The subject of the interview was a fifteen-year old girl who had been sexually assaulted and had subsequently testified in a prosecution for rape. On cross-examination, the credibility of the victim’s testimony had been doubted and in an attempt to rebut the same, the prosecution had called on the psychiatrist. On the basis of the results of the clinical examination, the psychiatrist offered his professional opinion that the victim had been telling the truth when she had repeated the charges that were previously made to the police. This testimony was admitted as a prior consistent statement to rehabilitate the witness but not considered as substantive evidence. Furthermore, a tape recording of the psychiatrist’s interview with the girl, while she was under narcosis, was also considered as evidence. The jury went on to record a finding of guilt. When the case was brought in appeal before the Ninth Circuit Court, the conviction was reversed on the ground that the defendant had been denied the ‘due process of law’. It was held that before a prior consistent statement made under the influence of a sodium pentothal injection could be admitted as evidence, it should be scientifically established that the test is absolutely accurate and reliable in all cases. Although the value of the test in psychiatric examinations was recognised, it was pointed out that the reliability of sodium pentothal tests had not been sufficiently established to warrant admission of its results in evidence. It was stated that “Scientific tests reveal that people thus prompted to speak freely do not always tell the truth”. [Cited from Andre A. Moenssens (1961) at pp. 455- 456]

53. In Lawrence M. Dugan v. Commonwealth of Kentucky, 333 S.W.2d. 755 (1960), the defendant had been given a truth serum test by a psychiatrist employed by him. The trial court refused to admit the psychiatrist’s testimony which supported the truthfulness of the defendant’s statement. The defendant had pleaded innocence by saying that a shooting which had resulted in the death of another person had been an accident. The trial court’s decision was affirmed on appeal and is was reasoned that no court of last resort has recognised the admissibility of the results of truth serum tests, the principal ground being that such tests have not attained sufficient recognition of dependability and reliability.

54. The U.S. Supreme Court has also disapproved of the forensic uses of truth-inducing drugs in Townsend v. Sain, 372 US 293 (1963). In that case a heroin addict was arrested on the suspicion of having committed robbery and murder. While in custody he began to show severe withdrawal symptoms, following which the police officials obtained the services of a physician. In order to treat these withdrawal symptoms, the physician injected a combined dosage of 1/8 grain of Phenobarbital and 1/230 grain of Hyoscine. Hyoscine is the same as ‘Scopolamine’ which has been described earlier. This dosage appeared to have a calming effect on Townsend and after the physician’s departure he promptly responded to questioning by the police and eventually made some confessional statements. The petitioner’s statements were duly recorded by a court reporter. The next day he was taken to the office of the prosecutor where he signed the transcriptions of the statements made by him on the previous day. [The facts of this case have also been discussed in: Charles E. Sheedy, ‘Narcointerrogation of a Criminal Suspect’, 50(2) The Journal of Criminal Law, Criminology and Police Science 118-123 (JulyAug 1959) at pp. 118-119]

55. When the case came up for trial, the counsel for the petitioner brought a motion to exclude the transcripts of the statements from the evidence. However, the trial judge denied this motion and admitted the court reporter’s transcription of the confessional statements into evidence. Subsequently, a jury found Townsend to be guilty, thereby leading to his conviction. When the petitioner made a habeas corpus application before a Federal District Court, one of the main arguments advanced was that the fact of Scopolamine’s character as a truth-serum had not been brought out at the time of the motion to suppress the statements or even at the trial before the State Court. The Federal District Court denied the habeas corpus petition without a plenary evidentiary hearing, and this decision was affirmed by the Court of Appeals. Hence, the matter came before the U.S. Supreme Court. In an opinion authored by Earl Warren, C.J. the Supreme Court held that the Federal District Court had erred in denying a writ of habeas corpus without giving a plenary evidentiary hearing to examine the voluntariness of the confessional statements. Both the majority opinion as well as the dissenting opinion (Stewart, J.) concurred on the finding that a confession induced by the administration of drugs is constitutionally inadmissible in a criminal trial. On this issue, Warren, C.J. observed, 372 US 293 (1963), at pp. 307-308:

“Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. 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. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a ‘truth serum’. It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine’s properties as a ‘truth serum’, if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.”

(internal citations omitted)

56. In United States v. Swanson, 572 F.2d 523 (5 th Circ. 1978), two individuals had been convicted for conspiracy and extortion through the acts of sending threatening letters. At the trial stage, one of the defendants testified that he suffered from amnesia and therefore he could not recall his alleged acts of telephoning the co-defendant and mailing threatening letters. In order to prove such amnesia his counsel sought the admission of a taped interview between the defendant and a psychiatrist which had been conducted while the defendant was under the influence of sodium amytal. The drug-induced statements supposedly showed that the scheme was a joke or a prank. The trial court refused to admit the contents of this sodium amytal induced interview and the Fifth Circuit Court upheld this decision. In holding the same, it was also observed, Id. at p. 528:

“…Moreover, no drug-induced recall of past events which the subject is otherwise unable to recall is any more reliable than the procedure for inducing recall. Here both psychiatrists testified that sodium amytal does not ensure truthful statements. No re-creation or recall, by photograph, demonstration, drug-stimulated recall, or otherwise, would be admissible with so tenuous a predicate.”

57. A decision given by the Ninth Circuit Court in United States v. Solomon, 753 F. 2d 1522 (9 th Circ. 1985), has been cited by the respondents to support the forensic uses of the narcoanalysis technique. However, a perusal of that judgment shows that neither the actual statements made during narcoanalysis interviews nor the expert testimony relating to the same were given any weightage. The facts were that three individuals, namely Solomon, Wesley and George (a minor at the time of the crime) were accused of having committed robbery and murder by arson. After their arrest, they had changed their statements about the events relating to the alleged offences. Subsequently, Wesley gave his consent for a sodium amytal induced interview and the same was administered by a psychiatrist named Dr. Montgomery. The same psychiatrist also conducted a sodium amytal interview with George, at the request of the investigators.

58. At the trial stage, George gave testimony which proved to be incriminatory for Solomon and Wesley. However, the statements made by Wesley during the narcoanalysis interview were not admitted as evidence and even the expert testimony about the same was excluded. On appeal, the Ninth Circuit Court held that there had been no abuse of discretion by the trial court in considering the evidence before it. Solomon and Wesley had contended that the trial court should have excluded the testimony given by George before the trial judge, since the same was based on the results of the sodium amytal interview and was hence unreliable. The Court drew a distinction between the statements made during the narcoanalysis interview and the subsequent statements made before the trial court. It was observed that it was open to the defendants to show that George’s testimony during trial had been bolstered by the previous revelations made during the narcoanalysis interview. However, the connection between the drug-induced revelations and the testimony given before the trial court could not be presumed. It was further noted, Id. at p. 1525:

“The only Ninth Circuit case addressing narcoanalysis excluded a recording of and psychiatric testimony supporting an interview conducted under the influence of sodium pentothal, a precursor of sodium amytal. [Lindsey v. United States, 237 F.2d 893 (9 th Cir. 1956) …]

The case at bar is distinguishable because no testimony concerning the narcoanalysis was offered at trial. Only George’s current recollection of events was presented.

In an analogous situation, this circuit has held that the current recollections of witnesses whose memories have been refreshed by hypnosis are admissible, with the fact of hypnosis relevant to credibility only [United States v. Adams, 581 F.2d 193, 198-199 (9th Cir. 1978) …], cert. denied. We have cautioned, however, that “great care must be exercised to insure” that statements after hypnosis are not the product of hypnotic suggestion. Id.

We find no abuse of discretion in the trial court’s ruling to admit the testimony of the witness George. The court’s order denying Solomon’s Motion to Suppress reflects a careful balancing of reliability against prejudicial dangers:”

59. However, Wesley wanted to introduce expert testimony by Dr. Montgomery which would explain the effects of sodium amytal as well as the statements made during his own druginduced interview. The intent was to rehabilitate Wesley’s credibility after the prosecution had impeached it with an earlier confession. The trial court had held that even though narcoanalysis was not reliable enough to admit into evidence, Dr. Montgomery could testify about the statements made to him by Wesley, however without an explanation of the circumstances. On this issue, the Ninth Circuit Court referred to the Frye standard for the admissibility of scientific evidence. It was also noted that the trial court had the discretion to draw the necessary balance between the probative value of the evidence and its prejudicial effect. It again took note of the decision in Lindsey v. United States, 237 F. 2d 893 (1956), where the admission of a tape recording of a narcoanalysis interview along with an expert’s explanation of the technique was held to be a prejudicial error. The following conclusion was stated, 753 F.2d 1522, at p. 1526:

“Dr. Montgomery testified also that narcoanalysis is useful as a source of information that can be valuable if verified through other sources. At one point he testified that it would elicit an accurate statement of subjective memory, but later said that the subject could fabricate memories. He refused to agree that the subject would be more likely to tell the truth under narcoanalysis than if not so treated.

Wesley wanted to use the psychiatric testimony to bolster the credibility of his trial testimony that George started the fatal fire. Wesley’s statement shortly after the fire was that he himself set the fire. The probative value of the statement while under narcoanalysis that George was responsible, was the drug’s tendency to induce truthful statements.

Montgomery admitted that narcoanalysis does not reliably induce truthful statements. The judge’s exclusion of the evidence concerning narcoanalysis was not an abuse of discretion. The prejudicial effect of an aura of scientific respectability outweighed the slight probative value of the evidence.”

60. In State of New Jersey v. Daryll Pitts, 56 A.2d 1320 (N.J. 1989), the trial court had refused to admit a part of a psychiatrist’s testimony which was based on the results of the defendant’s sodium-amytal induced interview. The defendant had been charged with murder and had sought reliance on the testimony to show his unstable state of mind at the time of the homicides. Reliance on the psychiatrist’s testimony was requested during the sentencing phase of the trial in order to show a mitigating factor. On appeal, the Supreme Court of New Jersey upheld the trial court’s decision to exclude that part of the testimony which was derived from the results of the sodium-amytal interview. Reference was made to the Frye standard while observing that “in determining the admissibility of evidence derived from scientific procedures, a court must first ascertain the extent to which the reliability of such procedures has attained general acceptance within the relevant scientific community.” (Id. at p. 1344) Furthermore, the expert witnesses who had appeared at the trial had given conflicting accounts about the utility of a sodium-amytal induced interview for ascertaining the mental state of a subject with regard to past events. It was stated, Id. at p. 1348:

“On the two occasions that this Court has considered the questions, we have concluded, based on the then-existing state of scientific knowledge, that testimony derived from a sodium-amytal induced interview is inadmissible to prove the truth of the facts asserted. [See State v. Levitt, 36 N.J. 266, 275 (1961)…; State v. Sinnott, …132 A.2d 298 (1957)] Our rule is consistent with the views expressed by other courts that have addressed the issue.

…The expert testimony adduced at the Rule 8 hearing indicated that the scientific community continues to view testimony induced by sodium amytal as unreliable to ascertain truth. Thus, the trial court’s ruling excluding Dr. Sadoff’s testimony in the guilt phase was consistent with our precedents, with the weight of authority throughout the country, and also with contemporary scientific knowledge as reflected by the expert testimony. …”

(internal citations omitted)

61. Since a person subjected to the narcoanalysis technique is in a half-conscious state and loses awareness of time and place, this condition can be compared to that of a person who is in a hypnotic state. In Horvath v. R, [1979] 44 C.C.C. (2d) 385, the Supreme Court of Canada held that statements made in a hypnotic state were not voluntary and hence they cannot be admitted as evidence. It was also decided that if the posthypnotic statements relate back to the contents of what was said during the hypnotic state, the subsequent statements would be inadmissible. In that case a 17 year old boy suspected for the murder of his mother had been questioned by a police officer who had training in the use of hypnotic methods. During the deliberate interruptions in the interrogation sessions, the boy had fallen into a mild hypnotic state and had eventually confessed to the commission of the murder. He later repeated the admissions before the investigating officers and signed a confessional statement. The trial judge had found all of these statements to be inadmissible, thereby leading to an acquittal. The Court of Appeal had reversed this decision, and hence an appeal was made before the Supreme Court.

62. Notably, the appellant had refused to undergo a narcoanalysis interview or a polygraph test. It was also evident that he had not consented to the hypnosis. The multiple opinions delivered in the case examined the criterion for deciding the voluntariness of a statement. Reference was made to the well-known statement of Lord Summer in Ibrahim v. R, [1914] A.C. 599 (P.C.), at p. 609:

“It has long been established as a positive rule of English criminal law that no statement made by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”

63. In Horvath v. R (supra.), the question was whether statements made under a hypnotic state could be equated with those obtained by ‘fear of prejudice’ or ‘hope of advantage’. The Court ruled that the inquiry into the voluntariness of a statement should not be literally confined to these expressions. After examining several precedents, Spence J. held that the total circumstances surrounding the interrogation should be considered, with no particular emphasis placed on the hypnosis. It was observed that in this particular case the interrogation of the accused had resulted in his complete emotional disintegration, and hence the statements given were inadmissible. It was also held that the rule in Ibrahim v. R (supra.) that a statement must be induced by ‘fear of prejudice’ or ‘hope of advantage’ in order to be considered involuntary was not a comprehensive test. The word ‘voluntary’ should be given its ordinary and natural meaning so that the circumstances which existed in the present case could also be described as those which resulted in involuntary statements.

64. In a concurring opinion, Beetz., J. drew a comparison between statements made during hypnosis and those made under the influence of a sodium-amytal injection. It was observed, at Para. 91:

“91. Finally, voluntariness is incompatible not only with promises and threats but actual violence. Had Horvath made a statement while under the influence of an amytal injection administered without his consent, the statement would have been inadmissible because of the assault, and presumably because also of the effect of the injection on his mind. There was no physical violence in the case at bar. There is not even any evidence of bodily contact between Horvath and Sergeant Proke, but through the use of an interrogation technique involving certain physical elements such as a hypnotic quality of voice and manner, a police officer has gained unconsented access to what in a human being is of the utmost privacy, the privacy of his own mind. As I have already indicated, it is my view that this was a form of violence or intrusion of a moral or mental nature, more subtle than visible violence but not less efficient in the result than an amytal injection administered by force.”

65. In this regard, the following observations are instructive for the deciding the questions before us, at Paras. 117,118:

“117. It would appear that hypnosis and narcoanalysis are used on a consensual basis by certain police forces as well as by the defence, and it has been argued that they can serve useful purposes.

118. I refrain from commenting on such practices, short of noting that even the consensual use of hypnosis and narcoanalysis for evidentiary purposes may present problems. Under normal police interrogation, a suspect has the opportunity to renew or deny his consent to answer each question, which is no longer the case once he is, although by consent, in a state of hypnosis or under the influence of a ‘truth serum’.”

(internal citation omitted)

66. Our attention has also been drawn to the decision reported as Rock v. Arkansas, 483 US 44 (1987), in which the U.S. Supreme Court ruled that hypnotically-refreshed testimony could be admitted as evidence. The constitutional basis for admitting such testimony was the Sixth Amendment which gives every person a right to present a defence in criminal cases. However, the crucial aspect was that the trial court had admitted the oral testimony given during the trial stage rather than the actual statements made during the hypnosis session conducted earlier during the investigation stage. It was found that such hypnotically-refreshed testimony was the only defence available to the defendant in the circumstances. In such circumstances, it would of course be open to the prosecution to contest the reliability of the testimony given during the trial stage by showing that it had been bolstered by the statements made during hypnosis. It may be recalled that a similar line of reasoning had been adopted in United States v. Solomon, 753 F. 2d 1522 (9th Circ. 1985), where for the purpose of admissibility of testimony, a distinction had been drawn between the statements made during a narcoanalysis interview and the oral testimony given during the trial stage which was allegedly based on the drug-induced statements. Hence, the weight of precedents indicates that both the statements made during narcoanalysis interviews as well as expert testimony relating to the same have not been given weightage in criminal trials.

Brain Electrical Activation Profile (BEAP) test

67. The third technique in question is the ‘Brain Electrical Activation Profile test’, also known as the ‘P300 Waves test’. It is a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring ‘event-related potentials’ (ERP) i.e. electrical wave forms emitted by the brain after it has absorbed an external event. An ERP measurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activities that occur when a person is exposed to a stimulus in the form of an image or a concept expressed in words. The measurement of the cognitive brain activity allows the examiner to ascertain whether the subject recognised stimuli to which he/she was exposed. [Cited from: Andre A Moenssens, ‘Brain Fingerprinting – Can it be used to detect the innocence of persons charged with a crime?’ 70 University of Missouri at Kansas City Law Review 891-920 (Summer 2002) at p. 893]

68. By the late 19 th century it had been established that the brain functioned by emitting electrical impulses and the technology to measure them was developed in the form of the electroencephalograph (EEG) which is now commonly used in the medical field. Brain wave patterns observed through an EEG scan are fairly crude and may reflect a variety of unrelated brain activity functions. It was only with the development of computers that it became possible to sort out specific wave components on an EEG and identify the correlation between the waves and specific stimuli. The P300 wave is one such component that was discovered by Dr. Samuel Sutton in 1965. It is a specific event-related brain potential (ERP) which is triggered when information relating to a specific event is recognised by the brain as being significant or surprising.

69. The P300 waves test is conducted by attaching electrodes to the scalp of the subject, which measure the emission of the said wave components. The test needs to be conducted in an insulated and air-conditioned room in order to prevent distortions arising out of weather conditions. Much like the narcoanalysis technique and polygraph examination, this test also requires effective collaboration between the investigators and the examiner, most importantly for designing the stimuli which are called ‘probes’. Ascertaining the subject’s familiarity with the ‘probes’ can help in detecting deception or to gather useful information. The test subject is exposed to auditory or visual stimuli (words, sounds, pictures, videos) that are relevant to the facts being investigated alongside other irrelevant words and pictures. Such stimuli can be broadly classified as material ‘probes’ and neutral ‘probes’. The underlying theory is that in the case of guilty suspects, the exposure to the material probes will lead to the emission of P300 wave components which will be duly recorded by the instruments. By examining the records of these wave components the examiner can make inferences about the individual’s familiarity with the information related to the crime. [Refer: Laboratory Procedure Manual – Brain Electrical Activation Profile (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi – 2005)]

70. The P300 wave test was the precursor to other neuroscientific techniques such as ‘Brain Fingerprinting’ developed by Dr. Lawrence Farwell. The latter technique has been promoted in the context of criminal justice and has already been the subject of litigation. There is an important difference between the ‘P300 waves test’ that has been used by Forensic Science Laboratories in India and the ‘Brain Fingerprinting’ technique. Dr. Lawrence Farwell has argued that the P300 wave component is not an isolated sensory brain effect but it is part of a longer response that continues to take place after the initial P300 stimulus has occurred. This extended response bears a correlation with the cognitive processing that takes place slightly beyond the P300 wave and continues in the range of 300-800 milliseconds after the exposure to the stimulus. This extended brain wave component has been named as the MERMER (Memory-andEncoding-Related-Multifaceted-Electroencephalographic Response) effect. [See generally: Lawrence A. Farwell, ‘Brain Fingerprinting: A new paradigm in criminal investigations and counter-terrorism’, (2001) Text can be downloaded from ]

71. Functional Magnetic Resonance Imaging (FMRI) is another neuroscientific technique whose application in the forensic setting has been contentious. It involves the use of MRI scans for measuring blood flow between different parts of the brain which bears a correlation to the subject’s truthfulness or deception. FMRI-based lie-detection has also been advocated as an aid to interrogations in the context of counter-terrorism and intelligence operations, but it prompts the same legal questions that can be raised with respect to all of the techniques mentioned above. Even though these are noninvasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as ‘Brain Fingerprinting’ and ‘FMRI-based Lie-Detection’ raise numerous concerns such as those of protecting mental privacy and the harms that may arise from inferences made about the subject’s truthfulness or familiarity with the facts of a crime. [See generally: Michael S. Pardo, ‘Neuroscience evidence, legal culture and criminal procedure’, 33 American Journal of Criminal Law 301-337 (Summer 2006); Sarah E. Stoller and Paul Root Wolpe, ‘Emerging neurotechnologies for lie detection and the fifth amendment’, 33 American Journal of Law and Medicine 359-375 (2007)]

72. These neuroscientific techniques could also find application outside the criminal justice setting. For instance, Henry T. Greely (2005, Cited below) has argued that technologies that may enable a precise identification of the subject’s mental responses to specific stimuli could potentially be used for market-research by business concerns for surveying customer preferences and developing targeted advertising schemes. They could also be used to judge mental skills in the educational and employment-related settings since cognitive responses are often perceived to be linked to academic and professional competence. One can foresee the potential use of this technique to distinguish between students and employees on the basis of their cognitive responses. There are several other concerns with the development of these ‘mind-reading’ technologies especially those relating to the privacy of individuals. [Refer: Henry T. Greely, ‘Chapter 17: The social effects of advances in neuroscience: Legal problems, legal perspectives’, in Judy Illes (ed.), Neuroethics – Defining the issues in theory, practice and policy (Oxford University Press, 2005) at pp. 245-263]

73. Even though the P300 Wave component has been the subject of considerable research, its uses in the criminal justice system have not received much scholarly attention. Dr. Lawrence Farwell’s ‘Brain Fingerprinting’ technique has attracted considerable publicity but has not been the subject of any rigorous independent study. Besides this preliminary doubt, an important objection is centred on the inherent difficulty of designing the appropriate ‘probes’ for the test. Even if the ‘probes’ are prepared by an examiner who is thoroughly familiar with all aspects of the facts being investigated, there is always a chance that a subject may have had prior exposure to the material probes. In case of such prior exposure, even if the subject is found to be familiar with the probes, the same will be meaningless in the overall context of the investigation. For example, in the aftermath of crimes that receive considerable media-attention the subject can be exposed to the test stimuli in many ways. Such exposure could occur by way of reading about the crime in newspapers or magazines, watching television, listening to the radio or by word of mouth. A possibility of prior exposure to the stimuli may also arise if the investigators unintentionally reveal crucial facts about the crime to the subject before conducting the test. The subject could also be familiar with the content of the material probes for several other reasons.

74. Another significant limitation is that even if the tests demonstrate familiarity with the material probes, there is no conclusive guidance about the actual nature of the subject’s involvement in the crime being investigated. For instance a bystander who witnessed a murder or robbery could potentially be implicated as an accused if the test reveals that the said person was familiar with the information related to the same. Furthermore, in cases of amnesia or ‘memory-hardening’ on part of the subject, the tests could be blatantly misleading. Even if the inferences drawn from the ‘P300 wave test’ are used for corroborating other evidence, they could have a material bearing on a finding of guilt or innocence despite being based on an uncertain premise. [For an overview of the limitations of these neuroscientific techniques, see: John G. New, ‘If you could read my mind – Implications of neurological evidence for twenty-first century criminal jurisprudence’, 29 Journal of Legal Medicine 179-197 (April-June 2008)]

75. We have come across two precedents relatable to the use of ‘Brain Fingerprinting’ tests in criminal cases. Since this technique is considered to be an advanced version of the P300 Waves test, it will be instructive to examine these precedents. In Harrington v. Iowa, 659 N.W.2d 509 (2003), Terry J. Harrington (appellant) had been convicted for murder in 1978 and the same had allegedly been committed in the course of an attempted robbery. A crucial component of the incriminating materials was the testimony of his accomplice. However, many years later it emerged that the accomplice’s testimony was prompted by an offer of leniency from the investigating police and doubts were raised about the credibility of other witnesses as well. Subsequently it was learnt that at the time of the trial, the police had not shared with the defence some investigative reports that indicated the possible involvement of another individual in the said crime. Harrington had also undergone a ‘Brain Fingerprinting’ test under the supervision of Dr. Lawrence Farwell. The test results showed that he had no memories of the ‘probes’ relating to the act of murder. Hence, Harrington approached the District Court seeking the vacation of his conviction and an order for a new trial. Post-conviction relief was sought on grounds of newly discovered evidence which included recantation by the prosecution’s primary witness, the past suppression of police investigative reports which implicated another suspect and the results of the ‘Brain Fingerprinting’ tests. However, the District Court denied this application for post-conviction relief. This was followed by an appeal before the Supreme Court of Iowa.

76. The appellate court concluded that Harrington’s appeal was timely and his action was not time barred. The appellant was granted relief in light of a ‘due process’ violation, i.e. the failure on part of the prosecution at the time of the original trial to share the investigative reports with the defence. It was observed that the defendant’s right to a fair trial had been violated because the prosecution had suppressed evidence which was favourable to the defendant and clearly material to the issue of guilt. Hence the case was remanded back to the District Court. However, the Supreme Court of Iowa gave no weightage to the results of the ‘Brain Fingerprinting’ test and did not even inquire into their relevance or reliability. In fact it was stated: “Because the scientific testing evidence is not necessary to a resolution of this appeal, we give it no further consideration.” [659 N.W.2d 509, at p. 516]

77. The second decision brought to our attention is Slaughter v. Oklahoma, 105 P. 3d 832 (2005). In that case, Jimmy Ray Slaughter had been convicted for two murders and sentenced to death. Subsequently, he filed an application for postconviction relief before the Court of Criminal Appeals of Oklahoma which attempted to introduce in evidence an affidavit and evidentiary materials relating to a ‘Brain Fingerprinting’ test. This test had been conducted by Dr. Lawrence Farwell whose opinion was that the petitioner did not have knowledge of the ‘salient features of the crime scene’. Slaughter also sought a review of the evidence gathered through DNA testing and challenged the bullet composition analysis pertaining to the crime scene. However, the appellate court denied the application for post-conviction relief as well as the motion for an evidentiary hearing. With regard to the affidavits based on the ‘Brain Fingerprinting’ test, it was held, Id. at p. 834:

“10. Dr. Farwell makes certain claims about the Brain Fingerprinting test that are not supported by anything other than his bare affidavit. He claims the technique has been extensively tested, has been presented and analyzed in numerous peer-review articles in recognized scientific publications, has a very low rate of error, has objective standards to control its operation, and is generally accepted within the ‘relevant scientific community’. These bare claims, however, without any form of corroboration, are unconvincing and, more importantly, legally insufficient to establish Petitioner’s post-conviction request for relief. Petitioner cites one published opinion, Harrington v. State, 659 N.W.2d 509 (Iowa 2003), in which a brain fingerprinting test result was raised as error and discussed by the Iowa Supreme Court (‘a novel computer-based brain testing’). However, while the lower court in Iowa appears to have admitted the evidence under non-Daubert circumstances, the test did not ultimately factor into the Iowa Supreme Court’s published decision in any way.”

Accordingly, the following conclusion was stated, Id. at p. 836:

“18. Therefore, based upon the evidence presented, we find the Brain Fingerprinting evidence is procedurally barred under the Act and our prior cases, as it could have been raised in Petitioner’s direct appeal and, indeed, in his first application for post-conviction relief. We further find a lack of sufficient evidence that would support a conclusion that Petitioner is factually innocent or that Brain Fingerprinting, based solely upon the MERMER effect, would survive a Daubert analysis.”

CONTENTIOUS ISSUES IN THE PRESENT CASE

78. As per the Laboratory Procedure manuals, the impugned tests are being conducted at the direction of jurisdictional courts even without obtaining the consent of the intended test subjects. In most cases these tests are conducted conjunctively wherein the veracity of the information revealed through narcoanalysis is subsequently tested through a polygraph examination or the BEAP test. In some cases the investigators could first want to ascertain the capacity of the subject to deceive (through polygraph examination) or his/her familiarity with the relevant facts (through BEAP test) before conducting a narcoanalysis interview. Irrespective of the sequence in which these techniques are administered, we have to decide on their permissibility in circumstances where any of these tests are compulsorily administered, either independently or conjunctively.

79. It is plausible that investigators could obtain statements from individuals by threatening them with the possibility of administering either of these tests. The person being interrogated could possibly make self-incriminating statements on account of apprehensions that these techniques will extract the truth. Such behaviour on part of investigators is more likely to occur when the person being interrogated is unaware of his/her legal rights or is intimidated for any other reason. It is a settled principle that a statement obtained through coercion, threat or inducement is involuntary and hence inadmissible as evidence during trial. However, it is not settled whether a statement made on account of the apprehension of being forcibly subjected to the impugned tests will be involuntary and hence inadmissible. This aspect merits consideration. It is also conceivable that an individual who has undergone either of these tests would be more likely to make self-incriminating statements when he/she is later confronted with the results. The question in that regard is whether the statements that are made subsequently should be admissible as evidence. The answers to these questions rest on the permissibility of subjecting individuals to these tests without their consent.

I. Whether the involuntary administration of the impugned techniques violates the ‘right against selfincrimination’ enumerated in Article 20(3) of the Constitution?

80. Investigators could seek reliance on the impugned tests to extract information from a person who is suspected or accused of having committed a crime. Alternatively these tests could be conducted on witnesses to aid investigative efforts. As mentioned earlier, this could serve several objectives, namely those of gathering clues which could lead to the discovery of relevant evidence, to assess the credibility of previous testimony or even to ascertain the mental state of an individual. With these uses in mind, we have to decide whether the compulsory administration of these tests violates the ‘right against self-incrimination’ which finds place in Article 20(3) of the Constitution of India. Along with the ‘rule against double-jeopardy’ and the ‘rule against retrospective criminalisation’ enumerated in Article 20, it is one of the fundamental protections that controls interactions between individuals and the criminal justice system. Article 20(3) reads as follows:

“No person accused of any offence shall be compelled to be a witness against himself.”

81. The interrelationship between the ‘right against selfincrimination’ and the ‘right to fair trial’ has been recognised in most jurisdictions as well as international human rights instruments. For example, the U.S. Constitution incorporates the ‘privilege against self-incrimination’ in the text of its Fifth Amendment. The meaning and scope of this privilege has been judicially moulded by recognising it’s interrelationship with other constitutional rights such as the protection against ‘unreasonable search and seizure’ (Fourth amendment) and the guarantee of ‘due process of law’ (Fourteenth amendment). In the International Covenant on Civil and Political Rights (ICCPR), Article 14(3)(g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. In the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that ‘Everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law’. The guarantee of ‘presumption of innocence’ bears a direct link to the ‘right against selfincrimination’ since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt.

82. In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights, since this approach was recognised in Maneka Gandhi’s case, (1978) 1 SCC 248. Hence, we must examine the ‘right against self-incrimination’ in respect of its relationship with the multiple dimensions of ‘personal liberty’ under Article 21, which include guarantees such as the ‘right to fair trial’ and ‘substantive due process’. It must also be emphasized that Articles 20 and 21 have a non-derogable status within Part III of our Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a proclamation of emergency. In this regard, Article 359(1) of the Constitution of India reads as follows:-

“359. Suspension of the enforcement of the rights conferred by Part III during emergencies. – (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. …”

83. Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens have an obligation to cooperate with ongoing investigations. For instance reliance has been placed on Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens’ cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons. The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2), CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.

84. Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person’s silence during the trial stage.

Historical origins of the ‘right against self-incrimination’,

85. The right of refusal to answer questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the ‘right to fair trial’. There are competing versions about the historical origins of this concept. Some scholars have identified the origins of this right in the medieval period. In that account, it was a response to the procedure followed by English judicial bodies such as the Star Chamber and High Commissions which required defendants and suspects to take ex officio oaths. These bodies mainly decided cases involving religious non-conformism in a Protestant dominated society, as well as offences like treason and sedition. Under an ex officio oath the defendant was required to answer all questions posed by the judges and prosecutors during the trial and the failure to do so would attract punishments that often involved physical torture. It was the resistance to this practice of compelling the accused to speak which led to demands for a ‘right to silence’.

86. In an academic commentary, Leonard Levy (1969) had pointed out that the doctrinal origins of the right against selfincrimination could be traced back to the Latin maxim ‘Nemo tenetur seipsum prodere’ (i.e. no one is bound to accuse himself) and the evolution of the concept of ‘due process of law’ enumerated in the Magna Carta. [Refer: Leonard Levy, ‘The right against self-incrimination: history and judicial history’, 84(1) Political Science Quarterly 1-29 (March 1969)] The use of the ex officio oath by the ecclesiastical courts in medieval England had come under criticism from time to time, and the most prominent cause for discontentment came with its use in the Star Chamber and the High Commissions. Most scholarship has focussed on the sedition trial of John Lilburne (a vocal critic of Charles I, the then monarch) in 1637, when he refused to answer questions put to him on the ground that he had not been informed of the contents of the written complaint against him. John Lilburne went on to vehemently oppose the use of ex-officio oaths, and the Parliament of the time relented by abolishing the Star Chamber and the High Commission in 1641. This event is regarded as an important landmark in the evolution of the ‘right to silence’.

87. However, in 1648 a special committee of Parliament conducted an investigation into the loyalty of members whose opinions were offensive to the army leaders. The committee’s inquisitional conduct and its requirement that witnesses take an oath to tell the truth provoked opponents to condemn what they regarded as a revival of Star Chamber tactics. John Lilburne was once again tried for treason before this committee, this time for his outspoken criticism of the leaders who had prevailed in the struggle between the supporters of the monarch and those of the Parliament in the English civil war. John Lilburne invoked the spirit of the Magna Carta as well as the 1628 Petition of Right to argue that even after common-law indictment and without oath, he did not have to answer questions against or concerning himself. He drew a connection between the right against self-incrimination and the guarantee of a fair trial by invoking the idea of ‘due process of law’ which had been stated in the Magna Carta.

88. John H. Langbein (1994) has offered more historical insights into the emergence of the ‘right to silence’. [John H. Langbein, ‘The historical origins of the privilege against selfincrimination at common law’, 92(5) Michigan Law Review 1047-1085 (March 1994)] He draws attention to the fact that even though ex officio oaths were abolished in 1641, the practice of requiring defendants to present their own defence in criminal proceedings continued for a long time thereafter. The Star Chamber and the High Commissions had mostly tried cases involving religious non-conformists and political dissenters, thereby attracting considerable criticism. Even after their abolition, the defendants in criminal courts did not have the right to be represented by a lawyer (‘right to counsel’) or the right to request the presence of defence witnesses (‘right of compulsory process’). Hence, defendants were more or less compelled to testify on their own behalf. Even though the threat of physical torture on account of remaining silent had been removed, the defendant would face a high risk of conviction if he/she did not respond to the charges by answering the material questions posed by the judge and the prosecutor. In presenting his/her own defence during the trial, there was a strong likelihood that the contents of such testimony could strengthen the case of the prosecution and lead to conviction. With the passage of time, the right of a criminal defendant to be represented by a lawyer eventually emerged in the common law tradition. A watershed in this regard was the Treason Act of 1696 which provided for a ‘right to counsel’ as well as ‘compulsory process’ in cases involving offences such as treason. Gradually, the right to be defended by a counsel was extended to more offences, but the role of the counsel was limited in the early years. For instance defence lawyers could only help their clients with questions of law and could not make submissions related to the facts.

89. The practice of requiring the accused persons to narrate or contest the facts on their own corresponds to a prominent feature of an inquisitorial system, i.e. the testimony of the accused is viewed as the ‘best evidence’ that can be gathered. The premise behind this is that innocent persons should not be reluctant to testify on their own behalf. This approach was followed in the inquisitional procedure of the ecclesiastical courts and had thus been followed in other courts as well. The obvious problem with compelling the accused to testify on his own behalf is that an ordinary person lacks the legal training to effectively respond to suggestive and misleading questioning, which could come from the prosecutor or the judge. Furthermore, even an innocent person is at an inherent disadvantage in an environment where there may be unintentional irregularities in the testimony. Most importantly the burden of proving innocence by refuting the charges was placed on the defendant himself. In the present day, the inquisitorial conception of the defendant being the best source of evidence has long been displaced with the evolution of adversarial procedure in the common law tradition. Criminal defendants have been given protections such as the presumption of innocence, right to counsel, the right to be informed of charges, the right of compulsory process and the standard of proving guilt beyond reasonable doubt among others. It can hence be stated that it was only with the subsequent emergence of the ‘right to counsel’ that the accused’s ‘right to silence’ became meaningful. With the consolidation of the role of defence lawyers in criminal trials, a clear segregation emerged between the testimonial function performed by the accused and the defensive function performed by the lawyer. This segregation between the testimonial and defensive functions is now accepted as an essential feature of a fair trial so as to ensure a level-playing field between the prosecution and the defence. In addition to a defendant’s ‘right to silence’ during the trial stage, the protections were extended to the stage of pre-trial inquiry as well. With the enactment of the Sir John Jervis Act of 1848, provisions were made to advise the accused that he might decline to answer questions put to him in the pre-trial inquiry and to caution him that his answers to pre-trial interrogation might be used as evidence against him during the trial stage.

90. The judgment in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, at pp. 438-439, referred to the following extract from a decision of the US Supreme Court in Brown v. Walker, 161 US 591 (1896), which had later been approvingly cited by Warren, C.J. in Miranda v. Arizona, 384 US 436 (1966): “The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which have long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, were not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the case with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the inequities of the ancient system impress themselves upon the minds of the American colonists that the State, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.”

Underlying rationale of the right against self-incrimination

91. As mentioned earlier, ‘the right against self-incrimination’ is now viewed as an essential safeguard in criminal procedure. 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. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. 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 premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.

92. 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. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the ‘right against selfincrimination’ is a vital protection to ensure that the prosecution discharges the said onus.

93. These concerns have been recognised in Indian as well as foreign judicial precedents. For instance, Das Gupta, J. had observed in State of Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10, at pp. 43-44:

“… for long it has been generally agreed among those who have devoted serious thought to these problems that few things could be more harmful to the detection of crime or conviction of the real culprit, few things more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth. If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law ‘to sit comfortably in the shade rubbing red pepper into a poor devils’ eyes rather than to go about in the sun hunting up evidence.’ [Sir James Fitzjames Stephen, History of Criminal Law, p. 442] No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false – out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution makers were clearly well aware and it was to avoid them that Article 20(3) was put in the Constitution.”

94. The rationale behind the Fifth Amendment in the U.S. Constitution was eloquently explained by Goldberg. J. in Murphy v. Waterfront Commission, 378 US 52 (1964), at p. 55:

“It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of selfaccusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair stateindividual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contests with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of selfdeprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent.”

A similar view was articulated by Lord Hailsham of St. Marylebone in Wong Kam-ming v. R , [1979] 1 All ER 939, at p. 946 :

“… any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary.”

95. V.R. Krishna Iyer, J. echoed similar concerns in Nandini Satpathy’s case, (1978) 2 SCC 424, at p. 442:

“… And Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station. And in the long run, that investigation is best which uses stratagems least, that policeman deserves respect who gives his fists rest and his wits restlessness. The police are part of us and must rise in people’s esteem through firm and friendly, not foul and sneaky strategy.”

96. In spite of the constitutionally entrenched status of the right against self-incrimination, there have been some criticisms of the policy underlying the same. John Wigmore (1960) argued against a broad view of the privilege which extended the same to the investigative stage. [Refer: John Wigmore, ‘The privilege against self-incrimination, its constitutional affectation, raison d’etre and miscellaneous implications’, 51 Journal of Criminal Law, Criminology and Police Science 138 (1960)] He has asserted that the doctrinal origins of the ‘rule against involuntary confessions’ in evidence law and those of the ‘right to self-incrimination’ were entirely different and catered to different objectives. In the learned author’s opinion, the ‘rule against involuntary confessions’ evolved on account of the distrust of statements made in custody. The objective was to prevent these involuntary statements from being considered as evidence during trial but there was no prohibition against relying on statements made involuntarily during investigation. Wigmore argued that the privilege against self-incrimination should be viewed as a right that was confined to the trial stage, since the judge can intervene to prevent an accused from revealing incriminating information at that stage, while similar oversight is not always possible during the pre-trial stage.

97. In recent years, scholars such as David Dolinko (1986), Akhil Reed Amar (1997) and Mike Redmayne (2007) among others have encapsulated the objections to the scope of this right. [See: David Dolinko, ‘Is There a Rationale for the Privilege Against Self-Incrimination?’, 33 University of California Los Angeles Law Review 1063 (1986); Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven: Yale University Press, 1997) at pp. 65-70; Mike Redmayne, ‘Re-thinking the Privilege against Selfincrimination’, 27 Oxford Journal of Legal Studies 209-232 (Summer 2007)] It is argued that in aiming to create a fair state-individual balance in criminal cases, the task of the investigators and prosecutors is made unduly difficult by allowing the accused to remain silent. If the overall intent of the criminal justice system is to ensure public safety through expediency in investigations and prosecutions, it is urged that the privilege against self-incrimination protects the guilty at the cost of such utilitarian objectives. Another criticism is that adopting a broad view of this right does not deter improper practices during investigation and it instead encourages investigators to make false representations to courts about the voluntary or involuntary nature of custodial statements. It is reasoned that when investigators are under pressure to deliver results there is an inadvertent tendency to rely on methods involving coercion, threats, inducement or deception in spite of the legal prohibitions against them. Questions have also been raised about conceptual inconsistencies in the way that courts have expanded the scope of this right. One such objection is that if the legal system is obliged to respect the mental privacy of individuals, then why is there no prohibition against compelled testimony in civil cases which could expose parties to adverse consequences. Furthermore, questions have also been asked about the scope of the privilege being restricted to testimonial acts while excluding physical evidence which can be extracted through compulsion.

98. In response to John Wigmore’s thesis about the separate foundations of the ‘rule against involuntary confessions’, we must recognise the infusion of constitutional values into all branches of law, including procedural areas such as the law of evidence. While the above-mentioned criticisms have been made in academic commentaries, we must defer to the judicial precedents that control the scope of Article 20(3). For instance, the interrelationship between the privilege against selfincrimination and the requirements of observing due process of law were emphasized by William Douglas, J. in Rochin v. California, 342 US 166 (1951), at p. 178:

“As an original matter it might be debatable whether the provision in the Fifth Amendment that no person ‘shall be compelled in any criminal case to be a witness against himself’ serves the ends of justice. Not all civilized legal procedures recognize it. But the choice was made by the framers, a choice which sets a standard for legal trials in this country. The Framers made it a standard of due process for prosecutions by the Federal Government. If it is a requirement of due process for a trial in the federal courthouse, it is impossible for me to say it is not a requirement of due process for a trial in the state courthouse.”

I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?

99. The respondents have submitted that the compulsory administration of the impugned tests will only be sought to boost investigation efforts and that the test results by themselves will not be admissible as evidence. The next prong of this position is that if the test results enable the investigators to discover independent materials that are relevant to the case, such subsequently discovered materials should be admissible during trial. In order to evaluate this position, we must answer the following questions:

• Firstly, we should clarify the scope of the ‘right against self-incrimination’ – i.e. whether it should be construed as a broad protection that extends to the investigation stage or should it be viewed as a narrower right confined to the trial stage?
• Secondly, we must examine the ambit of the words ‘accused of any offence’ in Article 20(3) – i.e. whether the protection is available only to persons who are formally accused in criminal cases, or does it extend to include suspects and witnesses as well as those who apprehend incrimination in cases other than the one being investigated?
• Thirdly, we must evaluate the evidentiary value of independent materials that are subsequently discovered with the help of the test results. In light of the ‘theory of confirmation by subsequent facts’ incorporated in Section 27 of the Indian Evidence Act, 1872 we need to examine the compatibility between this section and Article 20(3). Of special concern are situations when persons could be compelled to reveal information which leads to the discovery of independent materials. To answer this question, we must clarify what constitutes ‘incrimination’ for the purpose of invoking Article 20(3).

Applicability of Article 20(3) to the stage of investigation

100. The question of whether Article 20(3) should be narrowly construed as a trial right or a broad protection that extends to the stage of investigation has been conclusively answered by our Courts. In M.P. Sharma v. Satish Chandra, [1954] SCR 1077, it was held by Jagannadhadas, J. at pp. 1087-1088:

“Broadly stated, the guarantee in Article 20(3) is against ‘testimonial compulsion’. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. …”

“Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is ‘to be a witness’ and not to ‘appear as a witness’: It follows that the protection afforded to an accused in so far as it is related to the phrase ‘to be a witness’ is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case.”

101. These observations were cited with approval by B.P. Sinha, C.J. in State of Bombay v. Kathi Kalu Oghad & Others, [1962] 3 SCR 10, at pp. 26-28. In the minority opinion, Das Gupta, J. affirmed the same position, Id. at p. 40:

“… If the protection was intended to be confined to being a witness in Court then really it would have been an idle protection. It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do proved in court through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. The contention that the protection afforded by Article 20(3) is limited to the stage of trial must therefore be rejected.”

102. The broader view of Article 20(3) was consolidated in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424:

“… Any giving of evidence, any furnishing of information, if likely to have an incriminating impact, answers the description of being a witness against oneself. Not being limited to the forensic stage by express words in Article 20(3), we have to construe the expression to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Article 20(3).This is precisely what Section 161(2) means. That sub-section relates to oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and the Code are coterminus in the protective area. While the code may be changed, the Constitution is more enduring. Therefore, we have to base our conclusion not merely upon Section 161(2) but on the more fundamental protection, although equal in ambit, contained in Article 20(3).”

(at p. 435)

“If the police can interrogate to the point of selfaccusation, the subsequent exclusion of that evidence at the trial hardly helps because the harm has already been done. The police will prove through other evidence what they have procured through forced confession. So it is that the foresight of the framers has pre-empted selfincrimination at the incipient stages by not expressly restricting it to the trial stage in court. True, compelled testimony previously obtained is excluded. But the preventive blow falls also on pre-court testimonial compulsion. The condition, as the decisions now go, is that the person compelled must be an accused. Both precedent procurement and subsequent exhibition of self-incriminating testimony are obviated by intelligent constitutional anticipation.”
(at p. 449)

103. In upholding this broad view of Article 20(3), V.R. Krishna Iyer, J. relied heavily on the decision of the US Supreme Court in Ernesto Miranda v. Arizona, 384 US 436 (1966). The majority opinion (by Earl Warren, C.J.) laid down that custodial statements could not be used as evidence unless the police officers had administered warnings about the accused’s right to remain silent. The decision also recognised the right to consult a lawyer prior to and during the course of custodial interrogations. The practice promoted by this case is that it is only after a person has ‘knowingly and intelligently’ waived of these rights after receiving a warning that the statements made thereafter can be admitted as evidence. The safeguards were prescribed in the following manner, Id. at pp. 444-445:

“…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. […] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”

104. These safeguards were designed to mitigate the disadvantages faced by a suspect in a custodial environment. This was done in recognition of the fact that methods involving deception and psychological pressure were routinely used and often encouraged in police interrogations. Emphasis was placed on the ability of the person being questioned to fully comprehend and understand the content of the stipulated warning. It was held, Id. at pp. 457-458:

“In these cases, we might not find the defendant’s statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect the precious Fifth Amendment right is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. … It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carried its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. [Professor Sutherland, ‘Crime and Confessions’, 79 Harvard Law Review 21, 37 (1965)] The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles – that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”

105. The opinion also explained the significance of having a counsel present during a custodial interrogation. It was noted, Id. at pp. 469-470:

“The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more ‘will benefit only the recidivist and the professional.’ [Brief for the National District Attorneys Association as amicus curiae, p. 14] Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. [Cited from Escobedo v. State of Illinois, 378 U.S. 478, 485 …] Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”

106. The majority decision in Miranda (supra.) was not a sudden development in U.S. constitutional law. The scope of the privilege against self-incrimination had been progressively expanded in several prior decisions. The notable feature was the recognition of the interrelationship between the Fifth Amendment and the Fourteenth Amendment’s guarantee that the government must observe the ‘due process of law’ as well as the Fourth Amendment’s protection against ‘unreasonable search and seizure’. While it is not necessary for us to survey these decisions, it will suffice to say that after Miranda (supra.), administering a warning about a person’s right to silence during custodial interrogations as well as obtaining a voluntary waiver of the prescribed rights has become a ubiquitous feature in the U.S. criminal justice system. In the absence of such a warning and voluntary waiver, there is a presumption of compulsion with regard to the custodial statements, thereby rendering them inadmissible as evidence. The position in India is different since there is no automatic presumption of compulsion in respect of custodial statements.

However, if the fact of compulsion is proved then the resulting statements are rendered inadmissible as evidence.

Who can invoke the protection of Article 20(3)? 107. The decision in Nandini Satpathy’s case, (supra.) also touched on the question of who is an ‘accused’ for the purpose of invoking Article 20(3). This question had been left open in M.P. Sharma’s case (supra.). Subsequently, it was addressed in Kathi Kalu Oghad (supra.), at p. 37:

“To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, anytime after the statement has been made.”

108. While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section 161(2), CrPC is wider. Section 161(2) read with 161(1) protects ‘any person supposed to be acquainted with the facts and circumstances of the case’ in the course of examination by the police. The language of this provision is as follows:

161. Examination of witnesses by police.

(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

109. Therefore the ‘right against self-incrimination’ protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. Krishna Iyer, J. clarified this position, (1978) 2 SCC 424, at p. 435:

“The learned Advocate General, influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable to Article 20(3), approximates the constitutional clause to the explicit statement of the prohibition in Section 161(2). This latter provision meaningfully uses the expression ‘expose himself to a criminal charge’. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him to criminal charges.”

It was further observed, Id. at pp. 451-452 (Para. 50):

“… ‘To be a witness against oneself’ is not confined to the particular offence regarding which the questioning is made but extends to other offences about which the accused has reasonable apprehension of implication from his answer. This conclusion also flows from ‘tendency to be exposed to a criminal charge’. A ‘criminal charge’ covers any criminal charge then under investigation or trial or which imminently threatens the accused.” 110. Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for giving false evidence. Therefore, the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused, suspects and witnesses during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower than the protection given to the accused during the trial stage [under Section 313(3) and Proviso (b) to Section 315(1), CrPC]. The legislative intent is to preserve the factfinding function of a criminal trial. Section 132 of the Evidence Act reads:-

“132. Witness not excused from answering on ground that answer will criminate. – A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. Proviso. – Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.”

111. Since the extension of the ‘right against selfincrimination’ to suspects and witnesses has its basis in Section 161(2), CrPC it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings. In administrative and quasi-criminal proceedings, the protection of Article 20(3) becomes available only after a person has been formally accused of committing an offence. For instance in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, [1961] 1 SCR 417, the contention related to the admissibility of a statement made before an inspector who was appointed under the Companies Act, 1923 to investigate the affairs of a company and report thereon. It had to be decided whether the persons who were examined by the concerned inspector could claim the protection of Article 20(3). The question was answered, Id. at p. 438:

“The scheme of the relevant sections is that the investigation begins broadly with a view to examine the management of the affairs of the company to find out whether any irregularities have been committed or not. In such a case there is no accusation, either formal or otherwise, against any specified individual; there may be a general allegation that the affairs are irregularly, improperly or illegally managed ; but who would be responsible for the affairs which are reported to be irregularly managed is a matter which would be determined at the end of the enquiry. At the commencement of the enquiry and indeed throughout its proceedings there is no accused person, no accuser, and no accusation against anyone that he has committed an offence. In our opinion a general enquiry and investigation into the affairs of the company thus contemplated cannot be regarded as an investigation which starts with an accusation contemplated in Article 20(3) of the Constitution. …”

112. A similar issue arose for consideration in Romesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461, wherein it was held, at p. 472: “Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, [which he is bound to do under Article 22(1) of the Constitution] for the purpose of holding an inquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act which is punishable at the trial before a Magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate.”

113. In Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600, one of the contentious issues was whether the statements recorded by a Railway Police Force (RPF) officer during an inquiry under the Railway Property (Unlawful Possession) Act, 1996 would attract the protection of Article 20(3). Sarkaria, J. held that such an inquiry was substantially different from an investigation contemplated under the CrPC, and therefore formal accusation was a necessary condition for a person to claim the protection of Article 20(3). It was observed, Id. at p. 623:

“To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person ‘accused of an offence’ within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court. In the instant case no such formal accusation has been made against the appellant when his statements in question were recorded by the RPF Officer.”

What constitutes ‘incrimination’ for the purpose of Article 20(3)?

114. We can now examine the various circumstances that could ‘expose a person to criminal charges’. The scenario under consideration is one where a person in custody is compelled to reveal information which aids the investigation efforts. The information so revealed can prove to be incriminatory in the following ways:

• • The statements made in custody could be directly relied upon by the prosecution to strengthen their case. However, if it is shown that such statements were made under circumstances of compulsion, they will be excluded from the evidence.
  • Another possibility is that of ‘derivative use’, i.e. when information revealed during questioning leads to the discovery of independent materials, thereby furnishing a link in the chain of evidence gathered by the investigators.
  • Yet another possibility is that of ‘transactional use’, i.e. when the information revealed can prove to be helpful for the investigation and prosecution in cases other than the one being investigated.
  • A common practice is that of extracting materials or information, which are then compared with materials that are already in the possession of the investigators. For instance, handwriting samples and specimen signatures are routinely obtained for the purpose of identification or corroboration.

115. The decision in Nandini Satpathy’s case (supra.) sheds light on what constitutes incrimination for the purpose of Article 20(3). Krishna Iyer, J. observed, at pp. 449-450:

“In this sense, answers that would in themselves support a conviction are confessions but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Relevant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Article 20(3) if elicited by pressure from the mouth of the accused. …

An answer acquires confessional status only if, in terms or substantially, all the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3) strikes at confessions and selfincriminations but leaves untouched other relevant facts.”

116. Reliance was also placed on the decision of the US Supreme Court in Samuel Hoffman v. United States, 341 US 479 (1951). The controversy therein was whether the privilege against self-incrimination was available to a person who was called on to testify as a witness in a grand-jury investigation. Clark, J. answered the question in the affirmative, at p. 486:

“The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. […] But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. […]”

(internal citations omitted)

“To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure may result.”

(at p. 487)

117. However, Krishna Iyer, J. also cautioned against including in the prohibition even those answers which might be used as a step towards obtaining evidence against the accused. It was stated, (1978) 2 SCC 424, at p. 451:

“The policy behind the privilege, under our scheme, does not swing so wide as to sweep out of admissibility statements neither confessional per se nor guilty in tendency but merely relevant facts which, viewed in any setting, does not have a sinister import. To spread the net so wide is to make a mockery of the examination of the suspect, so necessitous in the search for truth. Overbreadth undermines, and we demur to such morbid exaggeration of a wholesome protection. …

In Kathi Kalu Oghad’s case, this Court authoritatively observed, on the bounds between constitutional proscription and testimonial permission:

‘In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provisions, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused at least probable, considered by itself.’ [1962] 3 SCR 10, 32 Again the Court indicated that Article 20(3) could be invoked only against statements which ‘had a material bearing on the criminality of the maker of the statement’.

‘By itself’ does not exclude the setting or other integral circumstances but means something in the fact disclosed a guilt element. Blood on clothes, gold bars with notorious marks and presence on the scene or possession of the lethal weapon or corrupt currency have a tale to tell, beyond red fluid, precious metal, gazing at the stars or testing sharpness or value of the rupee. The setting of the case is an implied component of the statement.”

118. In light of these observations, we must examine the permissibility of extracting statements which may furnish a link in the chain of evidence and hence create a risk of exposure to criminal charges. The crucial question is whether such derivative use of information extracted in a custodial environment is compatible with Article 20(3). It is a settled principle that statements made in custody are considered to be unreliable unless they have been subjected to crossexamination or judicial scrutiny. The scheme created by the Code of Criminal Procedure and the Indian Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a judicial magistrate which can be given weightage. The doctrine of excluding the ‘fruits of a poisonous tree’ has been incorporated in Sections 24, 25 and 26 of the Indian Evidence Act, 1872 which read as follows:

24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. – A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

25. Confession to police officer not proved. – No confession made to a police officer shall be proved as against a person accused of any offence.

26. Confession by accused while in custody of police not to be proved against him. – No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

119. We have already referred to the language of Section 161, CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 of the CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the ‘theory of confirmation by subsequent facts’ – i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which ‘furnish a link in the chain of evidence’ needed for a successful prosecution. This provision reads as follows:

27. How much of information received from accused may be proved. – Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

120. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad (supra.). It was observed in the majority opinion by Jagannadhadas, J., at pp. 33-34:

“The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of cl. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of s. 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information.”

(emphasis supplied)

This position was made amply clear at pp. 35-36:

“Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it.”

121. The minority opinion also agreed with the majority’s conclusion on this point since Das Gupta, J., held at p. 47:

“Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence, and therefore is a ‘witness’ during the investigation. Unless, however he is ‘compelled’ to give the information he cannot be said to be ‘compelled’ to be a witness; and so Article 20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under s. 27. There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. …”

122. We must also address another line of reasoning which was adopted in one of the impugned judgments. It was stated that the exclusionary rule in evidence law is applicable to statements that are inculpatory in nature. Based on this premise, it was observed that at the time of administering the impugned tests, it cannot be ascertained whether the resulting revelations or inferences will prove to be inculpatory or exculpatory in due course. Taking this reasoning forward, it was held that the compulsory administration of the impugned tests should be permissible since the same does not necessarily lead to the extraction of inculpatory evidence. We are unable to agree with this reasoning.

123. The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage. The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. If we were to permit the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the ‘right against self-incrimination’ will be rendered meaningless. The law confers on ‘any person’ who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course.

124. However, it is conceivable that in some circumstances the testimony extracted through compulsion may not actually lead to exposure to criminal charges or penalties. For example this is a possibility when the investigators make an offer of immunity against the direct use, derivative use or transactional use of the testimony. Immunity against direct use entails that a witness will not be prosecuted on the basis of the statements made to the investigators. A protection against derivative use implies that a person will not be prosecuted on the basis of the fruits of such testimony. Immunity against transactional use will shield a witness from criminal charges in cases other than the one being investigated. It is of course entirely up to the investigating agencies to decide whether to offer immunity and in what form. Even though this is distinctly possible, it is difficult to conceive of such a situation in the context of the present case. A person who is given an offer of immunity against prosecution is far more likely to voluntarily cooperate with the investigation efforts. This could be in the form of giving testimony or helping in the discovery of material evidence. If a person is freely willing to cooperate with the investigation efforts, it would be redundant to compel such a person to undergo the impugned tests. If reliance on such tests is sought for refreshing a cooperating witness’ memory, the person will in all probability give his/her consent to undergo these tests.

125. It could be argued that the compulsory administration of the impugned tests can prove to be useful in instances where the cooperating witness has difficulty in remembering the relevant facts or is wilfully concealing crucial details. Such situations could very well arise when a person who is a coaccused is offered immunity from prosecution in return for cooperating with the investigators. Even though the right against self-incrimination is not directly applicable in such situations, the relevant legal inquiry is whether the compulsory administration of the impugned tests meets the requisite standard of ‘substantive due process’ for placing restraints on personal liberty.

126. At this juncture, it must be reiterated that Indian law incorporates the ‘rule against adverse inferences from silence’ which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b) of Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. DPP, (1935) AC 462, at p. 481: “The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.”

127. The 180th Report of the Law Commission of India (May 2002) dealt with this very issue. It considered arguments for diluting the ‘rule against adverse inferences from silence’. Apart from surveying several foreign statutes and decisions, the report took note of the fact that Section 342(2) of the erstwhile Code of Criminal Procedure, 1898 permitted the trial judge to draw an inference from the silence of the accused. However, this position was changed with the enactment of the new Code of Criminal Procedure in 1973, thereby prohibiting the making of comments as well as the drawing of inferences from the fact of an accused’s silence. In light of this, the report concluded:

“… We have reviewed the law in other countries as well as in India for the purpose of examining whether any amendments are necessary in the Code of Criminal Procedure, 1973. On a review, we find that no changes in the law relating to silence of the accused are necessary and if made, they will be ultra vires of Article 20(3) and Article 21 of the Constitution of India. We recommend accordingly.”

128. Some commentators have argued that the ‘rule against adverse inferences from silence’ should be broadly construed in order to give protection against non-penal consequences. It is reasoned that the fact of a person’s refusal to answer questions should not be held against him/her in a wide variety of settings, including those outside the context of criminal trials. A hypothetical illustration of such a setting is a deportation hearing where an illegal immigrant could be deported following a refusal to answer questions or furnish materials required by the concerned authorities. This question is relevant for the present case because a person who refuses to undergo the impugned tests during the investigative stage could face non-penal consequences which lie outside the protective scope of Article 20(3). For example, a person who refuses to undergo these tests could face the risk of custodial violence, increased police surveillance or harassment thereafter. Even a person who is compelled to undergo these tests could face such adverse consequences on account of the contents of the test results if they heighten the investigators’ suspicions. Each of these consequences, though condemnable, fall short of the requisite standard of ‘exposure to criminal charges and penalties’ that has been enumerated in Section 161(2) of the CrPC. Even though Article 20(3) will not be applicable in such circumstances, reliance can be placed on Article 21 if such non-penal consequences amount to a violation of ‘personal liberty’ as contemplated under the Constitution. In the past, this Court has recognised the rights of prisoners (undertrials as well as convicts) as well as individuals in other custodial environments to receive ‘fair, just and equitable’ treatment. For instance in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, it was decided that practices such as ‘solitary confinement’ and the use of barfetters in jails were violative of Article 21. Hence, in circumstances where persons who refuse to answer questions during the investigative stage are exposed to adverse consequences of a non-penal nature, the inquiry should account for the expansive scope of Article 21 rather than the right contemplated by Article 20(3). I-B. Whether the results derived from the impugned techniques amount to ‘testimonial compulsion’ thereby attracting the bar of Article 20(3)?

129. The next issue is whether the results gathered from the impugned tests amount to ‘testimonial compulsion’, thereby attracting the prohibition of Article 20(3). For this purpose, it is necessary to survey the precedents which deal with what constitutes ‘testimonial compulsion’ and how testimonial acts are distinguished from the collection of physical evidence. Apart from the apparent distinction between evidence of a testimonial and physical nature, some forms of testimonial acts lie outside the scope of Article 20(3). For instance, even though acts such as compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration with facts or materials that the investigators are already acquainted with. The relevant consideration for extending the protection of Article 20(3) is whether the materials are likely to lead to incrimination by themselves or ‘furnish a link in the chain of evidence’ which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred.

130. It is quite evident that the narcoanalysis technique involves a testimonial act. A subject is encouraged to speak in a drug-induced state, and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation. In one of the impugned judgments, the compulsory administration of the narcoanalysis technique was defended on the ground that at the time of conducting the test, it is not known whether the results will eventually prove to be inculpatory or exculpatory. We have already rejected this reasoning. We see no other obstruction to the proposition that the compulsory administration of the narcoanalysis technique amounts to ‘testimonial compulsion’ and thereby triggers the protection of Article 20(3).

131. However, an unresolved question is whether the results obtained through polygraph examination and the BEAP test are of a testimonial nature. In both these tests, inferences are drawn from the physiological responses of the subject and no direct reliance is placed on verbal responses. In some forms of polygraph examination, the subject may be required to offer verbal answers such as ‘Yes’ or ‘No’, but the results are based on the measurement of changes in several physiological characteristics rather than these verbal responses. In the BEAP test, the subject is not required to give any verbal responses at all and inferences are drawn from the measurement of electrical activity in the brain. In the impugned judgments, it has been held that the results obtained from both the Polygraph examination and the BEAP test do not amount to ‘testimony’ thereby lying outside the protective scope of Article 20(3). The same assertion has been reiterated before us by the counsel for the respondents. In order to evaluate this position, we must examine the contours of the expression ‘testimonial compulsion’.

132. The question of what constitutes ‘testimonial compulsion’ for the purpose of Article 20(3) was addressed in M.P. Sharma’s case (supra.). In that case, the Court considered whether the issuance of search warrants in the course of an investigation into the affairs of a company (following allegations of misappropriation and embezzlement) amounted to an infringement of Article 20(3). The search warrants issued under Section 96 of the erstwhile Code of Criminal Procedure, 1898 authorised the investigating agencies to search the premises and seize the documents maintained by the said company. The relevant observations were made by Jagannadhadas, J., at pp. 1087-1088:

“…The phrase used in Article 20(3) is ‘to be a witness’. A person can ‘be a witness’ not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness [see Section 119 of the Evidence Act or the like]. ‘To be a witness’ is nothing more than ‘to furnish evidence’, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes.
…

Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. …”

133. These observations suggest that the phrase ‘to be a witness’ is not confined to oral testimony for the purpose of invoking Article 20(3) and that it includes certain non-verbal forms of conduct such as the production of documents and the making of intelligible gestures. However, in Kathi Kalu Oghad (supra.), there was a disagreement between the majority and minority opinions on whether the expression ‘to be a witness’ was the same as ‘to furnish evidence’. In that case, this Court had examined whether certain statutory provisions, namely – Section 73 of the Evidence Act, Sections 5 and 6 of the Identification of Prisoners Act, 1920 and Section 27 of the Evidence Act were compatible with Article 20(3). Section 73 of the Evidence Act empowered courts to obtain specimen handwriting or signatures and finger impressions of an accused person for purposes of comparison. Sections 5 and 6 of the Identification of Prisoners Act empowered a Magistrate to obtain the photograph or measurements of an accused person. In respect of Section 27 of the Evidence Act, there was an agreement between the majority and the minority opinions that the use of compulsion to extract custodial statements amounts to an exception to the ‘theory of confirmation by subsequent facts’. We have already referred to the relevant observations in an earlier part of this opinion. Both the majority and minority opinions ruled that the other statutory provisions mentioned above were compatible with Article 20(3), but adopted different approaches to arrive at this conclusion. In the majority opinion it was held that the ambit of the expression ‘to be a witness’ was narrower than that of ‘furnishing evidence’. B.P. Sinha, C.J. observed, [1962] 3 SCR 10, at pp. 29-32:

“ ‘To be a witness’ may be equivalent to ‘furnishing evidence’ in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. ‘Furnishing evidence’ in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that – though they may have intended to protect an accused person from the hazards of selfincrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitutionmakers were aware of the existing law, for example, Section 73 of the Evidence Act or Section 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920).

… The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not ‘to be a witness’. ‘To be a witness’ means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said ‘to be a witness’ to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma’s case, [1954] SCR 1077, that the prohibition in cl. (3) of Art. 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. …

… Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a ‘personal testimony’ must depend on his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to ‘furnishing evidence’ in the larger sense, is not included within the expression ‘to be a witness’.

In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person atleast probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.”

134. Hence, B.P. Sinha, C.J. construed the expression ‘to be a witness’ as one that was limited to oral or documentary evidence, while further confining the same to statements that could lead to incrimination by themselves, as opposed to those used for the purpose of identification or comparison with facts already known to the investigators. The minority opinion authored by Das Gupta, J. (3 judges) took a different approach, which is evident from the following extracts, Id. at pp. 40-43:

“That brings us to the suggestion that the expression ‘to be a witness’ must be limited to a statement whether oral or in writing by an accused person imparting knowledge of relevant facts; but that mere production of some material evidence, whether documentary or otherwise would not come within the ambit of this expression. This suggestion has found favour with the majority of the Bench, we think however that this is an unduly narrow interpretation. We have to remind ourselves that while on the one hand we should bear in mind that the Constitution-makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, should not deter us from giving the words their proper meaning. It appears to us that to limit the meaning of the words ‘to be a witness’ in Art. 20(3) in the manner suggested would result in allowing compulsion to be used in procuring the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so than any oral statement of a witness might be. …

… There can be no doubt that to the ordinary user of English words, the word ‘witness’ is always associated with evidence, so that to say that ‘to be a witness’ is to ‘furnish evidence’ is really to keep to the natural meaning of the words. …

… It is clear from the scheme of the various provisions, dealing with the matter that the governing idea is that to be evidence, the oral statement or a statement contained in a document, shall have a tendency to prove a fact – whether it be a fact in issue or a relevant fact – which is sought to be proved. Though this definition of evidence is in respect of proceedings in Court it will be proper, once we have come to the conclusion, that the protection of Art. 20(3) is available even at the stage of investigation, to hold that at that stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact.

The illustrations we have given above show clearly that it is not only by imparting of his knowledge that an accused person assists the proving of a fact; he can do so even by other means, such as the production of documents which though not containing his own knowledge would have a tendency to make probable the existence of a fact in issue or a relevant fact.”

135. Even though Das Gupta, J. saw no difference between the scope of the expressions ‘to be a witness’ and ‘to furnish evidence’, the learned judge agreed with the majority’s conclusion that for the purpose of invoking Article 20(3) the evidence must be incriminating by itself. This entailed that evidence could be relied upon if it is used only for the purpose of identification or comparison with information and materials that are already in the possession of the investigators. The following observations were made at pp. 45-46:

“ … But the evidence of specimen handwriting or the impressions of the accused person’s fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. …

… This view, it may be pointed out does not in any way militate against the policy underlying the rule against ‘testimonial compulsion’ we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his hand, palm or finger or to alter the characteristics of his handwriting.

We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Art. 20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of s. 73 of the Indian Evidence Act; though we have not been able to agree with the view of our learned brethren that ‘to be a witness’ in Art. 20(3) should be equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own handwriting even though it may tend to prove facts in issue or relevant facts against him.”

136. Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling precedent, it will be useful to restate the two main premises for understanding the scope of ‘testimonial compulsion’. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to ‘personal testimony’ thereby coming within the prohibition contemplated by Article 20(3). In most cases, such ‘personal testimony’ can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or ‘furnish a link in the chain of evidence’ needed to do so. We must emphasize that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation.

137. The recognition of the distinction between testimonial acts and physical evidence for the purpose of invoking Article 20(3) of the Constitution finds a close parallel in some foreign decisions. In Armando Schmerber v. California, 384 US 757 (1966), the U.S. Supreme Court had to determine whether an involuntary blood test of a defendant had violated the Fifth Amendment. The defendant was undergoing treatment at a hospital following an automobile accident. A blood sample was taken against his will at the direction of a police officer. Analysis of the same revealed that Schmerber had been intoxicated and these results were admitted into evidence, thereby leading to his conviction for drunk driving. An objection was raised on the basis of the Fifth Amendment and the majority opinion (Brennan, J.) relied on a distinction between evidence of a ‘testimonial’ or ‘communicative’ nature as opposed to evidence of a ‘physical’ or ‘real nature’, concluding that the privilege against self-incrimination applied to the former but not to the latter. In arriving at this decision, reference was made to several precedents with a prominent one being United States v. Holt, 218 US 245 (1910). In that case, a defendant was forced to try on an article of clothing during the course of investigation. It had been ruled that the privilege against self-incrimination prohibited the use of compulsion to ‘extort communications’ from the defendant, but not the use of the defendant’s body as evidence.

138. In addition to citing John Wigmore’s position that ‘the privilege is limited to testimonial disclosures’ the Court in Schmerber also took note of other examples where it had been held that the privilege did not apply to physical evidence, which included ‘compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.’ However, it was cautioned that the privilege applied to testimonial communications, irrespective of what form they might take. Hence it was recognised that the privilege not only extended to verbal communications, but also to written words as well as gestures intended to communicate [for, e.g., pointing or nodding]. This line of thinking becomes clear because the majority opinion indicated that the distinction between testimonial and physical acts may not be readily applicable in the case of Lie-Detector tests. Brennan, J. had noted, 384 US 757 (1966), at p. 764:

“Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain ‘physical evidence,’ for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege ‘is as broad as the mischief against which it seeks to guard.’ […]”

In a recently published paper, Michael S. Pardo (2008) has made the following observation in respect of this judgment [Cited from: Michael S. Pardo, ‘Self-Incrimination and the Epistemology of Testimony’, 30 Cardozo Law Review 1023- 1046 (December 2008) at pp. 1027-1028]:

“the Court notes that even the physical-testimonial distinction may break down when physical evidence is meant to compel ‘responses which are essentially testimonial’ such as a lie-detector test measuring physiological responses during interrogation.”

139. Following the Schmerber decision (supra.), the distinction between physical and testimonial evidence has been applied in several cases. However, some complexities have also arisen in the application of the testimonial-physical distinction to various fact-situations. While we do not need to discuss these cases to decide the question before us, we must take note of the fact that the application of the testimonialphysical distinction can be highly ambiguous in relation to non-verbal forms of conduct which nevertheless convey relevant information. Among other jurisdictions, the European Court of Human Rights (ECtHR) has also taken note of the distinction between testimonial and physical acts for the purpose of invoking the privilege against self-incrimination. In Saunders v. United Kingdom, (1997) 23 EHRR 313, it was explained:

“… The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence … The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.”

Evolution of the law on ‘medical examination’

140. With respect to the testimonial-physical distinction, an important statutory development in our legal system was the introduction of provisions for medical examination with the overhauling of the Code of Criminal Procedure in 1973. Sections 53 and 54 of the CrPC contemplate the medical examination of a person who has been arrested, either at the instance of the investigating officer or even the arrested person himself. The same can also be done at the direction of the jurisdictional court.

141. However, there were no provisions for authorising such a medical examination in the erstwhile Code of Criminal Procedure, 1898. The absence of a statutory basis for the same had led courts to hold that a medical examination could not be conducted without the prior consent of the person who was to be subjected to the same. For example in Bhondar v. Emperor, AIR 1931 Cal 601, Lord Williams, J. held, at p. 602:

“If it were permitted forcibly to take hold of a prisoner and examine his body medically for the purpose of qualifying some medical witness to give medical evidence in the case against the accused there is no knowing where such procedure would stop.

… Any such examination without the consent of the accused would amount to an assault and I am quite satisfied that the police are not entitled without statutory authority to commit assaults upon prisoners for the purpose of procuring evidence against them. If the legislature desires that evidence of this kind should be given, it will be quite simple to add a short section to the Code of Criminal Procedure expressly giving power to order such a medical examination.”

S.K. Ghose, J. concurred, at p. 604:

“Nevertheless the examination of an arrested person in hospital by a doctor, not for the benefit of the prisoner’s health, but simply by way of a second search, is not provided for by Code, and is such a case the doctor may not examine the prisoner without his consent. It would be a rule of caution to have such consent noted in the medical report, so that the doctor would be in a position to testify to such consent if called upon to do so.”

A similar conclusion was arrived at by Tarkunde, J. in Deomam Shamji Patel v. State of Maharashtra, AIR 1959 Bom 284, who held that a person suspected or accused of having committed an offence cannot be forcibly subjected to a medical examination. It was also held that if police officers use force for this purpose, then a person can lawfully exercise the right of private defence to offer resistance.

142. It was the 37th and 41st Reports of the Law Commission of India which recommended the insertion of a provision in the Code of Criminal Procedure to enable medical examination without the consent of an accused. These recommendations proved to be the precursor for the inclusion of Sections 53 and 54 in the Code of Criminal Procedure, 1973. It was observed in the 37th Report (December 1967), at pp. 205-206:

“ … It will suffice to refer to the decision of the Supreme Court in Kathi Kalu, [AIR 1961 SC 1808] which has the effect of confining the privilege under Article 20(3) to testimony – written or oral. [Fn …] The Supreme Court’s judgment in Kathi Kalu should be taken as overruling the view taken in some earlier decisions, [Fn 6, 7 …] invalidating provisions similar to Section 5, Identification of Prisoners Act, 1920.

The position in the U.S.A. has been summarised [Fn 8 – Emerson G., ‘Due Process and the American Criminal Trial’, 33 Australian Law Journal 223, 231 (1964)]

‘Less certain is the protection accorded to the defendant with regard to non-testimonial physical evidence other than personal papers. Can the accused be forced to supply a sample of his blood or urine if the resultant tests are likely to further the prosecution’s case? Can he be forced to give his finger prints to wear a disguise or certain clothing, to supply a pair of shoes which might match footprints at the scene of the crime, to stand in a line-up, to submit to a hair cut or to having his hair dyed, or to have his stomach pumped or a fluoroscopic examination of the contents of his intestines? The literature on this aspect of selfincrimination is voluminous. [Fn …]

The short and reasonably accurate answer to the question posed is that almost all such physical acts can be required. [Fn …] Influenced by the historical development of the doctrine, its purpose, and the need to balance the conflicting interests of the individual and society, the courts have generally restricted the protection of the Fifth Amendment to situations where the defendant would be required to convey ideas, or where the physical acts would offend the decencies of civilized conduct.”

(some internal citations omitted)

Taking note of Kathi Kalu Oghad (supra.) and the distinction drawn between testimonial and physical acts in American cases, the Law Commission observed that a provision for examination of the body would reveal valuable evidence. This view was taken forward in the 41st Report which recommended the inclusion of a specific provision to enable medical examination during the course of investigation, irrespective of the subject’s consent. [See: 41 st Report of the Law Commission of India, Vol. I (September 1969), Para 5.1 at p. 37]

143. We were also alerted to some High Court decisions which have relied on Kathi Kalu Oghad (supra.) to approve the taking of physical evidence such as blood and hair samples in the course of investigation. Following the overhaul of the Code of Criminal Procedure in 1973, the position became amply clear. In recent years, the judicial power to order a medical examination, albeit in a different context, has been discussed by this Court in Sharda v. Dharampal, (2003) 4 SCC 493. In that case, the contention related to the validity of a civil court’s direction for conducting a medical examination to ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu Marriage Act, 1955. S.B. Sinha, J. held that Article 20(3) was anyway not applicable in a civil proceeding and that the civil court could direct the medical examination in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, since there was no ordinary statutory basis for the same. It was observed, Id. at p. 508:

“Yet again the primary duty of a court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Article 20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit.

Discretionary power under Section 151 of the Code of Civil Procedure, it is trite, can be exercised also on an application filed by the party. In certain cases medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so. In matrimonial disputes, the court also has a conciliatory role to play – even for the said purpose it may require expert advice.

Under Section 75(e) of the Code of Civil Procedure and Order 26, Rule 10-A the civil court has the requisite power to issue a direction to hold a scientific, technical or expert investigation.”

144. The decision had also cited some foreign precedents dealing with the authority of investigators and courts to require the collection of DNA samples for the purpose of comparison. In that case the discussion centered on the ‘right to privacy’. So far, the authority of investigators and courts to compel the production of DNA samples has been approved by the Orissa High Court in Thogorani v. State of Orissa, 2004 Cri L J 4003 (Ori).

145. At this juncture, it should be noted that the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination, especially with regard to the extraction of bodily substances. The amended provision reads:

53. Examination of accused by medical practitioner at the request of police officer. – (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Explanation. – In this section and in sections 53-A and 54, –

(a) ‘examination’ shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

(b)‘registered medical practitioner’ means a medical practitioner who possesses any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act , 1956 (102 of 1956) and whose name has been entered in a State Medical Register.
(emphasis supplied)

146. The respondents have urged that the impugned techniques should be read into the relevant provisions – i.e. Sections 53 and 54 of CrPC. As described earlier, a medical examination of an arrested person can be directed during the course of an investigation, either at the instance of the investigating officer or the arrested person. It has also been clarified that it is within the powers of a court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail. Furthermore, Section 53 contemplates the use of ‘force as is reasonably necessary’ for conducting a medical examination. This means that once a court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same.

147. The contentious provision is the Explanation to Sections 53, 53-A and 54 of the CrPC (amended in 2005) which has been reproduced above. It has been contended that the phrase ‘modern and scientific techniques including DNA profiling and such other tests’ should be liberally construed to include the impugned techniques. It was argued that even though the narcoanalysis technique, polygraph examination and the BEAP test have not been expressly enumerated, they could be read in by examining the legislative intent. Emphasis was placed on the phrase ‘and such other tests’ to argue that the Parliament had chosen an approach where the list of ‘modern and scientific techniques’ contemplated was illustrative and not exhaustive. It was also argued that in any case, statutory provisions can be liberally construed in light of scientific advancements. With the development of newer technologies, their use can be governed by older statutes which had been framed to regulate the older technologies used for similar purposes.

148. On the other hand, the counsel for the appellants have contended that the Parliament was well aware of the impugned techniques at the time of the 2005 amendment and consciously chose not to include them in the amended Explanation to Sections 53, 53-A and 54 of the CrPC. It was reasoned that this choice recognised the distinction between testimonial acts and physical evidence. While bodily substances such as blood, semen, sputum, sweat, hair and fingernail clippings can be readily characterised as physical evidence, the same cannot be said for the techniques in question. This argument was supported by invoking the rule of ‘ejusdem generis’ which is used in the interpretation of statutes. This rule entails that the meaning of general words which follow specific words in a statutory provision should be construed in light of the commonality between those specific words. In the present case, the substances enumerated are all examples of physical evidence. Hence the words ‘and such other tests’ which appear in the Explanation to Sections 53, 53-A and 54 of the CrPC should be construed to include the examination of physical evidence but not that of testimonial acts.

149. We are inclined towards the view that the results of the impugned tests should be treated as testimonial acts for the purpose of invoking the right against self-incrimination. Therefore, it would be prudent to state that the phrase ‘and such other tests’ [which appears in the Explanation to Sections 53, 53-A and 54 of the CrPC] should be read so as to confine its meaning to include only those tests which involve the examination of physical evidence. In pursuance of this line of reasoning, we agree with the appellant’s contention about the applicability of the rule of ‘ejusdem generis’. It should also be noted that the Explanation to Sections 53, 53-A and 54 of the CrPC does not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination among others. This demonstrates that the amendment to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts.

150. However, the submissions touching on the legislative intent require some reflection. While it is most likely that the 169 Parliament was well aware of the impugned techniques at the time of the 2005 amendment to the CrPC and deliberately chose not to enumerate them, we cannot arrive at a conclusive finding on this issue. While it is open to courts to examine the legislative history of a statutory provision, it is not proper for us to try and conclusively ascertain the legislative intent. Such an inquiry is impractical since we do not have access to all the materials which would have been considered by the Parliament. In such a scenario, we must address the respondent’s arguments about the interpretation of statutes with regard to scientific advancements. To address this aspect, we can refer to some extracts from a leading commentary on the interpretation of statutes [See: Justice G.P. Singh, Principles of Statutory Interpretation, 10 th edn. (New Delhi: Wadhwa & Co. Nagpur, 2006) at pp. 239-247]. The learned author has noted, at pp. 240-241:

“Reference to the circumstances existing at the time of the passing of the statute does not, therefore, mean that the language used, at any rate, in a modern statute, should be held to be inapplicable to social, political and economic developments or to scientific inventions not known at the time of the passing of the statute. … The question again is as to what was the intention of the law makers: Did they intend as originalists may argue, that the words of the statute be given the meaning they would have received immediately after the statute’s enactment or did they intend as dynamists may contend that it would be proper for the court to adopt the current meaning of the words? The courts have now generally leaned in favour of dynamic construction. […] But the doctrine has also its limitations. For example it does not mean that the language of an old statute can be construed to embrace something conceptually different.

The guidance on the question as to when an old statute can apply to new state of affairs not in contemplation when the statute was enacted was furnished by Lord Wilberforce in his dissenting speech in Royal College of Nursing of the U.K. v. Dept. of Health and Social Security, (1981) 1 All ER 545, which is now treated as authoritative. (…) Lord Wilberforce said, at pp. 564-565:

In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend on the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, ‘What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.”

(internal citations omitted)

151. The learned author has further taken note of several decisions where general words appearing in statutory provisions have been liberally interpreted to include newer scientific inventions and technologies. [Id. at pp. 244-246] The relevant portion of the commentary quotes Subbarao, J. in Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159, at p. 163:

“It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.”

152. In light of this discussion, there are some clear obstructions to the dynamic interpretation of the amended Explanation to Sections 53, 53-A and 54 of the CrPC. Firstly, the general words in question, i.e. ‘and such other tests’ should ordinarily be read to include tests which are in the same genus as the other forms of medical examination that have been specified. Since all the explicit references are to the examination of bodily substances, we cannot readily construe the said phrase to include the impugned tests because the latter seem to involve testimonial responses. Secondly, the compulsory administration of the impugned techniques is not the only means for ensuring an expeditious investigation. Furthermore, there is also a safe presumption that Parliament was well aware of the existence of the impugned techniques but deliberately chose not to enumerate them. Hence, on an aggregate understanding of the materials produced before us we lean towards the view that the impugned tests, i.e. the narcoanalysis technique, polygraph examination and the BEAP test should not be read into the provisions for ‘medical examination’ under the Code of Criminal Procedure, 1973.

153. However, it must be borne in mind that even though the impugned techniques have not been expressly enumerated in the CrPC, there is no statutory prohibition against them either. It is a clear case of silence in the law. Furthermore, in circumstances where an individual consents to undergo these tests, there is no dilution of Article 20(3). In the past, the meaning and scope of the term ‘investigation’ has been held to include measures that had not been enumerated in statutory provisions. For example, prior to the enactment of an express provision for medical examination in the CrPC, it was observed in Mahipal Maderna v. State of Maharashtra, 1971 Cri L J 1405 (Bom), that an order requiring the production of a hair sample comes within the ordinary understanding of ‘investigation’ (at pp. 1409-1410, Para. 17). We must also take note of the decision in Jamshed v. State of Uttar Pradesh, 1976 Cri L J 1680 (All), wherein it was held that a blood sample can be compulsorily extracted during a ‘medical examination’ conducted under Section 53 of the CrPC. At that time, the collection of blood samples was not expressly contemplated in the said provision. Nevertheless, the Court had ruled that the phrase ‘examination of a person’ should be read liberally so as to include an examination of what is externally visible on a body as well as the examination of an organ inside the body. [See p. 1689, Para 13]

154. We must also refer back to the substance of the decision in Sharda v. Dharampal, (supra.) which upheld the authority of a civil court to order a medical examination in exercise of the inherent powers vested in it by Section 151 of the Code of Civil Procedure, 1908. The same reasoning cannot be readily applied in the criminal context. Despite the absence of a statutory basis, it is tenable to hold that criminal courts should be allowed to direct the impugned tests with the subject’s consent, keeping in mind that there is no statutory prohibition against them either.

155. Another pertinent contention raised by the appellants is that the involvement of medical personnel in the compulsory administration of the impugned tests is violative of their professional ethics. In particular, criticism was directed against the involvement of doctors in the narcoanalysis technique and it was urged that since the content of the druginduced revelations were shared with investigators, this technique breaches the duty of confidentiality which should be ordinarily maintained by medical practitioners. [See generally: Amar Jesani, ‘Willing participants and tolerant profession: Medical ethics and human rights in narco-analysis’, Indian Journal of Medical Ethics, Vol. 16(3), July-Sept. 2008] The counsel have also cited the text of the ‘Principles of Medical Ethics’ adopted by the United Nations General Assembly [GA Res. 37/194, 111 th Plenary Meeting] on December 18, 1982. This document enumerates some ‘Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture, and other cruel, inhuman or degrading treatment of punishment’. Emphasis was placed on Principle 4 which reads:

Principle 4

It is a contravention of medical ethics for health personnel, particularly physicians: To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments;

156. Being a court of law, we do not have the expertise to mould the specifics of professional ethics for the medical profession. Furthermore, the involvement of doctors in the course of investigation in criminal cases has long been recognised as an exception to the physician-patient privilege. In the Indian context, the statutory provisions for directing a medical examination are an example of the same. Fields such as forensic toxicology have become important in criminaljustice systems all over the world and doctors are frequently called on to examine bodily substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses of medical expertise is the fact that testimonial acts such as the results of a psychiatric examination cannot be used as evidence without the subject’s informed consent. Results of impugned tests should be treated as ‘personal testimony’

157. We now return to the operative question of whether the results obtained through polygraph examination and the BEAP test should be treated as testimonial responses. Ordinarily evidence is classified into three broad categories, namely oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2), CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators.

158. We have already stated that the narcoanalysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the ‘right against self-incrimination’. The crucial test laid down in Kathi Kalu Oghad, (supra.) is that of ‘imparting knowledge in respect of relevant fact by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation’ [Id. at p. 30]. The difficulty arises since the majority opinion in that case appears to confine the understanding of ‘personal testimony’ to the conveyance of personal knowledge through oral statements or statements in writing. The results obtained from polygraph examination or a BEAP test are not in the nature of oral or written statements. Instead, inferences are drawn from the measurement of physiological responses recorded during the performance of these tests. It could also be argued that tests such as polygraph examination and the BEAP test do not involve a ‘positive volitional act’ on part of the test subject and hence their results should not be treated as testimony. However, this does not entail that the results of these two tests should be likened to physical evidence and thereby excluded from the protective scope of Article 20(3). We must refer back to the substance of the decision in Kathi Kalu Oghad (supra.) which equated a testimonial act with the imparting of knowledge by a person who has personal knowledge of the facts that are in issue. It has been recognised in other decisions that such personal knowledge about relevant facts can also be communicated through means other than oral or written statements. For example in M.P. Sharma’s case (supra.), it was noted that “…evidence can be furnished through the lips or by production of a thing or of a document or in other modes” [Id. at p. 1087]. Furthermore, common sense dictates that certain communicative gestures such as pointing or nodding can also convey personal knowledge about a relevant fact, without offering a verbal response. It is quite foreseeable that such a communicative gesture may by itself expose a person to ‘criminal charges or penalties’ or furnish a link in the chain of evidence needed for prosecution.

159. We must also highlight that there is nothing to show that the learned judges in Kathi Kalu Oghad (supra.) had contemplated the impugned techniques while discussing the scope of the phrase ‘to be a witness’ for the purpose of Article 20(3). At that time, the transmission of knowledge through means other than speech or writing was not something that could have been easily conceived of. Techniques such as polygraph examination were fairly obscure and were the subject of experimentation in some Western nations while the BEAP technique was developed several years later. Just as the interpretation of statutes has to be often re-examined in light of scientific advancements, we should also be willing to reexamine judicial observations with a progressive lens. An explicit reference to the Lie-Detector tests was of course made by the U.S. Supreme Court in the Schmerber decision, 384 US 757 (1966), wherein Brennan, J. had observed, at p. 764: “To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.”

160. 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. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge of the test subject’s thoughts and memories, either in the actual or constructive sense. Therefore, even if a highly-strained analogy were to be made between the results obtained from the impugned tests and the production of documents, the weight of precedents leans towards restrictions on the extraction of ‘personal knowledge’ through such means.

161. During the administration of a polygraph test or a BEAP test, the subject makes a mental effort which is accompanied by certain physiological responses. The measurement of these responses then becomes the basis of the transmission of knowledge to the investigators. This knowledge may aid an ongoing investigation or lead to the discovery of fresh evidence which could then be used to prosecute the test subject. In any case, 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.

162. Some academics have also argued that the results obtained from tests such as polygraph examination are ‘testimonial’ acts that should come within the prohibition of the right against self-incrimination. For instance, Michael S. Pardo (2008) has observed [Cited from: Michael S. Pardo, ‘SelfIncrimination and the Epistemology of Testimony’, 30 Cardozo Law Review 1023-1046 (December 2008) at p. 1046]:

“The results of polygraphs and other lie-detection tests, whether they call for a voluntary response or not, are testimonial because the tests are just inductive evidence of the defendant’s epistemic state. They are evidence that purports to tell us either: (1) that we can or cannot rely on the assertions made by the defendant and for which he has represented himself to be an authority, or (2) what propositions the defendant would assume authority for and would invite reliance upon, were he to testify truthfully.”

163. Ronald J. Allen and M. Kristin Mace (2004) have offered a theory that the right against self-incrimination is meant to protect an individual in a situation where the State places reliance on the ‘substantive results of cognition’. The following definition of ‘cognition’ has been articulated to explain this position [Cited from: Ronald J. Allen and M. Kristin Mace, ‘The Self-Incrimination Clause explained and its future predicted’, 94 Journal of Criminal Law and Criminology 243-293 (2004), Fn. 16 at p. 247]:

“… ‘Cognition’ is used herein to refer to these intellectual processes that allow one to gain and make use of substantive knowledge and to compare one’s ‘inner world’ (previous knowledge) with the ‘outside world’ (stimuli such as questions from an interrogator). Excluded are simple psychological responses to stimuli such as fear, warmness, and hunger: the mental processes that produce muscular movements; and one’s will or faculty for choice. …”

(internal citation omitted)

164. The above-mentioned authors have taken a hypothetical example where the inferences drawn from an involuntary polygraph test that did not require verbal answers, led to the discovery of incriminating evidence. They have argued that if the scope of the Fifth Amendment extends to protecting the subject in respect of ‘substantive results of cognition’, then reliance on polygraph test results would violate the said right. A similar conclusion has also been made by the National Human Rights Commission, as evident from the following extract in the Guidelines Relating to Administration of Polygraph Test [Lie Detector Test] on an Accused (2000):

“The extent and nature of the ‘self-incrimination’ is wide enough to cover the kinds of statements that were sought to be induced. In M.P. Sharma, AIR 1954 SC 300, the Supreme Court included within the protection of the selfincrimination rule all positive volitional acts which furnish evidence. This by itself would have made all or any interrogation impossible. The test – as stated in Kathi Kalu Oghad (AIR 1961 SC 1808) – retains the requirement of personal volition and states that ‘selfincrimination’ must mean conveying information based upon the personal knowledge of the person giving information. By either test, the information sought to be elicited in a Lie Detector Test is information in the personal knowledge of the accused.”

165. In light of the preceding discussion, we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as ‘personal testimony’, since they are a means for ‘imparting personal knowledge about relevant facts’. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of ‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).

II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on ‘personal liberty’ as understood in the context of Article 21 of the Constitution?

166. The preceding discussion does not conclusively address the contentions before us. Article 20(3) protects a person who is ‘formally accused’ of having committed an offence or even a suspect or a witness who is questioned during an investigation in a criminal case. However, Article 20(3) is not applicable when a person gives his/her informed consent to undergo any of the impugned tests. It has also been described earlier that the ‘right against self-incrimination’ does not protect persons who may be compelled to undergo the tests in the course of administrative proceedings or any other proceedings which may result in civil liability. It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others.

167. In order to account for these possibilities, we must examine whether the involuntary administration of any of these tests is compatible with the constitutional guarantee of ‘substantive due process’. The standard of ‘substantive due process’ is of course the threshold for examining the validity of all categories of governmental action that tend to infringe upon the idea of ‘personal liberty. We will proceed with this inquiry with regard to the various dimensions of ‘personal liberty’ as understood in the context of Article 21 of the Constitution, which lays down that:

‘No person shall be deprived of his life and liberty except according to procedure established by law’.

168. Since administering the impugned tests entails the physical confinement of the subject, it is important to consider whether they can be read into an existing statutory provision. This is so because any form of restraint on personal liberty, howsoever slight it may be, must have a basis in law. However, we have already explained how it would not be prudent to read the explanation to Sections 53, 53-A and 54 of the CrPC in an expansive manner so as to include the impugned techniques. The second line of inquiry is whether the involuntary administration of these tests offends certain rights that have been read into Article 21 by way of judicial precedents. The contentions before us have touched on aspects such as the ‘right to privacy’ and the ‘right against cruel, inhuman and degrading treatment’. The third line of inquiry is structured around the right to fair trial which is an essential component of ‘personal liberty’.

169. There are several ways in which the involuntary administration of either of the impugned tests could be viewed as a restraint on ‘personal liberty’. The most obvious indicator of restraint is the use of physical force to ensure that an unwilling person is confined to the premises where the tests are to be conducted. Furthermore, the drug-induced revelations or the substantive inferences drawn from the measurement of the subject’s physiological responses can be described as an intrusion into the subject’s mental privacy. It is also quite conceivable that a person could make an incriminating statement on being threatened with the prospective administration of any of these techniques. Conversely, a person who has been forcibly subjected to these techniques could be confronted with the results in a subsequent interrogation, thereby eliciting incriminating statements.

170. We must also account for circumstances where a person who undergoes the said tests is subsequently exposed to harmful consequences, though not of a penal nature. We have already expressed our concern with situations where the contents of the test results could prompt investigators to engage in custodial abuse, surveillance or undue harassment. We have also been apprised of some instances where the investigation agencies have leaked the video-recordings of narcoanalysis interviews to media organisations. This is an especially worrisome practice since the public distribution of these recordings can expose the subject to undue social stigma and specific risks. It may even encourage acts of vigilantism in addition to a ‘trial by media’.

171. We must remember that the law does provide for some
restrictions on ‘personal liberty’ in the routine exercise of
police powers. For instance, the CrPC incorporates an
elaborate scheme prescribing the powers of arrest, detention,
interrogation, search and seizure. A fundamental premise of
the criminal justice system is that the police and the judiciary
are empowered to exercise a reasonable degree of coercive
powers. Hence, the provision that enables Courts to order a
person who is under arrest to undergo a medical examination
also provides for the use of ‘force as is reasonably necessary’
for this purpose. It is evident that the notion of ‘personal
liberty’ does not grant rights in the absolute sense and the
validity of restrictions placed on the same needs to be
evaluated on the basis of criterion such as ‘fairness, nonarbitrariness,
and reasonableness’.

172. Both the appellants and the respondents have cited cases involving the compelled extraction of blood samples in a variety of settings. An analogy has been drawn between the pin-prick of a needle for extracting a blood sample and the intravenous administration of drugs such as sodium pentothal. Even though the extracted sample of blood is purely physical evidence as opposed to a narcoanalysis interview where the test subject offers testimonial responses, the comparison can be sustained to examine whether puncturing the skin with a needle or an injection is an unreasonable restraint on ‘personal liberty’.

173. The decision given by the U.S. Supreme Court in Rochin v. California, 342 US 165 (1952), recognised the threshold of ‘conduct that shocks the conscience’ for deciding when the extraction of physical evidence offends the guarantee of ‘due process of law’. With regard to the facts in that case, Felix Frankfurter, J. had decided that the extraction of evidence had indeed violated the same, Id. at pp. 172-173:

“… we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents – this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.

… Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.”

174. Coming to the cases cited before us, in State of Maharashtra v. Sheshappa Dudhappa Tambade, AIR 1964 Bom 253, the Bombay High Court had upheld the constitutionality of Section 129-A of the Bombay Prohibition Act, 1949. This provision empowered prohibition officers and police personnel to produce a person for ‘medical examination’, which could include the collection of a blood sample. The said provision authorised the use of ‘all means reasonably necessary to secure the production of such person or the examination of his body or the collection of blood necessary for the test’. Evidently, the intent behind this provision was to enforce the policy of prohibition on the consumption of intoxicating liquors. Among other questions, the Court also ruled that this provision did not violate Article 21. Reliance was placed on a decision of the U.S. Supreme Court in Paul H. Breithaupt v. Morris Abram, 352 US 432 (1957), wherein the contentious issue was whether a conviction on the basis of an involuntary blood-test violated the guarantee of ‘due process of law’. In deciding that the involuntary extraction of the blood sample did not violate the guarantee of ‘Due Process of Law’, Clark, J. observed, at pp. 435-437:

“… there is nothing ‘brutal’ or ‘offensive’ in the taking of a blood sample when done as in this case, under the protective eye of a physician. To be sure, the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right and certainly the test administered here would not be considered offensive by even the most delicate. Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of ‘decency and fairness’ that has been woven by common experience into the fabric of acceptable conduct. It is on this bedrock that this Court has established the concept of due process. The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors. Likewise, we note that a majority of our States have either enacted statutes in some form authorizing tests of this nature or permit findings so obtained to be admitted in evidence. We therefore conclude that a blood test taken by a skilled technician is not such ‘conduct that shocks the conscience’ [Rochin v. California, 342 US 165, 172 (1952)], nor such a method of obtaining evidence that it offends a ‘sense of justice’ [Brown v. Mississippi, 297 US 278, 285 (1936)]…”

175. In Jamshed v. State of Uttar Pradesh, 1976 Cri L J 1680 (All), the following observations were made in respect of a compulsory extraction of blood samples during a medical examination (in Para 12):

“We are therefore of the view that there is nothing repulsive or shocking to the conscience in taking the blood of the appellant in the instant case in order to establish his guilt. So far as the question of causing hurt is concerned, even causing of some pain may technically amount to hurt as defined by Section 319 of the Indian Penal Code. But pain might be caused even if the accused is subjected to a forcible medical examination. For example, in cases of rape it may be necessary to examine the private parts of the culprit. If a culprit is suspected to have swallowed some stolen article, an emetic may be used and X-ray examination may also be necessary. For such purposes the law permits the use of necessary force. It cannot, therefore, be said that merely because some pain is caused, such a procedure should not be permitted.”

A similar view was taken in Ananth Kumar Naik v. State of Andhra Pradesh, 1977 Cri L J 1797 (A.P.), where it was held (in Para. 20):

“ … In fact S. 53 provides that while making such an examination such force as is reasonably necessary for that purpose may be used. Therefore, whatever discomfort that may be caused when samples of blood and semen are taken from an arrested person, it is justified by the provisions of Sections 53 and 54, CrPC.”

We can also refer to the following observations in Anil Anantrao Lokhande v. State of Maharashtra, 1981 Cri L J 125 (Bom), (in Para. 30):

“ … Once it is held that Section 53 of the Code of Criminal Procedure does confer a right upon the investigating machinery to get the arrested persons medically examined by the medical practitioner and the expression used in Section 53 includes in its import the taking of sample of the blood for analysis, then obviously the said provision is not violative of the guarantee incorporated in Article 21 of the Constitution of India.”

176. This line of precedents shows that the compelled extraction of blood samples in the course of a medical examination does not amount to ‘conduct that shocks the conscience’. There is also an endorsement of the view that the use of ‘force as may be reasonably necessary’ is mandated by law and hence it meets the threshold of ‘procedure established by law’. In this light, we must restate two crucial considerations that are relevant for the case before us. Firstly, the restrictions placed on ‘personal liberty’ in the course of administering the impugned techniques are not limited to physical confinement and the extraction of bodily substances. All the three techniques in question also involve testimonial responses. Secondly, most of the above-mentioned cases were decided in accordance with the threshold of ‘procedure established by law’ for restraining ‘personal liberty’. However, in this case we must use a broader standard of reasonableness to evaluate the validity of the techniques in question. This wider inquiry calls for deciding whether they are compatible with the various judicially-recognised dimensions of ‘personal liberty’ such as the right to privacy, the right against cruel, inhuman or degrading treatment and the right to fair trial.

Applicability of the ‘right to privacy’

177. In Sharda v. Dharampal, (supra.) this Court had upheld the power of a civil court to order the medical examination of a party to a divorce proceeding. In that case, the medical examination was considered necessary for ascertaining the mental condition of one of the parties and it was held that a civil court could direct the same in the exercise of its inherent powers, despite the absence of an enabling provision. In arriving at this decision it was also considered whether subjecting a person to a medical examination would violate Article 21. We must highlight the fact that a medical test for ascertaining the mental condition of a person is most likely to be in the nature of a psychiatric evaluation which usually includes testimonial responses. Accordingly, a significant part of that judgment dealt with the ‘right to privacy’. It would be appropriate to structure the present discussion around extracts from that opinion.

178. In M.P. Sharma (supra.), it had been noted that the Indian Constitution did not explicitly include a ‘right to privacy’ in a manner akin to the Fourth Amendment of the U.S. Constitution. In that case, this distinction was one of the reasons for upholding the validity of search warrants issued for documents required to investigate charges of misappropriation and embezzlement. Similar issues were discussed in Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295, where the Court considered the validity of police-regulations that authorised police personnel to maintain lists of ‘history-sheeters’ in addition to conducting surveillance activities, domiciliary visits and periodic inquiries about such persons. The intention was to monitor persons suspected or charged with offences in the past, with the aim of preventing criminal acts in the future. At the time, there was no statutory basis for these regulations and they had been framed in the exercise of administrative functions. The majority opinion (Ayyangar, J.) held that these regulations did not violate ‘personal liberty’, except for those which permitted domiciliary visits. The other restraints such as surveillance activities and periodic inquiries about ‘history-sheeters’ were justified by observing, at Para. 20:

“… the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

179. Ayyangar, J. distinguished between surveillance activities conducted in the routine exercise of police powers and the specific act of unauthorised intrusion into a person’s home which violated ‘personal liberty’. However, the minority opinion (Subba Rao, J.) in Kharak Singh took a different approach by recognising the interrelationship between Article 21 and 19, thereby requiring the State to demonstrate the ‘reasonableness’ of placing such restrictions on ‘personal liberty’ [This approach was later endorsed by Bhagwati, J. in Maneka Gandhi v. Union of India, AIR 1978 SC 597, see p. 622]. Subba Rao, J. held that the right to privacy ‘is an essential ingredient of personal liberty’ and that the right to ‘personal liberty is ‘a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.’ [AIR 1963 SC 1295, at p. 1306]

180. In Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148, the Supreme Court approved of some police-regulations that provided for surveillance activities, but this time the decision pointed out a clear statutory basis for these regulations. However, it was also ruled that the ‘right to privacy’ was not an absolute right. It was held, at Para. 28:

“The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.”

… Assuming that the fundamental right explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.”

(at p. 157, Para. 31)

181. Following the judicial expansion of the idea of ‘personal liberty’, the status of the ‘right to privacy’ as a component of Article 21 has been recognised and re-inforced. In R. Raj Gopal v. State of Tamil Nadu, (1994) 6 SCC 632, this Court dealt with a fact-situation where a convict intended to publish his autobiography which described the involvement of some politicians and businessmen in illegal activities. Since the publication of this work was challenged on grounds such as the invasion of privacy among others, the Court ruled on the said issue. It was held that the right to privacy could be described as the ‘right to be let alone and a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among others. No one can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical’. However, it was also ruled that exceptions may be made if a person voluntarily thrusts himself into a controversy or any of these matters becomes part of public records or relates to an action of a public official concerning the discharge of his official duties.

182. In People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568, it was held that the unauthorised tapping of telephones by police personnel violated the ‘right to privacy’ as contemplated under Article 21. However, it was not stated that telephone-tapping by the police was absolutely prohibited, presumably because the same may be necessary in some circumstances to prevent criminal acts and in the course of investigation. Hence, such intrusive practices are permissible if done under a proper legislative mandate that regulates their use. This intended balance between an individual’s ‘right to privacy’ and ‘compelling public interest’ has frequently occupied judicial attention. Such a compelling public interest can be identified with the need to prevent crimes and expedite investigations or to protect public health or morality.

183. For example, in X v. Hospital Z, (1998) 8 SCC 296, it was held that a person could not invoke his ‘right to privacy’ to prevent a doctor from disclosing his HIV-positive status to others. It was ruled that in respect of HIV-positive persons, the duty of confidentiality between the doctor and patient could be compromised in order to protect the health of other individuals. With respect to the facts in that case, Saghir Ahmad, J. held, at Para. 26-28:

“… When a patient was found to be HIV (+), its disclosure by the Doctor could not be violative of either the rule of confidentiality or the patient’s right of privacy as the lady with whom the patient was likely to be married was saved in time by such disclosure, or else, she too would have been infected with a dreadful disease if marriage had taken place and been consummated.”

184. However, a three judge bench partly overruled this decision in a review petition. In X v. Hospital Z, (2003) 1 SCC 500, it was held that if an HIV-positive person contracted marriage with a willing partner, then the same would not constitute the offences defined by Sections 269 and 270 of the Indian Penal Code. [Section 269 of the IPC defines the offence of a ‘Negligent act likely to spread infection of disease dangerous to life’ and Section 270 contemplates a ‘Malignant act likely to spread infection of disease dangerous to life’.] A similar question was addressed by the Andhra Pradesh High Court in M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd., AIR 2001 AP 502, at pp. 513- 514:

“There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and duty of the State to identify HIV-infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify HIV-positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India. …”

185. The discussion on the ‘right to privacy’ in Sharda v. Dharampal, (supra.) also cited a decision of the Court of Appeal (in the U.K.) in R (on the application of S) v. Chief Constable of South Yorkshire, (2003) 1 All ER 148 (CA). The contentious issues arose in respect of the retention of fingerprints and DNA samples taken from persons who had been suspected of having committed offences in the past but were not convicted for them. It was argued that this policy violated Articles 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms, 1950 [Hereinafter ‘EctHR]. Article 8 deals with the ‘Right to respect for private and family life’ while Article 14 lays down the scope of the ‘Prohibition Against Discrimination’. For the present discussion, it will be useful to examine the language of Article 8 of the EctHR:-

Article 8 – Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

186. In that case, a distinction was drawn between the ‘taking’, ‘retention’ and ‘use’ of fingerprints and DNA samples. While the ‘taking’ of such samples from individual suspects could be described as a reasonable measure in the course of routine police functions, the controversy arose with respect to the ‘retention’ of samples taken from individuals who had been suspected of having committing offences in the past but had not been convicted for them. The statutory basis for the retention of physical samples taken from suspects was Section 64(1A) of the Police and Criminal Evidence Act, 1984. This provision also laid down that these samples could only be used for purposes related to the ‘prevention or detection of crime, the investigation of an offence or the conduct of a prosecution’. This section had been amended to alter the older position which provided that physical samples taken from suspects were meant to be destroyed once the suspect was cleared of the charges or acquitted. As per the older position, it was only the physical samples taken from convicted persons which could be retained by the police authorities. It was contended that the amended provision was incompatible with Articles 8 and 14 of the EctHR and hence the relief sought was that the fingerprints and DNA samples of the concerned parties should be destroyed.

187. In response to these contentions, the majority (Lord Woolf, C.J.) held that although the retention of such material interfered with the Art. 8(1) rights of the individuals (‘right to respect for private and family life’) from whom it had been taken, that interference was justified by Art. 8(2). It was further reasoned that the purpose of the impugned amendment, the language of which was very similar to Art. 8(2), was obvious and lawful. Nor were the adverse consequences to the individual disproportionate to the benefit to the public. It was held, at Para. 17:

“So far as the prevention and detection of crime is concerned, it is obvious the larger the databank of fingerprints and DNA samples available to the police, the greater the value of the databank will be in preventing crime and detecting those responsible for crime. There can be no doubt that if every member of the public was required to provide fingerprints and a DNA sample this would make a dramatic contribution to the prevention and detection of crime. To take but one example, the great majority of rapists who are not known already to their victim would be able to be identified. However, the 1984 Act does not contain blanket provisions either as to the taking, the retention, or the use of fingerprints or samples; Parliament has decided upon a balanced approach.”

Lord Woolf, C.J. also referred to the following observations made by Lord Steyn in an earlier decision of the House of Lords, which was reported as Attorney General’s Reference (No. 3 of 1999), (2001) 1 All ER 577, at p. 584:

“… It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.”

On the question of whether the retention of material samples collected from suspects who had not been convicted was violative of the ‘Prohibition against Discrimination’ under Art. 14 of the EctHR, it was observed, (2003) 1 All ER 148 (CA), at p. 162:

“In the present circumstances when an offence is being investigated or is the subject of a charge it is accepted that fingerprints and samples may be taken. Where they have not been taken before any question of the retention arises, they have to be taken so there would be the additional interference with their rights which the taking involves. As no harmful consequences will flow from the retention unless the fingerprints or sample match those of someone alleged to be responsible for an offence, the different treatment is fully justified.”

188. In the present case, written submissions made on behalf of the respondents have tried to liken the compulsory administration of the impugned techniques with the DNA profiling technique. In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53-A and 54 of the CrPC. It must also be clarified that a ‘DNA profile’ is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law-enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts. It may also be recalled that the as per the majority decision in Kathi Kalu Oghad, (supra.) the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20(3). Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain.

189. The judgment delivered in Sharda v. Dharampal, (supra.) had surveyed the above-mentioned decisions to conclude that a person’s right to privacy could be justifiably curtailed if it was done in light of competing interests. Reference was also made to some statutes that permitted the compulsory administration of medical tests. For instance, it was observed, at Para. 61-62:

“Having outlined the law relating to privacy in India, it is relevant in this context to notice that certain laws have been enacted by the Indian Parliament where the accused may be subjected to certain medical or other tests.

By way of example, we may refer to Sections 185, 202, 203 and 204 of the Motor Vehicles Act, Sections 53 and 54 of the Code of Criminal Procedure and Section 3 of the Identification of Prisoners Act, 1920. Reference in this connection may also be made to Sections 269 and 270 of the Indian Penal Code. Constitutionality of these laws, if challenge is thrown, may be upheld.”

190. However, it is important for us to distinguish between the considerations that occupied this Court’s attention in Sharda v. Dharampal, (supra.) and the ones that we are facing in the present case. It is self-evident that the decision did not to dwell on the distinction between medical tests whose results are based on testimonial responses and those tests whose results are based on the analysis of physical characteristics and bodily substances. It can be safely stated that the Court did not touch on the distinction between testimonial acts and physical evidence, simply because Article 20(3) is not applicable to a proceeding of a civil nature.

191. Moreover, a distinction must be made between the character of restraints placed on the right to privacy. 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.

192. 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.

193. 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’. However, this determination does not account for circumstances where a person could be subjected to any of the impugned tests but not exposed to criminal charges and the possibility of conviction. In such cases, he/she could still face adverse consequences such as custodial abuse, surveillance, undue harassment and social stigma among others. In order to address such circumstances, it is important to examine some other dimensions of Article 21.

Safeguarding the ‘right against cruel, inhuman or degrading treatment’

194. We will now examine whether the act of forcibly subjecting a person to any of the impugned techniques constitutes ‘cruel, inhuman or degrading treatment’, when considered by itself. This inquiry will account for the permissibility of these techniques in all settings, including those where a person may not be subsequently prosecuted but could face adverse consequences of a non-penal nature. The appellants have contended that the use of the impugned techniques amounts to ‘cruel, inhuman or degrading treatment’. Even though the Indian Constitution does not explicitly enumerate a protection against ‘cruel, inhuman or degrading punishment or treatment’ in a manner akin to the Eighth Amendment of the U.S. Constitution, this Court has discussed this aspect in several cases. For example, in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, V.R. Krishna Iyer, J. observed at pp. 518-519:

“True, our Constitution has no ‘due process’ clause or the VIII Amendment; but, in this branch of law, after Cooper [(1970) 1 SCC 248] and Maneka Gandhi, [(1978) 1 SCC 248] the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Article 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner’s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanize and civilize the lifestyle within the carcers. The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether. ….”

195. In the above-mentioned case, this Court had disapproved of practices such as solitary-confinement and the use of barfetters in prisons. It was held that prisoners were also entitled to ‘personal liberty’ though in a limited sense, and hence judges could enquire into the reasonableness of their treatment by prison-authorities. Even though ‘the right against cruel, inhuman and degrading punishment’ cannot be asserted in an absolute sense, there is a sufficient basis to show that Article 21 can be invoked to protect the ‘bodily integrity and dignity’ of persons who are in custodial environments. This protection extends not only to prisoners who are convicts and under-trials, but also to those persons who may be arrested or detained in the course of investigations in criminal cases. Judgments such as D.K. Basu v. State of West Bengal, AIR 1997 SC 610, have stressed upon the importance of preventing the ‘cruel, inhuman or degrading treatment’ of any person who is taken into custody. In respect of the present case, any person who is forcibly subjected to the impugned tests in the environs of a forensic laboratory or a hospital would be effectively in a custodial environment for the same. The presumption of the person being in a custodial environment will apply irrespective of whether he/she has been formally accused or is a suspect or a witness. Even if there is no overbearing police presence, the fact of physical confinement and the involuntary administration of the tests is sufficient to constitute a custodial environment for the purpose of attracting Article 20(3) and Article 21. It was necessary to clarify this aspect because we are aware of certain instances where persons are questioned in the course of investigations without being brought on the record as witnesses. Such omissions on part of investigating agencies should not be allowed to become a ground for denying the protections that are available to a person in custody.

196. The appellants have also drawn our attention to some international conventions and declarations. For instance in the Universal Declaration of Human Rights [GA Res. 217 A (III) of December 10 1948], Article 5 states that:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Article 7 of the International Covenant on Civil and Political Rights (ICCPR) [GA Res. 2200A (XXI), entered into force March 23, 1976] also touches on the same aspect. It reads as follows:

“…No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

Special emphasis was placed on the definitions of ‘torture’ as well as ‘cruel, inhuman or degrading treatment or punishment’ in Articles 1 and 16 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

Article 1

1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Article 10, 11 , 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.

197. We were also alerted to the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment [GA Res. 43/173, 76th plenary meeting, 9 December 1988] which have been adopted by the United Nations General Assembly. Principles 1, 6 and 21 hold relevance for us:

Principle 1

All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.

Principle 6

No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment.

The term ‘cruel, inhuman or degrading treatment or punishment’ should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.

Principle 21

1. It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person.

2. No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment. 198. It was shown that protections against torture and ‘cruel, inhuman or degrading treatment or punishment’ are accorded to persons who are arrested or detained in the course of armed conflicts between nations. In the Geneva Convention relative to the Treatment of Prisoners of War (entry into force 21 October 1950) the relevant extract reads:

Article 17

… No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. …

199. Having surveyed these materials, it is necessary to clarify that we are not absolutely bound by the contents of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) [Hereinafter ‘Torture Convention’] This is so because even though India is a signatory to this Convention, it has not been ratified by Parliament in the manner provided under Article 253 of the Constitution and neither do we have a national legislation which has provisions analogous to those of the Torture Convention. However, these materials do hold significant persuasive value since they represent an evolving international consensus on the nature and specific contents of human rights norms.

200. The definition of torture indicates that the threshold for the same is the intentional infliction of physical or mental pain and suffering, by or at the instance of a public official for the purpose of extracting information or confessions. ‘Cruel, Inhuman or Degrading Treatment’ has been defined as conduct that does not amount to torture but is wide enough to cover all kinds of abuses. Hence, proving the occurrence of ‘cruel, inhuman or degrading treatment’ would require a lower threshold than that of torture. In addition to highlighting these definitions, the counsel for the appellants have submitted that causing physical pain by injecting a drug can amount to ‘Injury’ as defined by Section 44 of the IPC or ‘Hurt’ as defined in Section 319 of the same Code.

201. In response, the counsel for the respondents have drawn our attention to literature which suggests that in the case of the impugned techniques, the intention on part of the investigators is to extract information and not to inflict any pain or suffering. Furthermore, it has been contended that the actual administration of either the narcoanalysis technique, polygraph examination or the BEAP test does not involve a condemnable degree of ‘physical pain or suffering’. Even though some physical force may be used or threats may be given to compel a person to undergo the tests, it was argued that the administration of these tests ordinarily does not result in physical injuries. [See: Linda M. Keller, ‘Is Truth Serum Torture?’ 20 American University International Law Review 521-612 (2005)] However, it is quite conceivable that the administration of any of these techniques could involve the infliction of ‘mental pain or suffering’ and the contents of their results could expose the subject to physical abuse. When a person undergoes a narcoanalysis test, he/she is in a halfconscious state and subsequently does not remember the revelations made in a drug-induced state. In the case of polygraph examination and the BEAP test, the test subject remains fully conscious during the tests but does not immediately know the nature and implications of the results derived from the same. However, when he/she later learns about the contents of the revelations, they may prove to be incriminatory or be in the nature of testimony that can be used to prosecute other individuals. We have also highlighted the likelihood of a person making incriminatory statements when he/she is subsequently confronted with the test results. The realisation of such consequences can indeed cause ‘mental pain or suffering’ for the person who was subjected to these tests. The test results could also support the theories or suspicions of the investigators in a particular case. These results could very well confirm suspicions about a person’s involvement in a criminal act. For a person in custody, such confirmations could lead to specifically targeted behaviour such as physical abuse. In this regard, we have repeatedly expressed our concern with situations where the test results could trigger undesirable behaviour.

202. We must also contemplate situations where a threat given by the investigators to conduct any of the impugned tests could prompt a person to make incriminatory statements or to undergo some mental trauma. Especially in cases of individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice, the mere apprehension of undergoing scientific tests that supposedly reveal the truth could push them to make confessional statements. Hence, the act of threatening to administer the impugned tests could also elicit testimony. It is also quite conceivable that an individual may give his/her consent to undergo the said tests on account of threats, false promises or deception by the investigators. For example, a person may be convinced to give his/her consent after being promised that this would lead to an early release from custody or dropping of charges. However, after the administration of the tests the investigators may renege on such promises. In such a case the relevant inquiry is not confined to the apparent voluntariness of the act of undergoing the tests, but also includes an examination of the totality of circumstances.

203. Such a possibility had been outlined by the National Human Rights Commission which had published ‘Guidelines relating to administration of Polygraph test (Lie Detector test) on an accused (2000)’. The relevant extract has been reproduced below:

“… The lie detector test is much too invasive to admit of the argument that the authority for Lie Detector tests comes from the general power to interrogate and answer questions or make statements. (Ss. 160-167 CrPC) However, in India we must proceed on the assumption of constitutional invasiveness and evidentiary impermissiveness to take the view that such holding of tests is a prerogative of the individual, not an empowerment of the police. In as much as this invasive test is not authorised by law, it must perforce be regarded as illegal and unconstitutional unless it is voluntarily undertaken under non-coercive circumstances. If the police action of conducting a lie detector test is not authorised by law and impermissible, the only basis on which it could be justified is, if it is volunteered. There is a distinction between: (a) volunteering, and (b) being asked to volunteer. This distinction is of some significance in the light of the statutory and constitutional protections available to any person. There is a vast difference between a person saying, ‘I wish to take a lie detector test because I wish to clear my name’, and when a person is told by the police, ‘If you want to clear your name, take a lie detector test’. A still worse situation would be where the police say, ‘Take a lie detector test, and we will let you go’. In the first example, the person voluntarily wants to take the test. It would still have to be examined whether such volunteering was under coercive circumstances or not. In the second and third examples, the police implicitly (in the second example) and explicitly (in the third example) link up the taking of the lie detector test to allowing the accused to go free.”

204. We can also contemplate a possibility that even when an individual freely consents to undergo the tests in question, the resulting testimony cannot be readily characterised as voluntary in nature. This is attributable to the differences between the manner in which the impugned tests are conducted and an ordinary interrogation. In an ordinary interrogation, the investigator asks questions one by one and the subject has the choice of remaining silent or answering each of these questions. This choice is repeatedly exercised after each question is asked and the subject decides the nature and content of each testimonial response. On account of the continuous exercise of such a choice, the subject’s verbal responses can be described as voluntary in nature. However, in the context of the impugned techniques the test subject does not exercise such a choice in a continuous manner. After the initial consent is given, the subject has no conscious control over the subsequent responses given during the test. In case of the narcoanalysis technique, the subject speaks in a drug-induced state and is clearly not aware of his/her own responses at the time. In the context of polygraph examination and the BEAP tests, the subject cannot anticipate the contents of the ‘relevant questions’ that will be asked or the ‘probes’ that will be shown. Furthermore, the results are derived from the measurement of physiological responses and hence the subject cannot exercise an effective choice between remaining silent and imparting personal knowledge. In light of these facts, it was contended that a presumption cannot be made about the voluntariness of the test results even if the subject had given prior consent. In this respect, we can reemphasize Principle 6 and 21 of the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment (1988). The explanation to Principle 6 provides that:

“The term ‘cruel, inhuman or degrading treatment or punishment’ should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.”

Furthermore, Principle 21(2) lays down that:

“No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment.”

205. It is undeniable that during a narcoanalysis interview, the test subject does lose ‘awareness of place and passing of time’. It is also quite evident that all the three impugned techniques can be described as methods of interrogation which impair the test subject’s ‘capacity of decision or judgment’. Going by the language of these principles, we hold that the compulsory administration of the impugned techniques constitutes ‘cruel, inhuman or degrading treatment’ in the context of Article 21. It must be remembered that the law disapproves of involuntary testimony, irrespective of the nature and degree of coercion, threats, fraud or inducement used to elicit the same. The popular perceptions of terms such as ‘torture’ and ‘cruel, inhuman or degrading treatment’ are associated with gory images of blood-letting and broken bones. However, we must recognise that a forcible intrusion into a person’s mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences. [A similar conclusion has been made in the following paper: Marcy Strauss, ‘Criminal Defence in the Age of Terrorism – Torture’, 48 New York Law School Law Review 201-274 (2003/2004)]

206. It would also be wrong to sustain a comparison between the forensic uses of these techniques and the practice of medicine. It has been suggested that patients undergo a certain degree of ‘physical or mental pain and suffering’ on account of medical interventions such as surgeries and drugtreatments. However, such interventions are acceptable since the objective is to ultimately cure or prevent a disease or disorder. So it is argued that if the infliction of some ‘pain and suffering’ is permitted in the medical field, it should also be tolerated for the purpose of expediting investigations in criminal cases. This is the point where our constitutional values step in. A society governed by rules and liberal values makes a rational distinction between the various circumstances where individuals face pain and suffering. While the infliction of a certain degree of pain and suffering is mandated by law in the form of punishments for various offences, the same cannot be extended to all those who are questioned during the course of an investigation. Allowing the same would vest unlimited discretion and lead to the disproportionate exercise of police powers.

Incompatibility with the ‘Right to fair trial’

207. The respondents’ position is that the compulsory administration of the impugned techniques should be permitted at least for investigative purposes, and if the test results lead to the discovery of fresh evidence, then these fruits should be admissible. We have already explained in light of the conjunctive reading of Article 20(3) of the Constitution and Section 27 of the Evidence Act, that if the fact of compulsion is proved, the test results will not be admissible as evidence. However, for the sake of argument, if we were to agree with the respondents and allow investigators to compel individuals to undergo these tests, it would also affect some of the key components of the ‘right to fair trial’.

208. The decision of this Court in D.K. Basu v. State of West Bengal, AIR 1997 SC 610, had stressed upon the entitlement of a person in custody to consult a lawyer. Access to legal advice is an essential safeguard so that an individual can be adequately apprised of his constitutional and statutory rights. This is also a measure which checks custodial abuses. However, the involuntary administration of any of the impugned tests can lead to a situation where such legal advice becomes ineffective. For instance even if a person receives the best of legal advice before undergoing any of these tests, it cannot prevent the extraction of information which may prove to be inculpatory by itself or lead to the subsequent discovery of incriminating materials. Since the subject has no conscious control over the drug-induced revelations or substantive inferences, the objective of providing access to legal advice are frustrated.

209. Since the subject is not immediately aware of the contents of the drug-induced revelations or substantive inferences, it also conceivable that the investigators may chose not to communicate them to the subject even after completing the tests. In fact statements may be recorded or charges framed without the knowledge of the test subject. At the stage of trial, the prosecution is obliged to supply copies of all incriminating materials to the defendant but reliance on the impugned tests could curtail the opportunity of presenting a meaningful and wholesome defence. If the contents of the revelations or inferences are communicated much later to the defendant, there may not be sufficient time to prepare an adequate defence.

210. Earlier in this judgment, we had surveyed some foreign judicial precedents dealing with each of the tests in question. A common concern expressed with regard to each of these techniques was the questionable reliability of the results generated by them. In respect of the narcoanalysis technique, it was observed that there is no guarantee that the druginduced revelations will be truthful. Furthermore, empirical studies have shown that during the hypnotic stage, individuals are prone to suggestibility and there is a good chance that false results could lead to a finding of guilt or innocence. As far as polygraph examination is concerned, though there are some studies showing improvements in the accuracy of results with advancement in technology, there is always scope for error on account of several factors. Objections can be raised about the qualifications of the examiner, the physical conditions under which the test was conducted, the manner in which questions were framed and the possible use of ‘countermeasures’ by the test subject. A significant criticism of polygraphy is that sometimes the physiological responses triggered by feelings such as anxiety and fear could be misread as those triggered by deception. Similarly, with the P300 Waves test there are inherent limitations such as the subject having had ‘prior exposure’ to the ‘probes’ which are used as stimuli. Furthermore, this technique has not been the focus of rigorous independent studies. The questionable scientific reliability of these techniques comes into conflict with the standard of proof ‘beyond reasonable doubt’ which is an essential feature of criminal trials.

211. Another factor that merits attention is the role of the experts who administer these tests. While the consideration of expert opinion testimony has become a mainstay in our criminal justice system with the advancement of fields such as forensic toxicology, questions have been raised about the credibility of experts who are involved in administering the impugned techniques. It is a widely accepted principle for evaluating the validity of any scientific technique that it should have been subjected to rigorous independent studies and peer review. This is so because the persons who are involved in the invention and development of certain techniques are perceived to have an interest in their promotion. Hence, it is quite likely that such persons may give unduly favourable responses about the reliability of the techniques in question.

212. Even though India does not have a jury system, the use of the impugned techniques could impede the fact-finding role of a trial judge. This is a special concern in our legal system, since the same judge presides over the evidentiary phase of the trial as well as the guilt phase. The consideration of the test results or their fruits for the purpose of deciding on their admissibility could have a prejudicial effect on the judge’s mind even if the same are not eventually admitted as evidence. Furthermore, we echo the concerns expressed by the Supreme Court of Canada in R v. Beland, [1987] 36 C.C.C. (3d) 481, where it was observed that reliance on scientific techniques could cloud human judgment on account of an ‘aura of infallibility’. While judges are expected to be impartial and objective in their evaluation of evidence, one can never discount the possibility of undue public pressure in some cases, especially when the test results appear to be inculpatory. We have already expressed concerns with situations where media organisations have either circulated the video-recordings of narcoanalysis interviews or broadcasted dramatized re-constructions, especially in sensational criminal cases.

213. Another important consideration is that of ensuring parity between the procedural safeguards that are available to the prosecution and the defence. If we were to permit the compulsory administration of any of the impugned techniques at the behest of investigators, there would be no principled basis to deny the same opportunity to defendants as well as witnesses. If the investigators could justify reliance on these techniques, there would be an equally compelling reason to allow the indiscrete administration of these tests at the request of convicts who want re-opening of their cases or even for the purpose of attacking and rehabilitating the credibility of witnesses during a trial. The decision in United States v. Scheffer, 523 US 303 (1998), has highlighted the concerns with encouraging litigation that is collateral to the main facts in issue. We are of the view that an untrammelled right of resorting to the techniques in question will lead to an unnecessary rise in the volume of frivolous litigation before our Courts.

214. Lastly, we must consider the possibility that the victims of offences could be forcibly subjected to any of these techniques during the course of investigation. We have already highlighted a provision in the Laboratory Procedure Manual for Polygraph tests which contemplates the same for ascertaining the testimony of victims of sexual offences. In light of the preceding discussion, it is our view that irrespective of the need to expedite investigations in such cases, no person who is a victim of an offence can be compelled to undergo any of the tests in question. Such a forcible administration would be an unjustified intrusion into mental privacy and could lead to further stigma for the victim.

Examining the ‘compelling public interest’

215. The respondents have contended that even if the compulsory administration of the impugned techniques amounts to a seemingly disproportionate intrusion into personal liberty, their investigative use is justifiable since there is a compelling public interest in eliciting information that could help in preventing criminal activities in the future. Such utilitarian considerations hold some significance in light of the need to combat terrorist activities, insurgencies and organised crime. It has been argued that such exigencies justify some intrusions into civil liberties. The textual basis for these restraints could be grounds such as preserving the ‘sovereignty and integrity of India’, ‘the security of the state’ and ‘public order’ among others. It was suggested that if investigators are allowed to rely on these tests, the results could help in uncovering plots, apprehending suspects and preventing armed attacks as well as the commission of offences. Reference was also made to the frequently discussed ‘Ticking Bomb’ scenario. This hypothetical situation examines the choices available to investigators when they have reason to believe that the person whom they are interrogating is aware of the location of a bomb. The dilemma is whether it is justifiable to use torture or other improper means for eliciting information which could help in saving the lives of ordinary citizens. [The arguments for the use of ‘truth serums’ in such situations have been examined in the following articles: Jason R. Odeshoo, ‘Truth or Dare?: Terrorism and Truth Serum in the Post- 9/11 World, 57 Stanford Law Review 209-255 (October 2004); Kenneth Lasson, ‘Torture, Truth Serum, and Ticking Bombs: Toward a pragmatic perspective on coercive interrogation’, 39 Loyola University Chicago Law Journal 329- 360 (Winter 2008)]

216. While these arguments merit consideration, it must be noted that ordinarily it is the task of the legislature to arrive at a pragmatic balance between the often competing interests of ‘personal liberty’ and public safety. In our capacity as a constitutional court, we can only seek to preserve the balance between these competing interests as reflected in the text of the Constitution and its subsequent interpretation. There is absolutely no ambiguity on the status of principles such as the ‘right against self-incrimination’ and the various dimensions of ‘personal liberty’. We have already pointed out that the rights guaranteed in Articles 20 and 21 of the Constitution of India have been given a non-derogable status and they are available to citizens as well as foreigners. It is not within the competence of the judiciary to create exceptions and limitations on the availability of these rights.

217. Even though the main task of constitutional adjudication is to safeguard the core organising principles of our polity, we must also highlight some practical concerns that strengthen the case against the involuntary administration of the tests in question. Firstly, the claim that the results obtained from these techniques will help in extraordinary situations is questionable. All of the tests in question are those which need to be patiently administered and the forensic psychologist or the examiner has to be very skilful and thorough while interpreting the results. In a narcoanalysis test the subject is likely to divulge a lot of irrelevant and incoherent information. The subject is as likely to divulge false information as he/she is likely to reveal useful facts. Sometimes the revelations may begin to make sense only when compared with the testimony of several other individuals or through the discovery of fresh materials. In a polygraph test, interpreting the results is a complex process that involves accounting for distortions such as ‘countermeasures’ used by the subject and weather conditions among others. In a BEAP test, there is always the possibility of the subject having had prior exposure to the ‘probes’ that are used as stimuli. All of this is a gradually unfolding process and it is not appropriate to argue that the test results will always prove to be crucial in times of exigency. It is evident that both the tasks of preparing for these tests and interpreting their results need considerable time and expertise.

218. Secondly, if we were to permit the forcible administration of these techniques, it could be the first step on a very slippery-slope as far as the standards of police behaviour are concerned. In some of the impugned judgments, it has been suggested that the promotion of these techniques could reduce the regrettably high incidence of ‘third degree methods’ that are being used by policemen all over the country. This is a circular line of reasoning since one form of improper behaviour is sought to be replaced by another. What this will result in is that investigators will increasingly seek reliance on the impugned techniques rather than engaging in a thorough investigation. The widespread use of ‘third-degree’ interrogation methods so as to speak is a separate problem and needs to be tackled through long-term solutions such as more emphasis on the protection of human rights during police training, providing adequate resources for investigators and stronger accountability measures when such abuses do take place.

219. Thirdly, the claim that the use of these techniques will only be sought in cases involving heinous offences rings hollow since there will no principled basis for restricting their use once the investigators are given the discretion to do so. From the statistics presented before us as well as the charges filed against the parties in the impugned judgments, it is obvious that investigators have sought reliance on the impugned tests to expedite investigations, unmindful of the nature of offences involved. In this regard, we do not have the authority to permit the qualified use of these techniques by way of enumerating the offences which warrant their use. By itself, permitting such qualified use would amount to a lawmaking function which is clearly outside the judicial domain.

220. One of the main functions of constitutionally prescribed rights is to safeguard the interests of citizens in their interactions with the government. As the guardians of these rights, we will be failing in our duty if we permit any citizen to be forcibly subjected to the tests in question. One could argue that some of the parties who will benefit from this decision are hardened criminals who have no regard for societal values. However, it must be borne in mind that in constitutional adjudication our concerns are not confined to the facts at hand but extend to the implications of our decision for the whole population as well as the future generations. Sometimes there are apprehensions about judges imposing their personal sensibilities through broadly worded terms such as ‘substantive due process’, but in this case our inquiry has been based on a faithful understanding of principles entrenched in our Constitution. In this context it would be useful to refer to some observations made by the Supreme Court of Israel in Public Committee Against Torture in Israel v. State of Israel, H.C. 5100 / 94 (1999), where it was held that the use of physical means (such as shaking the suspect, sleep-deprivation and enforcing uncomfortable positions for prolonged periods) during interrogation of terrorism suspects was illegal. Among other questions raised in that case, it was also held that the ‘necessity’ defence could be used only as a post factum justification for past conduct and that it could not be the basis of a blanket pre-emptive permission for coercive interrogation practices in the future. Ruling against such methods, Aharon Barak, J. held at p. 26:

“… This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the ‘Rule of Law’ and recognition of an individual’s liberty constitutes an important component in its understanding of security.”

CONCLUSION

221. In our considered opinion, the compulsory administration of the impugned techniques violates the ‘right against selfincrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorised as material evidence.

222. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned 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, 1973. Such an expansive interpretation is not feasible in light of the rule of ‘ejusdem generis’ and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the ‘right to fair trial’. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self-incrimination’.

223. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, 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 National Human Rights Commission had published ‘Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the ‘Narcoanalysis technique’ and the ‘Brain Electrical Activation Profile’ test. The text of these guidelines has been reproduced below:

(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.

224. The present batch of appeals is disposed of accordingly.

…………….CJI
[K.G. BALAKRISHNAN]

…………….,J.
[R.V. RAVEENDRAN]

……………, J.
[J.M. PANCHAL]

New Delhi
May 5, 2010

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SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
CIVIL APPEAL NO. OF 2010
(D.21216/2010)

Central Electricity Regulatory Commission ……Appellant (s)

VERSUS

National Hydroelectric Power Corporation Ltd. & Ors ……Respondent(s)

(With appln(s) for condonation of delay in filing appeal and office report)
With Civil Appeal No. of 2010 (D.21576/2010)
(With appln(s) for condonation of delay in filing appeal and office report)

Date: 26/07/2010 These Appeals were called on for hearing today.

CORAM :
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE K.S. RADHAKRISHNAN
HON’BLE MR. JUSTICE SWATANTER KUMAR

For Petitioner(s) :
Mr. Jaideep Gupta,Sr.Adv.
Mr. Nikhil Nayyar,Adv.
Mr. T.V.S. Raghavendra Shreyas,Adv.
Mr. Swapnil Verma,Adv.

For Respondent(s) :
UPON hearing counsel the Court made the following

ORDER

In various Courts, the statistical data indicates that, on account of delay in process serving, arrears keep on mounting. In Delhi itself, the input indicates that fifty percent of the arrears in Courts particularly in commercial cases is on account of delay in process serving. For the above reasons, the following directions, as mentioned hereinbelow, are given:

[i] In addition to the normal mode of service, service of Notice(s) may be affected by E-Mail for which the advocate(s) on-record will, at the time of filing of petition/appeal, furnish to the filing counter a soft copy of the entire petition/appeal in PDF format;

[ii] The advocate(s) on-record shall also simultaneously submit E-Mail addresses of the respondent(s) Companies/Corporation(s) to the filing counter of the Registry. This will be in addition to the hard copy of the petition/appeal;

[iii] If the Court issues notice, then, in that event alone, the Registry will send such an additional notice at the E-Mail addresses of the respondent(s) Companies/Corporation(s) via E-Mail;

[iv] The Registry will also send Notice at the E-Mail address of the advocate(s) for respondent(s) Companies/Corporation(s), who have filed caveat. Advocate(s) on-record filing caveat shall provide his/her E-Mail address for effecting service; and

[v] Within two weeks from today, Cabinet Secretariat shall also provide centralized E-Mail addresses of various Ministries/Departments/ Regulatory Authorities along with the names of the Nodal Officers, if already appointed,for the purposes of service.

Clarification:
The above facility is being extended in addition to the modes of service mentioned in the existing Supreme Court Rules. This facility, for the time being, is extended to commercial litigation and to those cases where the advocate(s) on-record seeks urgent interim reliefs.

A copy of this Order be sent to all the High Courts for necessary action.

*****
Delay condoned in these appeals.
The civil appeals are admitted.
Tag the appeals with Civil Appeal No.5442 of 2007.
As regards interim applications, place the matter on 2nd August 2010.

[ T.I. Rajput ]
A.R.-cum-P.S.

[ Madhu Saxena ]
Assistant Registrar

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1134-1135 OF 2002

DATE: 18-january-2010

The state of Uttaranchal … Appellant
Versus
Balwant Singh Chaufal & Others … Respondents

JUDGMENT
Dalveer Bhandari, J.

1. These appeals have been filed by the State of Uttaranchal (now Uttarakhand) against the orders dated 12.7.2001 and 1.8.2001 passed by the Division Bench of the High Court of Uttaranchal at Nainital in Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001.

2. The appointment of L. P. Nathani was challenged before the High Court in a Public Interest Litigation on the ground that he could not hold the august Office of the Advocate General of Uttarakhand in view of Article 165 read with Article 217 of the Constitution. According to the respondent, Mr. Nathani was ineligible to be appointed as the Advocate General because he had attained the age of 62 years much before he was appointed as the Advocate General. The High Court entertained the petition and directed the State Government to take decision on the issue raised within 15 days and apprise the same to the High Court.

3. The State of Uttaranchal preferred special leave petitions before this Court on 6.8.2001. This Court vide order dated 9.8.2001 stayed the operation of the impugned judgment of the High Court. Thereafter on 11.2.2002, this Court granted leave and directed that the stay already granted shall continue.

4. It may be pertinent to mention that, despite the service of notice, the respondents who had initially filed the writ petition before the High Court challenging the appointment of Nathani as the Advocate General did not appear before this Court. This clearly demonstrates the nonseriousness and non-commitment of the respondents in filing the petition.

5. Before we proceed to examine the controversy involved in this case, we deem it appropriate to set out Articles 165 and 217 of the Constitution dealing with the post of the Advocate General and the qualifications for appointment to this post in the Constitution. Article 165 which deals with the appointment of the Advocate General for the States is reproduced as under:

“165. The Advocate-General for the State.-(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.
(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.

6. Article 217 which deals with the appointment and the conditions of the office of a Judge of a High Court is set out as under:

217 – Appointment and conditions of the office of a Judge of a High Court .- (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:

Provided that–

(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.
(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such courts in succession;

Explanation: For the purposes of this clause—
(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act,1935, or has been an advocate of any High Court in any such area, as the case may be.

(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.”

7. The Division Bench of the High Court in the impugned judgment observed that the first clause of Article 165 insists that the Governor shall appoint a person as the Advocate General who is qualified to be appointed as a Judge of a High Court. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Article 217. It is true that the first clause of Article 217 says that a Judge of a High Court “shall hold office until he attains the age of 60 years” (at the relevant time the age of retirement of a Judge of the High Court was 60 years and now it is 62 years). The Division Bench further held that the real question then was whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. It was further held that as the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court. The Court further observed that the provisions about duration in the first clause of Article 217 cannot be made applicable to the Advocate General because the Constitution contains a specific provision about the duration of the appointment of the Advocate General in the third clause of Article 165 which says that the Advocate General shall hold office during the pleasure of the Governor. This provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words “until he attains the age of sixty years”. The specific provision in the Constitution must, therefore, be given effect to without any limitation. If a person is appointed as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217.

8. Shri Dinesh Dwivedi, the learned senior counsel appearing for the State of Uttarakhand submitted that, over half a century ago, in G.D. Karkare v. T.L. Shevde & Others AIR 1952 Nagpur 330, this controversy has been settled by the Division Bench of the Nagpur High Court and the said judgment was approved by a Constitution Bench of this Court in the case of Atlas Cycle Industries Ltd. Sonepat v. Their Workmen 1962 Supp. (3) SCR 89. In Karkare’s case (supra), it was observed as follows:

“25. It is obvious that all the provisions relating to a Judge of a High Court cannot be made applicable to the Advocate-General. The provisions about remuneration are different for the two offices. A Judge of the High Court is governed by Art. 221. The Advocate-General is governed by clause (3) of Art. 165 and receives such remuneration as the Governor may determine.

26. What the first clause of Art. 165 insists is that the Governor shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Art. 217. It is true that the first clause of Art 217 says that a Judge of a High Court “shall hold office until he attains the age of 60 years”. The real question then is whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. As the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court.

27. The provision about duration in the first clause of Art. 217 cannot be made applicable to the Advocate-General because the Constitution contains a specific provision about the duration of the appointment of the AdvocateGeneral in the third clause of Art. 165 which says that the Advocate-General shall hold office during the pleasure of the Governor. As this provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words “until he attains the age of sixty years”. The specific provision in the Constitution must therefore be given effect to without any limitation. If a person is appointed Advocate-General, say at the age of fifty-five, there is no warrant for holding that he must cease to hold his office on this attaining sixty years because it is so stated about a Judge of a High Court in the first clause of Art. 217. If that be the true position, as we hold it is, then the appointment is not bad because the person is past sixty years, so long as he has the qualifications prescribed in the second clause of Art. 217. It was not suggested that the non-applicant does not possess the qualifications prescribed in that clause.

28. The provision that every Judge of a High Court “shall hold office until he attains the age of sixty years” has two aspects to it. While in one aspect it can be viewed as a guarantee of tenure during good behaviour to a person appointed as a Judge of a High Court until he attains the age of sixty, in another aspect it can be viewed as a disability in that a Judge cannot hold his office as of right after he attains the age of sixty years.

29. We say as of right because under Art. 224 a person who has retired as a Judge of a High Court may be requested to sit and act as a Judge of a High court. The attainment of the age of sixty by a person cannot therefore be regarded as a disqualification for performing the functions of a Judge. But the learned counsel for the applicant tried to distinguish between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act as a Judge under Article 224. The distinction between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act under Article 224 is not with respect to the qualifications for performing the functions of a Judge, but with respect to the matters provided by Article 221, 222, 223, etc. In the language of the Constitution a Judge does not lose the qualifications prescribed in the second clause of Article 217 on the attainment of the age of sixty years. A person who attains that age cannot be appointed as a Judge not because he is not qualified to be so appointed within the meaning of the second clause of Article 217, but because the first clause of that Article expressly provides that a Judge shall hold office until he attains the age of sixty years.

(30) If the provision in the first clause of Article 217 viewed as a guarantee of tenure of office until the age of sixty is not available to the Advocate-General because he holds office during the pleasure of the Governor, we see no compelling reason why the same provision construed as a disability should be made applicable to him. We are, therefore, of the view that the first clause of Article 217 cannot be read with the first clause of Article 165 so as to disqualify a person from being appointed Advocate-General after the age of sixty years. We have no doubt on the point. Even if the question be considered as not free from doubt, as the applicant desires to construe the first clause of Article 217 as a disabling provision against the non-applicant, we cannot forget that provisions entailing disabilities have to be construed strictly: ‘Parameshwaram Pillai Bhaskara Pillai v. State’, 1950-5 Dom L R (Trav) 382. The canon of construction approved by their Lordships of the Privy Council is that if there be any ambiguity as to the meaning of a disabling provision, the construction which is in favour of the freedom of the individual should be given effect to : ‘David v. De’silva’, (1934) A C 106 at p. 114.

(31) There is no force in the contention that the non-applicant could not have been appointed Advocate-General because he had retired as a Judge of the High Court. The learned counsel referred us to Clause (4)(a) of Article 22 of the Constitution and submitted that the Constitution makes a distinction between a person who has been a Judge and one who is qualified to be appointed as a Judge of a High Court. The provision in our view only makes an exhaustive enumeration of the classes of persons who can constitute an Advisory Board. Such persons must either be or must have been or must be qualified to be appointed as Judges of a High Court. The provision has therefore no bearing on the question whether the first clause of Article 165 has to be read with the first clause of Article 217, which question we have already answered in the negative. The case of the nonapplicant is unique. Article 220 is not applicable to him because he did not hold office as a Judge of the High Court after the commencement of the Constitution. So the bar contained in that Article also does not come in his way.”

9. Despite the fact that the controversy has been fully settled by a judgment of this Court, it has been raised from time to time in a number of writ petitions before the various High Courts. We would reproduce some of the judgments to demonstrate that after the controversy has been finally settled by this Court, the filing of indiscriminate petitions with the same relief creates unnecessary strain on the judicial system and consequently leads to inordinate delay in disposal of genuine and bona fide cases.

10. The following cases would demonstrate that, in how many High Courts, the similar controversy has been raised after the matter was finally settled by this Court:

11. In Ghanshyam Chandra Mathur v. The State of Rajasthan & Others 1979 Weekly Law Notes 773, the appointment of the Advocate General was once again challenged. The court held that “…no age of superannuation has been mentioned in Article 165 of the Constitution of India. This clearly means that the age of superannuation which applies to a High Court Judge, does not apply to the office of the Advocate General”.

12. In Dr. Chandra Bhan Singh v. State of Rajasthan & Others AIR 1983 Raj. 149, the question regarding the validity of the appointment of the Advocate General was challenged. The Court in this case had held that the age of superannuation of a High Court Judge did not apply to the post of the Advocate General. The court noted that all provisions in the Constitution for High Court Judges, such as remuneration and tenure of office do not apply to the post of the Advocate General.

13. In Manendra Nath Rai & Another v. Virendra Bhatia & Others AIR 2004 All. 133, the appointment of the Advocate General was yet again challenged. The Court held as under: “The argument that the provision of Sub-clause (1) of Article 217 of the Constitution should be followed in the matter of appointment of Advocate General is wholly misconceived. Article 217 of the Constitution deals with the appointment and conditions of the office of a Judge of a High Court. The consultation with the Chief Justice of the State in the matter of appointment of a Judge of the High Court cannot be made a requirement in the matter of the appointment of Advocate General. The appointment of Advocate General is not governed by the aforesaid Article which falls in Chapter-V Part-6 of the Constitution whereas Article 165, which deals with the appointment of Advocate General for the State falls in Chapter II of Part 6. The scheme of the Constitution for the appointment of Advocate General as well as for appointment of a Judge of the High Court is totally different.”

14. In a Division Bench judgment dated 4.2.2005 of the Allahabad High Court in Prem Chandra Sharma & Others v. Milan Banerji & Others in writ petition No. 716 (M/B) of 2005 reported in 2005 (3) ESC 2001, the appointment of the Attorney General for India was challenged and a prayer was made to issue a writ in the nature of quo warranto, because according to the petitioner, the respondent Milan Banerji had already attained the age of 65 years and he could not be appointed as the Attorney General for India. In that case, the Division Bench relied upon the judgment of the Division Bench of the Nagpur High Court in G.D. Karkare’s case (supra). The Court held as under:

“Having examined various provisions of the Constitution, it is quite clear that the Constitution of India does not provide the retirement age of various constitutional appointees. No outer age limit has been provided for the appointment of the Attorney General, Solicitor General and Advocate General in the State. In the democratic system, prevailing in our country the Attorney General is appointed on the recommendation of the Prime Minister by the President of India and traditionally, he resigns along with the Prime Minister. Learned Counsel for the petitioner could not show any law relating to the age of retirement of Attorney General or embargo provided in Constitution on appointment of a person as Attorney General, who has already attained the age of 65 years. We are of the considered opinion that the letter and spirit of the Constitution as far as appointment of the Attorney General is concerned, looking to significance, responsibility and high status of the post, it lays down certain requirements for a Member of Bar to be appointed as Attorney General of India. It is in this backdrop that the framers of the Constitution thought it necessary to prescribe minimum requisite qualification by laying that a person who is qualified to be appointed as Judge of the Hon’ble Court can be appointed as Attorney-General of India. This situation, however, cannot lead us to the conclusion by any stretch of imagination that the Attorney General cannot hold his office after the age of 65 years. As already indicated herein-above there are various constitutional functionaries where no outer age limit is provided to hold the office.”

15. In view of the clear enunciation of law in the aforesaid judgments, the controversy has been fully settled that the Advocate General for the State can be appointed after he/she attains the age of 62 years. Similarly, the Attorney General for India can be appointed after he/she attains the age of 65 years. In a number of other cases regarding the appointment of other authorities, the Courts have consistently taken the similar view.

16. This Court in Binay Kant Mani Tripathi v. Union of India & Others (1993) 4 SCC 49 has re-affirmed this position. The Court pointed out that the decision of appointing D.K. Aggarwal to the position of the Vice-chairman of the Central Administrative Tribunal could not be held to be illegal or wrong on the ground that he was more than sixty two years old.

17. In Baishnab Patnaik & Others v. The State AIR 1952 Orissa 60, the appointment of a person to the Advisory Board under the Preventive Detention Act was challenged on the grounds that he was older than 60 years (the age of superannuation for High Court judges at that time). The court pointed out:
“If the makers of the Constitution thought that the age limit was one of the qualifications for appointment as a Judge of a High Court they would not have specified it in Clause (1) of Article 217 but would have included it in Clause (2) of the said Article.”

18. In Gurpal Singh v. State of Punjab & Others (2005) 5 SCC 136, the appointment of the appellant as Auction Recorder was challenged. The Court held that the scope of entertaining a petition styled as a public interest litigation and locus standi of the petitioner particularly in matters involving service of an employee has been examined by this Court in various cases. The Court observed that before entertaining the petition, the Court must be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. The court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions.

19. The aforementioned cases clearly give us the picture how the judicial process has been abused from time to time and after the controversy was finally settled by a Constitution Bench of this Court, repeatedly the petitions were filed in the various courts.

20. In the instant case, one of the petitioners before the High Court is a practicing lawyer of the court. He has invoked the extraordinary jurisdiction of the High Court in this matter. It was expected from a Hon’ble member of the noble profession not to invoke the jurisdiction of the court in a matter where the controversy itself is no longer res integra.

21. Similarly, it is the bounden duty of the court to ensure that the controversy once settled by an authoritative judgment should not be reopened unless there are extraordinary reasons for doing so.

22. In the instant case, the High Court entertained the petition despite the fact that the controversy involved in the case was no longer res integra. In reply to that writ petition, the Chief Standing Counsel of Uttrakhand also filed a Miscellaneous Application before the High Court. The relevant portion of the application reads as under:

“3. That the following Attorney Generals appointed under Article 76 of the Constitution were appointed when they were appointed as Attorney General were beyond prescribed age for appointment as Supreme Court of India.
(I) Sri M. C. Setalvad
(II) Sri C. K. Dapatary
(III)Shri Niren De
(IV) Sri Lal Narain Singh
(V) Sri K. Parasaran
(VI) Sri Soli Sorabjee

4. That the appointment of present Attorney General (Mr. Milon Banerjee) was challenged before the Delhi High Court and the petition was dismissed in limine. The appointment of Mr. R.P. Goel, Advocate General of U.P. who has passed the age of 62 at the time of appointment was also dismissed.

5. That in the Hon’ble High Court of Judicature at Allahabad Sri JV. K.S. Chaudhary, Sir Rishi Ram, Pt. Kanhaiya Lal Mishra, Sri Shanti Swaroop Bhatnagar and several others were appointed as Advocate General after crossing the age of 62 years. There were several Advocate Generals in India who were appointed after 62 years.”

23. The State of Uttrakhand was a part of the State of U.P. a few years ago. In the State of U.P., a large number of Advocate Generals appointed were beyond 62 years of age at the time of their appointment. The petitioner, a local practicing lawyer, ought to have bestowed some care before filing this writ petition in public interest under Article 226 of the Constitution.

24. The controversy raised by the petitioner in this case was decided 58 years ago in the judgment of Karkare (supra) which was approved by the Constitution Bench of the Supreme Court way back in 1962. Unfortunately, the same controversy has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res-integra and the same controversy is raised repeatedly, then it not only wastes the precious time of the Court and prevent the Court from deciding other deserving cases, but also has the immense potentiality of demeaning a very important constitutional office and person who has been appointed to that office.

25. In our considered view, it is a clear case of the abuse of process of court in the name of the Public Interest Litigation. In order to curb this tendency effectively, it has now become imperative to examine all connected issues of public interest litigation by an authoritative judgment in the hope that in future no such petition would be filed and/or entertained by the Court.

26. To settle the controversy, we deem it appropriate to deal with different definitions of the Public Interest Litigation in various countries. We would also examine the evolution of the public interest litigation.

DEFINITIONS OF PUBLIC INTERST LITIGATION

27. Public Interest Litigation has been defined in the Black’s Law Dictionary (6th Edition) as under:- “Public Interest – Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government….”

28. Advanced Law Lexicon has defined ‘Public Interest Litigation’ as under:-

“The expression ‘PIL’ means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community has pecuniary interest or some interest by which their legal rights or liabilities are affected.”

29. The Council for Public Interest Law set up by the Ford Foundation in USA defined “public interest litigation” in its report of Public Interest Law, USA, 1976 as follows: “Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.” (M/s Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Ors. – AIR 2008 SC 913, para 19).

30. This court in People’s Union for Democratic Rights & Others v. Union of India & Others (1982) 3 SCC 235 defined ‘Public Interest Litigation’ and observed that the “Public interest litigation is a cooperative or collaborative effort by the petitioner, the State of public authority and the judiciary to secure observance of constitutional or basic human rights, benefits and privileges upon poor, downtrodden and vulnerable sections of the society”.

ORIGIN OF PUBLIC INTEREST LITIGATION:

31. The public interest litigation is the product of realization of the constitutional obligation of the court.

32. All these petitions are filed under the big banner of the public interest litigation. In this view of the matter, it has become imperative to examine what are the contours of the public interest litigation? What is the utility and importance of the public interest litigation? Whether similar jurisdiction exists in other countries or this is an indigenously developed jurisprudence? Looking to the special conditions prevalent in our country, whether the public interest litigation should be encouraged or discouraged by the courts? These are some of the questions which we would endeavour to answer in this judgment.

33. According to our opinion, the public interest litigation is an extremely important jurisdiction exercised by the Supreme Court and the High Courts. The Courts in a number of cases have given important directions and passed orders which have brought positive changes in the country. The Courts’ directions have immensely benefited marginalized sections of the society in a number of cases. It has also helped in protection and preservation of ecology, environment, forests, marine life, wildlife etc. etc. The court’s directions to some extent have helped in maintaining probity and transparency in the public life.

34. This court while exercising its jurisdiction of judicial review realized that a very large section of the society because of extreme poverty, ignorance, discrimination and illiteracy had been denied justice for time immemorial and in fact they have no access to justice. Pre-dominantly, to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized sections of the society, this court has initiated, encouraged and propelled the public interest litigation. The litigation is upshot and product of this court’s deep and intense urge to fulfill its bounded duty and constitutional obligation.

35. The High Courts followed this Court and exercised similar jurisdiction under article 226 of the Constitution. The courts expanded the meaning of right to life and liberty guaranteed under article 21 of the Constitution. The rule of locus standi was diluted and the traditional meaning of ‘aggrieved person’ was broadened to provide access to justice to a very large section of the society which was otherwise not getting any benefit from the judicial system. We would like to term this as the first phase or the golden era of the public interest litigation. We would briefly deal with important cases decided by this Court in the first phase after broadening the definition of ‘aggrieved person’. We would also deal with cases how this Court prevented any abuse of the public interest litigation?

36. This Court in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India & Others AIR 1981 SC 298 at page 317, held that our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through ‘class actions’, ‘public interest litigation’, and ‘representative proceedings’. Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concepts of ‘cause of action’, ‘person aggrieved’ and individual litigation are becoming obsolescent in some jurisdictions.

37. In Bandhua Mukti Morcha v. Union of India & Others AIR 1984 SC 802, this court entertained a petition even of unregistered Association espousing the cause of over down- trodden or its members observing that the cause of “little Indians” can be espoused by any person having no interest in the matter.

38. In the said case, this court further held that where a public interest litigation alleging that certain workmen are living in bondage and under inhuman conditions is initiated it is not expected of the Government that it should raise preliminary objection that no fundamental rights of the petitioners or the workmen on whose behalf the petition has been filed, have been infringed. On the contrary, the Government should welcome an inquiry by the Court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act, 1976 but they are made to provide forced labour or any consigned to a life of utter deprivation and degradation, such a situation can be set right by the Government.

39. Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements.

40. In Fertilizer Corporation Kamagar Union (Regd., Sindri & Others v. Union of India & Others AIR 1981 SC 844, this court observed that “public interest litigation is part of the process of participative justice and ‘standing’ in civil litigation of that pattern must have liberal reception at the judicial doorsteps”.

41. In Ramsharan Autyanuprasi & Another v. Union of India & Others AIR 1989 SC 549, this court observed that the public interest litigation is for making basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social, economic and political justice.

EVOLUTION OF THE PUBLIC INTEREST LITIGATION IN INDIA

42. The origin and evolution of Public Interest Litigation in India emanated from realization of constitutional obligation by the Judiciary towards the vast sections of the society – the poor and the marginalized sections of the society. This jurisdiction has been created and carved out by the judicial creativity and craftsmanship. In M. C. Mehta & Another v. Union of India & Others AIR 1987 SC 1086, this Court observed that Article 32 does not merely confer power on this Court to issue direction, order or writ for the enforcement of fundamental rights. Instead, it also lays a constitutional obligation on this Court to protect the fundamental rights of the people. The court asserted that, in realization of this constitutional obligation, “it has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights”. The Court realized that because of extreme poverty, a large number of sections of society cannot approach the court. The fundamental rights have no meaning for them and in order to preserve and protect the fundamental rights of the marginalized section of society by judicial innovation, the courts by judicial innovation and creativity started giving necessary directions and passing orders in the public interest.

43. The development of public interest litigation has been extremely significant development in the history of the Indian jurisprudence. The decisions of the Supreme Court in the 1970’s loosened the strict locus standi requirements to permit filing of petitions on behalf of marginalized and deprived sections of the society by public spirited individuals, institutions and/or bodies. The higher Courts exercised wide powers given to them under Articles 32 and 226 of the Constitution. The sort of remedies sought from the courts in the public interest litigation goes beyond award of remedies to the affected individuals and groups. In suitable cases, the courts have also given guidelines and directions. The courts have monitored implementation of legislation and even formulated guidelines in absence of legislation. If the cases of the decades of 70s and 80s are analyzed, most of the public interest litigation cases which were entertained by the courts are pertaining to enforcement of fundamental rights of marginalized and deprived sections of the society. This can be termed as the first phase of the public interest litigation in India.

44. The Indian Supreme Court broadened the traditional rule of standing and the definition of “person aggrieved”. 45. In this judgment, we would like to deal with the origin and development of public interest litigation. We deem it appropriate to broadly divide the public interest litigation in three phases.

Phase-I: It deals with cases of this Court where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalized groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this court or the High Courts.

Phase-II: It deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments etc. etc.

Phase-III: It deals with the directions issued by the Courts in maintaining the probity, transparency and integrity in governance.

46. Thereafter, we also propose to deal with the aspects of abuse of the Public Interest Litigation and remedial measures by which its misuse can be prevented or curbed.

DISCUSSION OF SOME IMPORTANT CASES OF PHASE-I

47. The court while interpreting the words “person aggrieved” in Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed & Others (1976) 1 SCC 671 observed that “the traditional rule is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings will be covered by this rule”.

48. The rule of locus standi was relaxed in Bar Council of Maharashtra v. M. V. Dabholkar & Others 1976 SCR 306. The court observed as under:

“Traditionally used to the adversary system, we search for individual persons aggrieved. But a new class of litigation public interest litigationwhere a section or whole of the community is involved (such as consumers’ organisations or NAACP-National Association for Advancement of Coloured People-in America), emerges in a developing country like ours, this pattern of public oriented litigation better fulfils the rule of law if it is to run close to the rule of life.

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“The possible apprehension that widening legal standing with a public connotation may unloose a flood of litigation which may overwhelm the judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system.”

49. The court in this case observed that “procedural prescriptions are handmaids, not mistresses of justice and failure of fair play is the spirit in which Courts must view procession deviances.”

50. In The Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai & Others AIR 1976 SC 1455, this Court made conscious efforts to improve the judicial access for the masses by relaxing the traditional rule of locus standi.

51. In Sunil Batra v. Delhi Administration & OthersAIR 1978 SC 1675, the Court departed from the traditional rule of standing by authorizing community litigation. The Court entertained a writ petition from a prisoner, a disinterested party, objecting to the torture of a fellow prisoner. The Court entertained the writ after reasoning that “these ‘martyr’ litigations possess a beneficent potency beyond the individual litigant and their consideration on the wider representative basis strengthens the rule of law.” Significantly, citing “people’s vicarious involvement in our justice system with a broad-based concept of locus standi so necessary in a democracy where the masses are in many senses weak,” the Court permitted a human rights organization to intervene in the case on behalf of the victim.

52. In Hussainara Khatoon & Others v. Home Secretary, State of Bihar, Patna AIR 1979 SC 1369, P. N. Bhagwati, J. has observed that “today, unfortunately, in our country the poor are priced out of the judicial system with the result that they are losing faith in the capacity of our legal system to (sic) about changes in their life conditions and to deliver justice to them. The poor in their contact with the legal system have always been on the wrong side of the line. They have always come across ‘law for the poor” rather than law of the poor’. The law is regarded by them as something mysterious and forbidding–always taking something away from them and not as a positive and constructive social device for changing the social economic order and improving their life conditions by conferring rights and benefits on them. The result is that the legal system has lost its credibility for the weaker section of the community.

53. In Prem Shankar Shukla v. Delhi Administration AIR 1980 SC 1535, a prisoner sent a telegram to a judge complaining of forced handcuff on him and demanded implicit protection against humiliation and torture. The court gave necessary directions by relaxing the strict rule of locus standi. 54. In Municipal Council, Ratlam v. Vardhichand & Others AIR 1980 SC 1622, Krishna Iyer, J. relaxed the rule of locus standi:

“The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of ‘standing’ of British Indian vintage. If the center of gravity of justice is to shift, as the Preamble to the Constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered….

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Why drive common people to public interest action? Where Directive Principles have found statutory expression in Do’s and Don’ts the court will not sit idly by and allow municipal government to become a statutory mockery. The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice…”

55. In Fertilizer Corporation Kamgar Union (supra) Krishna Iyer, J. and Bhagwati, J. had to answer in affirmative as to whether the workers in a factory owned by government had locus standi to question the legality of sale of the factory. They concluded with a quote: ‘Henry Peter Brougham: Nieman Reports, April 1956 as under:

“It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereign’s boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.”

56. In People’s Union for Democratic Rights & Others (supra), this Court observed as under: “that public interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the Fundamental Right to carry on their business and to fatten their purses by exploiting the consuming public, have the ‘chamars’ belonging to the lowest strata of society no Fundamental Right to earn an honest living through their sweat and toil? The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right of exploit is upheld against the government under the label of Fundamental Right, the courts are praised for their boldness and courage and their independence and fearlessness are applauded and acclaimed. But, if the Fundamental Right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters. Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy, simply do not exist for the vast masses of our people. Large numbers of men, women and children who constitute the bulk of our population are today living a sub-human existence in conditions of abject poverty: utter grinding poverty has broken their back and sapped their moral fibre. They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce?

57. Justice Bhagwati of this court in his judgment in S.P. Gupta v. President of India & Others AIR 1982 SC 149 altogether dismissed the traditional rule of standing, and replaced it with a liberalized modern rule. In this case, the Court awarded standing to advocates challenging the transfer of judges during Emergency. Describing the traditional rule as an “ancient vintage” of “an era when private law dominated the legal scene and public law had not been born,” the Court concluded that the traditional rule of standing was obsolete. In its place, the Court prescribed the modern rule on standing:

“where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ, in the High Court under Article 226, and in case of breach of any fundamental right, in this Court under Article 32.”

58. Finding that the practicing advocates “are vitally interested in the maintenance of a fearless and an independent Judiciary,” the Court granted standing to the advocates under the modern rule to bring cases challenging the transfer of judges during Emergency. In this case, this Court further observed as under:

“…it must now be regarded as well settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the Court on account of some disability or it is not practicable for him to move the Court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the Court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go un-redressed and justice is done to him.

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…Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for Judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this proactive, goal-oriented approach.”

59. In Anil Yadav & Others v. State of Bihar and Bachcho Lal Das, Superintendent, Central Jail, Bhagalpur, Bihar (1982) 2 SCC 195, a petition was filed regarding blinding of undertrial prisoners at Bhagalpur in the State of Bihar. According to the allegation, their eyes were pierced with needles and acid poured into them. The Court had sent a team of the Registrar and Assistant Registrar to visit the Central Jail, Bhagalpur and submit a report to the Court. The Court passed comprehensive orders to ensure that such barbarous and inhuman acts are not repeated.

60. In Munna & Others v. State of Uttar Pradesh & Others, (1982) 1 SCC 545, the allegation was that the juvenile undertrial prisoners have been sent in the Kanpur Central Jail instead of Children’s Home in Kanpur and those children were sexually exploited by the adult prisoners. This Court ruled that in no case except the exceptional ones mentioned in the Act, a child can be sent to jail. The Court further observed that the children below the age of 16 years must be detained only in the Children’s Homes or other place of safety. The Court also observed that “a Nation which is not concerned with the welfare of the children cannot look forward to a bright future.”

61. Thereafter, in a series of cases, the Court treated Post Cards and letters as writ petitions and gave directions and orders.

62. In Sheela Barse v. State of Maharashtra AIR 1983 SC 378, Sheela Barse, a journalist, complained of custodial violence to women prisoners in Bombay. Her letter was treated as a writ petition and the directions were given by the court.

63. In Dr. Upendra Baxi (I) v. State of Uttar Pradesh & Another 1983 (2) SCC 308 two distinguished law Professors of the Delhi University addressed a letter to this court regarding inhuman conditions which were prevalent in Agra Protective Home for Women. The court heard the petition on a number of days and gave important directions by which the living conditions of the inmates were significantly improved in the Agra Protective Home for Women.

64. In Veena Sethi (Mrs.) v. State of Bihar & Others AIR 1983 SC 339, some prisoners were detained in jail for a period ranging from 37 years to 19 years. They were arrested in connection with certain offences and were declared insane at the time of their trial and were put in Central Jail with directions to submit half-yearly medical reports. Some were convicted, some acquitted and trials were pending against some of them. After they were declared sane no action for their release was taken by the authorities. This Court ruled that the prisoners remained in jail for no fault of theirs and because of the callous and lethargic attitude of the authorities. Even if they are proved guilty the period they had undergone would exceed the maximum imprisonment that they might be awarded.

65. In Labourers Working on Salal Hydro Project v. State of Jammu & Kashmir & Others AIR 1984 SC 177, on the basis of a news item in the Indian Express regarding condition of the construction workers, this Court took notice and observed that the construction work is a hazardous employment and no child below the age of 14 years can therefore be allowed to be employed in construction work by reason of the prohibition enacted in Article 24 and this constitutional prohibition must be enforced by the Central Government.

66. In Shri Sachidanand Pandey & Another v. The State of West Bengal & Others (1987) 2 SCC 295, in the concurring judgment, Justice Khalid, J. observed that the public interest litigation should be encouraged when the Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected.

67. The case of B. R. Kapoor & Another v. Union of India & Others AIR 1990 SC 752 relates to public interest litigation regarding mismanagement of the hospital for mental diseases located at Shahdara, Delhi. This Court appointed a Committee of Experts which highlighted the problems of availability of water, existing sanitary conditions, food, kitchen, medical and nursing care, ill-treatment of patients, attempts of inmates to commit suicide, death of patients in hospital, availability of doctors and nurses etc. The Court went on to recommend the Union of India to take over the hospital and model it on the lines of NIMHANS at Bangalore.

68. In Smt. Nilabati Behera alias Lalita Behera v. State of Orissa & Others AIR 1993 SC 1960, this Court gave directions that for contravention of human rights and fundamental freedoms by the State and its agencies, a claim for monetary compensation in petition under Article 32 of 226 is justified. In a concurring judgment, Anand, J. (as he then was) observed as under:

“The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the courts too much as protector and guarantor of the indefeasible rights of the citizens. The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations.”

69. In Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary v. State of Punjab & Others (1994) 1 SCC 616, the allegation was that a practicing advocate, his wife and a child aged about two years were abducted and murdered. This Court directed the Director of the CBI to investigate and report to the Court.

70. In Navkiran Singh & Others v. State of Punjab through Chief Secretary & Another (1995) 4 SCC 591, in a letter petition the advocates from the Punjab & Haryana High Court expressed concerned about the kidnapping/elimination of advocates in the State of Punjab. This Court directed the CBI to investigate the matter and also directed the State of Punjab to provide security to those advocates who genuinely apprehend danger to their lives from militants/anti-social elements. The Court also observed that if the request for security is recommended by the District Judge or the Registrar of the High Court, it may treated as genuine and the State Government may consider the same sympathetically.

71. In Delhi Domestic Working Women’s Forum v. Union of India & Others (1995) 1 SCC 14, the Court expressed serious concern about the violence against women. The Court gave significant directions and observed that compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.

72. In Citizens for Democracy v. State of Assam & Others (1995) 3 SCC 743, this Court held that handcuffing and tying with ropes is inhuman and in utter violation of human rights guaranteed under the international law and the law of the land. The Court in para 15 observed as under:

“15….The handcuffing and in addition tying with ropes of the patient-prisoners who are lodged in the hospital is, the least we can say, inhuman and in utter violation of the human rights guaranteed to an individual under the international law and the law of the land. We are, therefore, of the view that the action of the respondents was wholly unjustified and against law. We direct that the detenus – in case they are still in hospital – be relieved from the fetters and the ropes with immediate effect.”

73. In Paramjit Kaur (Mrs.) v. State of Punjab & Others (1996) 7 SCC 20, a telegram was sent to a Judge of this Court which was treated as a habeas corpus petition. The allegation was that the husband of the appellant was kidnapped by some persons in police uniform from a busy residential area of Amritsar. The Court took serious note of it and directed the investigation of the case by the Central Bureau of Investigation.

74. In M. C. Mehta v. State of Tamil Nadu & Others (1996) 6 SCC 756, the Court was dealing with the cases of child labour and the Court found that the child labour emanates from extreme poverty, lack of opportunity for gainful employment and intermittency of income and low standards of living. The Court observed that it is possible to identify child labour in the organized sector, which forms a minuscule of the total child labour, the problem relates mainly to the unorganized sector where utmost attention needs to be paid.

75. In D. K. Basu v. State of West Bengal (1997) 1 SCC 416, this Court observed that the custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. The expression “life or personal liberty” in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. The precious right guaranteed by Article 21 cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. The Court gave very significant directions which are mandatory for all concerned to follow.

76. In Vishaka & Others v. State of Rajasthan & Others (1997) 6 SCC 241, this Court gave directions regarding enforcement of the fundamental rights of the working women under Articles 14, 19 and 21 of the Constitution. The Court gave comprehensive guidelines and norms and directed for protection and enforcement of these rights of the women at their workplaces.

77. In a recently decided case Prajwala v. Union of India & Others (2009) 4 SCC 798, a petition was filed in this Court in which it was realized that despite commencement of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, disabled people are not given preferential treatment. The Court directed the State Governments/local authorities to allot land for various purposes indicted in section 43 of the Act and various items indicated in section 43, preferential treatment be given to the disabled people and the land shall be given at concessional rates. The percentage of reservation may be left to the discretion of the State Governments. However, total percentage of disabled persons shall be taken into account while deciding the percentage.

78. In Avinash Mehrotra v. Union of India & Others (2009) 6 SCC 398, a public interest litigation was filed, when 93 children were burnt alive in a fire at a private school in Tamil Nadu. This happened because the school did not have the minimum safety standard measures. The court, in order to protect future tragedies in all such schools, gave directions that it is the fundamental right of each and every child to receive education free from fear of security and safety, hence the Government should implement National Building Code and comply with the said orders in constructions of schools for children.

79. All these abovementioned cases demonstrate that the courts, in order to protect and preserve the fundamental rights of citizens, while relaxing the rule of locus standi, passed a number of directions to the concerned authorities.

80. We would not like to overburden the judgment by multiplying these cases, but brief resume of these cases demonstrate that in order to preserve and protect the fundamental rights of marginalized, deprived and poor sections of the society, the courts relaxed the traditional rule of locus standi and broadened the definition of aggrieved persons and gave directions and orders. We would like to term cases of this period where the court relaxed the rule of locus standi as the first phase of the public interest litigation. The Supreme Court and the High Courts earned great respect and acquired great credibility in the eyes of public because of their innovative efforts to protect and preserve the fundamental rights of people belonging to the poor and marginalized sections of the society.

PHASE-II – DIRECTIONS TO PRESERVE AND PROTECT ECOLOGY AND ENVIRONMENT

81. The second phase of public interest litigation started sometime in the 1980’s and it related to the courts’ innovation and creativity, where directions were given to protect ecology and environment.

82. There are a number of cases where the court tried to protect forest cover, ecology and environment and orders have been passed in that respect. As a matter of fact, the Supreme Court has a regular Forest Bench (Green Bench) and regularly passes orders and directions regarding various forest cover, illegal mining, destruction of marine life and wild life etc. Reference of some cases is given just for illustration.

83. In the second phase, the Supreme Court under Article 32 and the High Court under Article 226 of the Constitution passed a number of orders and directions in this respect.

84. The recent example is the conversion of all public transport in the Metropolitan City of Delhi from diesel engine to CNG engine on the basis of the order of the High Court of Delhi to ensure that the pollution level is curtailed and this is being completely observed for the last several years. Only CNG vehicles are permitted to ply on Delhi roads for public transport.

85. Louise Erdrich Bigogress, an environmentalist has aptly observed that “grass and sky are two canvasses into which the rich details of the earth are drawn.” In 1980s, this court paid special attention to the problem of air pollution, water pollution, environmental degradation and passed a number of directions and orders to ensure that environment ecology, wildlife should be saved, preserved and protected. According to court, the scale of injustice occurring on the Indian soil is catastrophic. Each day hundreds of thousands of factories are functioning without pollution control devices. Thousands of Indians go to mines and undertake hazardous work without proper safety protection. Everyday millions of litres of untreated raw effluents are dumped into our rivers and millions of tons of hazardous waste are simply dumped on the earth. The environment has become so degraded that instead of nurturing us it is poisoning us. In this scenario, in a large number of cases, the Supreme Court intervened in the matter and issued innumerable directions.

86. We give brief resume of some of the important cases decided by this court. One of the earliest cases brought before the Supreme Court related to oleum gas leakage in Delhi. In order to prevent the damage being done to environment and the life and the health of the people, the court passed number of orders. This is well-known as M.C. Mehta & Another v. Union of India & Others AIR 1987 SC 1086. The court in this case has clearly laid down that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding area owes an absolute and nondelegable duty to the community to ensure that no such harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The court directed that the enterprise must adopt highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.

87. In Rural Litigation and Entitlement Kendra, Dehradun & Others v. State of U.P. & Others AIR 1985 SC 652 the Supreme Court ordered closure of all lime-stone quarries in the Doon Valley taking notice of the fact that lime-stone quarries and excavation in the area had adversely affected water springs and environmental ecology. While commenting on the closure of the lime-stone quarries, the court stated that this would undoubtedly cause hardship to owners of the lime-stone quarries, but it is the price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment.

88. Environmental PIL has emerged because of the court’s interpretation of Article 21 of the Constitution. The court in Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. & Others AIR 1990 SC 2060 observed that every citizen has fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to take recourse to Article 32 of the Constitution.

89. This court in Subhash Kumar v. State of Bihar & Others AIR 1991 SC 420 observed that under Article 21 of the Constitution people have the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.

90. The case of M.C. Mehta v. Union of India & Others (1988) 1 SCC 471, relates to pollution caused by the trade effluents discharged by tanneries into Ganga river in Kanpur. The court called for the report of the Committee of experts and gave directions to save the environment and ecology. It was held that “in Common Law the Municipal Corporation can be restrained by an injunction in an action brought by a riparian owner who has suffered on account of the pollution of the water in a river caused by the Corporation by discharging into the river insufficiently treated sewage from discharging such sewage into the river. But in the present case the petitioner is not a riparian owner. He is a person interested in protecting the lives of the people who make use of the water flowing in the river Ganga and his right to maintain the petition cannot be disputed. The nuisance caused by the pollution of the river Ganga is a public nuisance, which is widerspread in range and indiscriminate in its effect and it would not be reasonable to expect any particular person to take proceedings to stop it as distinct from the community at large. The petition has been entertained as a Public Interest Litigation. On the facts and in the circumstances of the case, the petitioner is entitled to move the Supreme Court in order to enforce the statutory provisions which impose duties on the municipal authorities and the Boards constituted under the Water (Prevention and Control of Pollution) Act, 1974”.

91. In Vellore Citizens Welfare Forum v. Union of India & Others AIR 1996 SC 2715, this court ruled that precautionary principle and the polluter pays principle are part of the environmental law of the country. This court declared Articles 47, 48A and 51A(g) to be part of the constitutional mandate to protect and improve the environment.

92. In M.C. Mehta v. Union of India & Others AIR 1988 SC 1037, this court observed that the effluent discharged in river Ganga from a tannery is ten times noxious when compared with the domestic sewage water which flows into the river from any urban area on its banks. The court further observed that the financial capacity of the tanneries should be considered as irrelevant without requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effect on the public at large.

93. In M.C. Mehta v. Union of India & Others AIR 1997 SC 734, this court observed that in order to preserve and protect the ancient monument Taj Mahal from sulphurdioxide emission by industries near Taj Mahal, the court ordered 299 industries to ban the use of coke/coal. The court further directed them to shift-over to Compressed Natural Gas (CNG) or re-locate them.

94. In A. P. Pollution Control Board v. Prof. M. V. Nayadu (Retd.) & Others (1999) 2 SCC 718, this Court quoted A. Fritsch, “Environmental Ethics: Choices for Concerned Citizens”. The same is reproduced as under: “The basic insight of ecology is that all living things exist in interrelated systems; nothing exists in isolation. The world system in weblike; to pluck one strand is to cause all to vibrate; whatever happens to one part has ramifications for all the rest. Our actions are not individual but social; they reverberate throughout the whole ecosystem”. [Science Action Coalition by A. Fritsch, Environmental Ethics: Choices for Concerned Citizens 3-4 (1980)] : (1988) Vol. 12 Harv. Env. L. Rev. at 313).”

95. The court in this case gave emphasis that the directions of the court should meet the requirements of public interest, environmental protection, elimination of pollution and sustainable development. While ensuring sustainable development, it must be kept in view that there is no danger to the environment or to the ecology.

96. In Essar Oil Ltd. v. Halar Utkarsh Samiti & Others AIR 2004 SC 1834, while maintaining the balance between economic development and environmental protection, the court observed as under:

“26. Certain principles were enunciated in the Stockholm Declaration giving broad parameters and guidelines for the purposes of sustaining humanity and its environment. Of these parameters, a few principles are extracted which are of relevance to the present debate. Principle 2 provides that the natural resources of the earth including the air, water, land, flora and fauna especially representative samples of natural eco-systems must be safeguarded for the benefit of present and future generations through careful planning and management as appropriate. In the same vein, the 4th principle says “man has special responsibility to safeguard and wisely manage the heritage of wild life and its habitat which are now gravely imperiled by a combination of adverse factors. Nature conservation including wild life must, therefore, receive importance in planning for economic developments”. These two principles highlight the need to factor in considerations of the environment while providing for economic development. The need for economic development has been dealt with in Principle 8 where it is said that “economic and social development is essential for ensuring a favourable living and working environment for man and for creating conditions on earth that are necessary for improvement of the quality of life”.”

97. On sustainable development, one of us (Bhandari, J.) in Karnataka Industrial Areas Development Board v. Sri C. Kenchappa & Others AIR 2006 SC 2038, observed that there has to be balance between sustainable development and environment. This Court observed that before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment; State Industrial Areas Development Board to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the land is allotted for development. The said directory condition of allotment of lands be converted into a mandatory condition for all the projects to be sanctioned in future.

98. In another important decision of this Court in the case of M.C. Mehta v. Kamal Nath & Others (2000) 6 SCC 213, this Court was of the opinion that Articles 48A and 51-A(g) have to be considered in the light of Article 21 of the Constitution. Any disturbance of the basic environment elements, namely air, water and soil, which are necessary for “life”, would be hazardous to “life” within the meaning of Article 21. In the matter of enforcement of rights under Article 21, this Court, besides enforcing the provisions of the Acts referred to above, has also given effect to Fundamental Rights under Articles 14 and 21 and has held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. In order to protect the “life”, in order to protect “environment” and in order to protect “air, water and soil” from pollution, this Court, through its various judgments has given effect to the rights available, to the citizens and persons alike, under Article 21.

99. The court also laid emphasis on the principle of Polluter-pays. According to the court, pollution is a civil wrong. It is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages or compensation for restoration of the environment and ecology.

100. In Managing Director, A.P.S.R.T.C. v. S. P. Satyanarayana AIR 1998 SC 2962, this Court referred to the White Paper published by the Government of India that the vehicular pollution contributes 70% of the air pollution as compared to 20% in 1970. This Court gave comprehensive directions to reduce the air pollution on the recommendation of an Expert Committee of Bhure Lal appointed by this Court.

101. In Re. Noise Pollution AIR 2005 SC 3136, this Court was dealing with the issue of noise pollution. This Court was of the opinion that there is need for creating general awareness towards the hazardous effects of noise pollution. Particularly, in our country the people generally lack consciousness of the ill effects which noise pollution creates and how the society including they themselves stand to benefit by preventing generation and emission of noise pollution.

102. In Indian Council for Enviro-Legal Action v. Union of India & Others (1996) 5 SCC 281 the main grievance in the petition is that a notification dated 19.2.1991 declaring coastal stretches as Coastal Regulation Zones which regulates the activities in the said zones has not been implemented or enforced. This has led to continued degradation of ecology in the said coastal areas. The court observed that while economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment.

103. In S. Jagannath v. Union of India & Others (1997) 2 SCC 87, this Court dealt with a public interest petition filed by the Gram Swaraj Movement, a voluntary organization working for the upliftment of the weaker section of society, wherein the petitioner sought the enforcement of Coastal Zone Regulation Notification dated 19.2.1991 and stoppage of intensive and semi-intensive type of prawn farming in the ecologically fragile coastal areas. This Court passed significant directions as under:

1. The Central Government shall constitute an authority conferring on the said authority all the powers necessary to protect the ecologically fragile coastal areas, seashore, waterfront and other coastal areas and specially to deal with the situation created by the shrimp culture industry in coastal States.

2. The authority so constituted by the Central Government shall implement “the Precautionary principle” and “the Polluter Pays”principles.

3. The shrimp culture industry/the shrimp ponds are covered by the prohibition contained in para 2(i) of the CRZ Notification. No shrimp culture pond can be constructed or set up within the coastal regulation zone as defined in the CRZ notification. This shall be applicable to all seas, bays, estuaries, creeks rivers and backwaters. This direction shall not apply to traditional and improved traditional types of technologies (as defined in Alagarswami report) which are practised in the coastal low lying areas.

4. All acquaculture industries/shrimp culture industries/shrimp culture ponds operating/set up in the coastal regulation zone as defined under the CRZ Notification shall be demolished and removed from the said area before March 31, 1997.

5. The agricultural lands, salt pan lands, mangroves, wet lands, forest lands, land for village common purpose and the land meant for public purposes shall not be used/converted for construction of the shrimp culture ponds.

6. No acquaculture industry/shrimp culture industry/shrimp culture ponds shall be constructed/set up within 1000 meter of Chilka lake and Pulicat lake (including Bird Sanctuaries namely Yadurapattu and Nelapattu).

7. Acquaculture industry/shrimp culture industry/shrimp culture ponds already operating and functioning in the said area of 1000 meter shall be closed and demolished before March 31, 1997.

8. The Court also directed that the shrimp industries functioning within 1000 meter from the Coastal Regulation Zone shall be liable to compensate the affected persons on the basis of the “polluter pays” principle.

9. The authority was directed to compute the compensation under two heads namely, for reversing the ecology and for payment to individuals.

10. The compensation amount recovered from the polluters shall be deposited under a separate head called “Environment Protection Fund” and shall be utilised for compensating the affected persons as identified by the authority and also for restoring the damaged environment.

104. The Court also granted substantial costs to the petitioners.

105. The courts because of vast destruction of environment, ecology, forests, marine life, wildlife etc. etc. gave directions in a large number of cases in the larger public interest. The courts made a serious endeavour to protect and preserve ecology, environment, forests, hills, rivers, marine life, wildlife etc. etc. This can be called the second phase of the public interest litigation in India.

THE TRANSPARENCY AND PROBITY IN GOVERNANCE – PHASE-III OF THE PUBLIC INTERST LITIGATION

106. In the 1990’s, the Supreme Court expanded the ambit and scope of public interest litigation further. The High Courts also under Article 226 followed the Supreme Court and passed a number of judgments, orders or directions to unearth corruption and maintain probity and morality in the governance of the State. The probity in governance is a sine qua non for an efficient system of administration and for the development of the country and an important requirement for ensuring probity in governance is the absence of corruption. This may broadly be called as the third phase of the Public Interest Litigation. The Supreme Court and High Courts have passed significant orders.

107. The case of Vineet Narain & Others v. Union of India & Another AIR 1998 SC 889 is an example of its kind. In that case, the petitioner, who was a journalist, filed a public interest litigation. According to him, the prime investigating agencies like the Central Bureau of Investigation and the Revenue authorities failed to perform their legal obligation and take appropriate action when they found, during investigation with a terrorist, detailed accounts of vast payments, called ‘Jain diaries’, made to influential politicians and bureaucrats and direction was also sought in case of a similar nature that may occur hereafter. A number of directions were issued by the Supreme Court. The Court in that case observed that “it is trite that the holders of public offices are entrusted with certain power to be exercised in public interest alone and, therefore, the office is held by them in trust for the people.”

108. Another significant case is Rajiv Ranjan Singh ‘Lalan’ & Another v. Union of India & Others (2006) 6 SCC 613. This public interest litigation relates to the large scale defalcation of public funds and falsification of accounts involving hundreds of crores of rupees in the Department of Animal Husbandry in the State of Bihar. It was said that the respondents had interfered with the appointment of the public prosecutor. This court gave significant directions in this case.

109. In yet another case of M. C. Mehta v. Union of India & Others (2007) 1 SCC 110, a project known as “Taj Heritage Corridor Project” was initiated by the Government of Uttar Pradesh. One of the main purpose for which the same was undertaken was to divert the River Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal and use the reclaimed land for constructing food plazas, shops and amusement activities. The Court directed for a detailed enquiry which was carried out by the Central Bureau of Investigation (CBI). On the basis of the CBI report, the Court directed registration of FIR and made further investigation in the matter. The court questioned the role played by the concerned Minister for Environment, Government of Uttar Pradesh and the Chief Minister, Government of Uttar Pradesh. By the intervention of this Court, the said project was stalled.

110. These are some of the matters where the efficacy, ethics and morality of the governmental authorities to perform their statutory duties was directed under the scanner of the Supreme Court and the High Courts.

111. In M. C. Mehta v. Union of India & Others (2007) 12 SCALE 91, in another public interest litigation, a question was raised before the court whether the Apex Court should consider the correctness of the order passed by the Governor of Uttar Pradesh refusing to grant sanction for prosecution of the Chief Minister and Environment Minister after they were found responsible in ‘Taj Heritage Corridor Project”. It was held that the judiciary can step in where it finds the actions on the part of the legislature or the executive to be illegal or unconstitutional.

112. In Centre for Public Interest Litigation v. Union of India & Another AIR 2003 SC 3277, two writ petitions were filed in public interest by the petitioner calling in the question of decision of the government to sell majority of shares in Hindustan Petroleum Corporation Limited and Bharat Petroleum Corporation Limited to private parties without Parliamentary approval or sanction as being contrary to and violative of the provisions of the ESSO (Acquisition of Undertaking in India) Act, 1974, the Burma Shell (Acquisition of Undertaking in India) Act, 1976 and Caltex (Acquisition of Shares of Caltex Oil Refining India Limited and all the undertakings in India for Caltex India Limited) Act, 1977. The court upheld the petitions until the statutes are amended appropriately.

113. These are some of the cases where the Supreme Court and the High Courts broadened the scope of public interest litigation and also entertained petitions to ensure that in governance of the State, there is transparency and no extraneous considerations are taken into consideration except the public interest. These cases regarding probity in governance or corruption in public life dealt with by the courts can be placed in the third phase of public interest litigation.

114. We would also like to deal with some cases where the court gave direction to the executives and the legislature to ensure that the existing laws are fully implemented.

115. In Pareena Swarup v. Union of India (2008) 13 SCALE 84, a member of the Bar of this court filed a public interest litigation seeking to declare various sections of the Prevention of Money Laundering Act, 2002 as ultra vires to the Constitution as they do not provide for independent judiciary to decide the cases but the members and chairperson to be selected by the Selection Committee headed by the Revenue Secretary. According to the petitioner, following the case of L. Chandrakumar v. Union of India & Others (1997) 3 SCC 261 undermines separation of powers as envisaged by the Constitution.

116. We have endeavoured to give broad picture of the public interest litigation of Ist, IInd and IIIrd phases decided by our courts.

117. We would briefly like to discuss evolution of the public interest litigation in other judicial systems.

EVOLUTION OF PUBLIC INTERST LITIGATION IN OTHER JUDICIAL SYSTEMS NAMELY, USA, U.K., AUSTRALIA AND SOUTH AFRICA. AUSTRALIA

118. In Australia also for protecting environment, the Australian court has diluted the principle of ‘aggrieved person’.

119. In Australia, Public Interest Litigation has been a method of protecting the environment. The courts have not given a definition of ‘Public Interest Litigation’, but in Oshlack v Richmond River Council (1998) 193 CLR 72 : (1998) 152 ALR 83, the High Court of Australia (apex court) upheld the concept and pointed out the essential requirements. McHugh J., quoted Stein J., from the lower court: “In summary I find the litigation to be properly characterised as public interest litigation. The basis of the challenge was arguable, raising serious and significant issues resulting in important interpretation of new provisions relating to the protection of endangered fauna. The application concerned a publicly notorious site amidst continuing controversy. Mr. Oshlack had nothing to gain from the litigation other than the worthy motive of seeking to uphold environmental law and the preservation of endangered fauna.”

120. To the court it was important that the petitioner did not have any other motive than the stated one of protecting the environment. The test therefore in Australia seems to be that the petitioner when filing a public interest litigation, should not stand to gain in some way.

U.S.A.

121. The US Supreme Court realized the constitutional obligation of reaching to all segments of society particularly the black Americans of African origin. The courts’ craftsmanship and innovation is reflected in one of the most celebrated path-breaking judgment of the US Supreme Court in Oliver Brown v. Board of Education of Topeka 347 U.S. 483, 489-493 (1954). Perhaps, it would accomplish the constitutional obligation and goal. In this case, the courts have carried out their own investigation and in the judgment it is observed that “Armed with our own investigation” the courts held that all Americans including Americans of African origin can study in all public educational institutions. This was the most significant development in the history of American judiciary.

122. The US Supreme Court dismissed the traditional rule of Standing in Association of Data Processing Service Organizations v. William B. Camp 397 U.S. 150 (1970). The court observed that a plaintiff may be granted standing whenever he/she suffers an “injury in fact” – “economic or otherwise”.

123. In another celebrated case Olive B. Barrows v. Leola Jackson 346 U.S. 249 (1953), 73 S.Ct. 1031 the court observed as under:-

“But in the instant case, we are faced with a unique situation in which it is the action of the state court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court. Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another’s rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained.”

124. In environment cases, the US Supreme Court has diluted the stance and allowed organizations dedicated to protection of environment to fight cases even though such societies are not directly armed by the action.

125. In United States v. Students Challenging Regulatory Agency Procedures (SCRAP) 412 US 669 (1973), the court allowed a group of students to challenge the action of the railroad which would have led to environmental loss.

126. In Paul J. Trafficante v. Metropolitan Life Insurance Company 409 U.S. 205 (1972) the Court held that a landlord’s racially discriminatory practices towards non-whites inflicted an injury in fact upon the plaintiffs, two tenants of an apartment complex, by depriving them of the “social benefits of living in an integrated community.”

127. Similarly, the Supreme Court of the United States has granted standing in certain situations to a plaintiff to challenge injuries sustained by a third party with whom he/she shares a “close” relationship.

128. In Thomas E. Singleton v. George J. L. Wulff 428 U.S. 106 (1976), the Court granted standing to two physicians challenging the constitutionality of a state statute limiting abortions. Similarly, in Caplin v. Drysdale 491 U.S. 617, 623-24 n. 3 (1989), the Court granted standing to an attorney to challenge a drug forfeiture law that would deprive his client of the means to retain counsel.

129. The Supreme Court has also granted organizational standing. In Robert Warth v. Ira Seldin 422 U.S. 490, 511 (1975), the Court declared that “even in the absence of injury to itself, an association may have standing solely as the representative of its members.” This judgment had far reaching consequence. In James B. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977), the Court elaborated the parameters for organizational standing where an organization or association “has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit”.

ENGLAND

130. The use of PIL in England has been comparably limited.
The limited development in PIL has occurred through broadening
the rules of standing.

Broad Rules of Standing

131. In Re. Reed, Bowen & Co. (1887) 19 QBD 174 to facilitate vindication of public interest, the English judiciary prescribed broad rules of standing. Under the traditional rule of standing, judicial redress was only available to a ‘person aggrieved’ – one “who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.” However, the traditional rule no longer governs standing in the English Courts.

132. One of the most distinguished and respected English Judge Lord Denning initiated the broadening of standing in the English Courts with his suggestion that the “words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation.” – Attorney-General of the Gambia v. Pierre Sarr N’Jie (1961) AC 617.

133. The Blackburn Cases broadened the rule of standing in actions seeking remedy through prerogative writs brought by individuals against public officials for breach of a private right. (e.g., mandamus, prohibition, and certiorari). Under the Blackburn standard, “any person who was adversely affected” by the action of a government official in making a mistaken policy decision was eligible to be granted standing before the Court for seeking remedy through prerogative writs – Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 W.L.R. 893 (“Blackburn I”).

134. In Blackburn I, the Court of Appeal granted standing to Blackburn to seek a writ of mandamus to compel the Police Commissioner to enforce a betting and gambling statute against gambling clubs.

135. In Blackburn II, the Court of Appeal found no defects in Blackburn’s standing to challenge the Government’s decision to join a common market. Blackburn v. Attorney-General [1971] 1 W.L.R. 1037).

136. In Blackburn III, the Court of Appeal granted standing to Blackburn to seek a writ of mandamus to compel the Metropolitan Police to enforce laws against obscene publications. Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1973] Q.B. 241.

137. In Blackburn IV, the Court of Appeal granted standing to Blackburn to seek a writ of prohibition directed at the Greater London Council for failing to properly use their censorship powers with regard to pornographic films. Regina v. Greater London Council ex parte. Blackburn [1976] 1 W.L.R. 550.

138. The English judiciary was hesitant in applying this broadened rule of standing to actions seeking remedy through relator claims – Relator claims are remedies brought by the Attorney General to remedy a breach of a public right. (e.g., declaration and injunction). Initially, Lord Denning extended the broadened rule of standing in actions seeking remedy through prerogative writs to actions seeking remedy through relator claims. In Attorney General Ex rel McWhirter v. Independent Broadcasting Authority, (1973) Q.B. 629 the Court stipulated that, “in the last resort, if the Attorney-General refuses leave in a proper case, or improperly or unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public who has a sufficient interest can himself apply to the court.” This rule was promptly overturned by the House of Lords in Gouriet v. Union of Post Office Workers [1978] A.C. 435. In this case, the House of Lords held that in relator claims, the Attorney General holds absolute discretion in deciding whether to grant leave to a case. Thus, the English judiciary did not grant standing to an individual seeking remedy through relator claims.

139. Finally, an amendment to the Rules of the Supreme Court in 1978 through Order 53 overcame the English judiciary’s hesitation in applying a broadened rule of standing to relator claims. Order 53 applied the broadened rule of standing to both actions seeking remedy through prerogative writs and actions seeking remedy through relator claims. Rule 3(5) of Order 53 stipulates that the Court shall not grant leave for judicial review “unless it considers that the applicant has a sufficient interest in the matter to which the applicant relates.” – ORDER 53, RULES OF THE SUPT. CT. (1981). In Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617, the Court explained that “fairness and justice are tests to be applied” when determining if a party has a sufficient interest.

140. In Regina v. Secretary of State for the Environment, Ex parte Rose Theatre Trust Co. (1990) 1 Q.B. 504, the Court elaborated that “direct financial or legal interest is not required” to find sufficient interest. Thus, under the new rule of standing embodied in Order 53, individuals can challenge actions of public officials if they are found to have “sufficient interest” – a flexible standard.

SOUTH AFRICA

141. The South African Constitution has adopted with a commitment to “transform the society into one in which there will be human dignity, freedom and equality.” – See: Soobramoney v. Minister of Health, KwaZulu-Natal, 1998 (1) SA 765 (CC), p. 5. Thus, improving access to justice falls squarely within the mandate of this Constitution. In furtherance of this objective, the South African legal framework takes a favorable stance towards PIL by prescribing broad rules of standing and relaxing pleading requirements. (A) Broad Rules of Standing

142. Section 38 of the Constitution broadly grants standing to approach a competent court for allegations of infringement of a right in the bill of rights to:
“(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of persons;
(d) anyone acting in the public interest;
(e) an association acting in the interest of its members.”

143. In expressly permitting class actions and third-party actions, Section 38 prescribes broad rules of standing for constitutional claims. Interpreting the language of Section 38, the Constitutional Court elaborated in Ferreira v. Levin NO & Others 1996 (1) SA 984 (CC), p. 241 that a broad approach to standing should be applied to constitutional claims to ensure that constitutional rights are given the full measure of protection to which they are entitled. In the said judgment by a separate concurring judgment, Justice O’Regan suggested that a “wider net for standing” should be extended to all “litigation of a public character.” (B) Relaxing Formal Requirements of Pleadings

144. The Constitutional Court has been prompt to relax formal pleading requirements in appropriate cases. In S v. Twala (South African Human Rights Commission Intervening), 2000 (1) SA 879, the President of the Court directed that a hand written letter received from a prisoner complaining about his frustration in exercising his right to appeal be treated as an application for leave to appeal.

145. In Xinwa & Others v. Volkswagen of South Africa (PTY) Ltd. 2003 (4) SA 390 (CC), p. 8 the Court cemented the Twala principle that “form must give way to substance” in public interest litigation. The Court explained that “pleadings prepared by lay persons must be construed generously and in the light most favourable to the litigant. Lay litigants should not be held to the same standard of accuracy, skill and precision in the presentation of their case required of lawyers. In construing such pleadings, regard must be had to the purpose of the pleading as gathered not only from the content of the pleadings but also from the context in which the pleading is prepared.”

IMPACT OF PUBLIC INTEREST LITIGATION ON NEIGHBOURING COUNTRIES

146. The development of public interest litigation in India has had an impact on the judicial systems of neighbouring countries like Bangladesh, Sri Lanka, Nepal and Pakistan and other countries.

PAKISTAN

147. By a recent path-breaking historical judgment of the Pakistan Supreme Court at Islamabad dated 31st July, 2009 delivered in public interest litigation bearing Constitution Petition No.9 of 2009 filed by Sindh High Court Bar Association through its Secretary and Constitution Petition No.8 of 2009 filed by Nadeem Ahmed Advocate, both petitions filed against Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad & Others, the entire superior judiciary which was sacked by the previous political regime has now been restored.

148. Another path breaking judgment delivered very recently on 16th December, 2009 by all the 17 judges of the Pakistan Supreme Court in Constitution Petition Nos.76 to 80 of 2007 and 59 of 2009 and another Civil Appeal No.1094 of 2009 also has far-reaching implications.

149. In this judgment, the National Reconciliation Ordinance (No.XV) 2007 came under challenge by which amendments were made in the Criminal Procedure Code, 1898 and the Representation of the People Act, 1976 and the National Accountability Ordinance of 1999. The National Accountability Ordinance, 1999 (for short, NAO) was designed to give immunity of the consequences of the offences committed by the constitutional authorities and other authorities in power and (NRO) was declared void ab initio being ultra vires and violative of constitutional provisions including 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution. This judgment was also delivered largely in public interest.

150. In an important judgment delivered by the Supreme Court of Pakistan in General Secrerary, West Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mneral Development, Punjab, Lahore reported in 1994 SCMR 2061 (Supreme Court of Pakistan) in Human Right Case No.120 of 1993 on 12th July, 1994 gave significant directions largely based on the judgments of this court.

151. The petitioners in the said petition sought enforcement of the rights of the residents to have clean and unpolluted water. Their apprehension was that in case the miners are allowed to continue their activities, which are extended in the water catchment area, the watercourse, reservoir and the pipelines would get contaminated. According to the court, water has been considered source of life in this world. Without water there can be no life. History bears testimony that due to famine and scarcity of water, civilization have vanished, green lands have turned into deserts and arid goes completely destroying the life not any of human being, but animal life as well. Therefore, water, which is necessary for existence of life, if polluted, or contaminated, will cause serious threat to human existence.

152. The court gave significant directions including stopping the functioning of factory which created pollution and environmental degradation.

153. Another significant aspect which has been decided in this case was to widen the definition of the ‘aggrieved person’. The court observed that in public interest litigation, procedural trappings and restrictions of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the court. The Supreme Court also observed that the Court has vast power under Article 183(3) to investigate into question of fact as well independently by recording evidence.

154. In another important case Ms. Shehla Zia v. WAPDA PLD 1994 Supreme Court 693, a three-Judge Bench headed by the Chief Justice gave significant directions. In the said petition four residents of Street No. 35,F-6/1, Islamabad protested to WAPDA against construction of a grid station in F-6/1, Islamabad. A letter to this effect was written to the Chairman on 15.1.1992 conveying the complaint and apprehensions of the residents of the area in respect of construction of a grid station allegedly located in the greenbelt of a residential locality. They pointed out that the electromagnetic field by the presence of the high voltage transmission lines at the grid station would pose a serious health hazard to the residents of the area particularly the children, the infirm and the Dhobi-ghat families that live; the immediate vicinity. The presence of electrical installations and transmission lines would also be highly dangerous to the citizens particularly the children who play outside in the area. It would damage the greenbelt and affect the environment. It was also alleged that it violates the principles of planning in Islamabad where the green belts are considered an essential component of the city for environmental and aesthetic reasons.

155. The Supreme Court observed that where life of citizens
is degraded, the quality of life is adversely affected and
health hazards created are affecting a large number of people.
The Supreme Court in exercise of its jurisdiction may grant
relief to the extent of stopping the functioning of such units
that create pollution and environmental degradation.

SRI LANKA

156. There has been great impact of Public Interest Litigation on other countries. In Bulankulama and six others v. Secretary, Ministry of Industrial Development and seven others (Eppawala case), the Supreme Court of Sri Lanka gave significant directions in public interest litigation. In the said case, Mineral Investment Agreement was entered between the Government and the private company for rapid exploitation of rock phosphate reserves at Eppawala in Sri Lanka’s agriculture rich North Central Province – High intensity mining operation plus establishment of a processing plant on Trincomalee coast was set up which would produce phosphoric and sulphuric acid. Six residents of the area of whose agricultural lands stood to be affected filed a petition before the court in public interest. It was stated in the petition that the project was not for a public purpose but for the benefit of a private company and would not bring substantial economic benefit to Sri Lanka. The petitioners claimed imminent infringement of their fundamental rights under various provisions of the Constitution. The court invoked the public trust theory as applied in the United States and in our country in the case of M.C. Mehta v. Kamal Nath (1997) 1 SCC 388. The court upheld the petitioners’ fundamental rights. The respondents were restrained from entering into any contract relating to the Eppawala phosphate deposit. The court allowed the petition and the respondents were directed to give costs to the petitioners. The Supreme Court of Sri Lanka protected environmental degradation by giving important directions in this case.

NEPAL

157. A three-Judge Bench of the Supreme Court of Nepal in Surya Prasad Sharma Dhungle v. Godawari Marble Industries in writ petition No.35 of 1992 passed significant directions. It was alleged in the petition that Godawari Marble Industries have been causing serious environmental degradation to Godawari forest and its surrounding which is rich in natural grandeur and historical and religious enshrinement are being destroyed by the respondents. In the petition it was mentioned that the illegal activities of the respondent Godawari Marble Industries have caused a huge public losses.

158. The Supreme Court of Nepal gave significant directions to protect degradation of environment and ecology. The court adopted the concept of sustainable development.

159. The Indian courts may have taken some inspiration from the group or class interest litigation of the United States of America and other countries but the shape of the public interest litigation as we see now is predominantly indigenously developed jurisprudence.

160. The public interest litigation as developed in various facets and various branches is unparalleled. The Indian Courts by its judicial craftsmanship, creativity and urge to provide access to justice to the deprived, discriminated and otherwise vulnerable sections of society have touched almost every aspect of human life while dealing with cases filed in the label of the public interest litigation. The credibility of the superior courts of India has been tremendously enhanced because of some vital and important directions given by the courts. The courts’ contribution in helping the poorer sections of the society by giving new definition to life and liberty and to protect ecology, environment and forests are extremely significant.

ABUSE OF THE PUBLIC INTEREST LITIGATION:

161. Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged.

162. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and nonmonetary directions by the courts.

163. In BALCO Employees’ Union (Regd.) v. Union of India & Others AIR 2002 SC 350, this Court recognized that there have been, in recent times, increasing instances of abuse of public interest litigation. Accordingly, the court has devised a number of strategies to ensure that the attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. Firstly, the Supreme Court has limited standing in PIL to individuals “acting bonafide.” Secondly, the Supreme Court has sanctioned the imposition of “exemplary costs” as a deterrent against frivolous and vexatious public interest litigations. Thirdly, the Supreme Court has instructed the High Courts to be more selective in entertaining the public interest litigations. 164. In S. P. Gupta’s case (supra), this Court has found that this liberal standard makes it critical to limit standing to individuals “acting bona fide. To avoid entertaining frivolous and vexatious petitions under the guise of PIL, the Court has excluded two groups of persons from obtaining standing in PIL petitions. First, the Supreme Court has rejected awarding standing to “meddlesome interlopers”. Second, the Court has denied standing to interveners bringing public interest litigation for personal gain.

165. In Chhetriya Pardushan Mukti Sangharsh Samiti (supra), the Court withheld standing from the applicant on grounds that the applicant brought the suit motivated by enmity between the parties. Thus, the Supreme Court has attempted to create a body of jurisprudence that accords broad enough standing to admit genuine PIL petitions, but nonetheless limits standing to thwart frivolous and vexations petitions.

166. The Supreme Court broadly tried to curtail the frivolous public interest litigation petitions by two methods – one monetary and second, non-monetary. The first category of cases is that where the court on filing frivolous public interest litigation petitions, dismissed the petitions with exemplary costs. In Neetu v. State of Pubjab & Others AIR 2007 SC 758, the Court concluded that it is necessary to impose exemplary costs to ensure that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.

167. In S.P. Anand v. H.D. Deve Gowda & Others AIR 1997 SC 272, the Court warned that it is of utmost importance that those who invoke the jurisdiction of this Court seeking a waiver of the locus standi rule must exercise restraint in moving the Court by not plunging in areas wherein they are not well-versed.

168. In Sanjeev Bhatnagar v. Union of India & Others AIR 2005 SC 2841, this Court went a step further by imposing a monetary penalty against an Advocate for filing a frivolous and vexatious PIL petition. The Court found that the petition was devoid of public interest, and instead labelled it as “publicity interest litigation.” Thus, the Court dismissed the petition with costs of Rs.10,000/-.

169. Similarly, in Dattaraj Nathuji Thaware v. State of Maharashtra & Others (2005) 1 SCC 590, the Supreme Court affirmed the High Court’s monetary penalty against a member of the Bar for filing a frivolous and vexatious PIL petition. This Court found that the petition was nothing but a camouflage to foster personal dispute. Observing that no one should be permitted to bring disgrace to the noble profession, the Court concluded that the imposition of the penalty of Rs. 25,000 by the High Court was appropriate. Evidently, the Supreme Court has set clear precedent validating the imposition of monetary penalties against frivolous and vexatious PIL petitions, especially when filed by Advocates.

170. This Court, in the second category of cases, even passed harsher orders. In Charan Lal Sahu & Others v. Giani Zail Singh & Another AIR 1984 SC 309, the Supreme Court observed that, “we would have been justified in passing a heavy order of costs against the two petitioners” for filing a “light-hearted and indifferent” PIL petition. However, to prevent “nipping in the bud a well-founded claim on a future occasion,” the Court opted against imposing monetary costs on the petitioners.” In this case, this Court concluded that the petition was careless, meaningless, clumsy and against public interest. Therefore, the Court ordered the Registry to initiate prosecution proceedings against the petitioner under the Contempt of Courts Act. Additionally, the court forbade the Registry from entertaining any future PIL petitions filed by the petitioner, who was an advocate in this case.

171. In J. Jayalalitha v. Government of Tamil Nadu & Others (1999) 1 SCC 53, this court laid down that public interest litigation can be filed by any person challenging the misuse or improper use of any public property including the political party in power for the reason that interest of individuals cannot be placed above or preferred to a larger public interest.

172. This court has been quite conscious that the forum of this court should not be abused by any one for personal gain or for any oblique motive.

173. In BALCO (supra), this court held that the jurisdiction is being abused by unscrupulous persons for their personal gain. Therefore, the court must take care that the forum be not abused by any person for personal gain.

174. In Dattaraj Nathuji Thaware (supra), this court expressed its anguish on misuse of the forum of the court under the garb of public interest litigation and observed that the public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The court must not allow its process to be abused for oblique considerations.

175. In Thaware’s case (supra), the Court encouraged the imposition of a non-monetary penalty against a PIL petition filed by a member of the bar. The Court directed the Bar Councils and Bar Associations to ensure that no member of the Bar becomes party as petitioner or in aiding and/or abetting files frivolous petitions carrying the attractive brand name of Public Interest Litigation. This direction impels the Bar Councils and Bar Associations to disbar members found guilty of filing frivolous and vexatious PIL petitions.

176. In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra & Others AIR 2008 SC 913, this Court observed as under: ‘It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, the time which otherwise could have been spent for disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy, whose fundamental rights are infringed and violated and whose grievances go unnoticed, un-represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters -government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the Courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system.”

The Court cautioned by observing that: “Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta.

xxx xxx xxx
xxx xxx xxx

The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico though they have no interest of the public or even of their own to protect.”

177. The malice of frivolous and vexatious petitions did not originate in India. The jurisprudence developed by the Indian judiciary regarding the imposition of exemplary costs upon frivolous and vexatious PIL petitions is consistent with jurisprudence developed in other countries. U.S. Federal Courts and Canadian Courts have also imposed monetary penalties upon public interest claims regarded as frivolous. The courts also imposed non-monetary penalties upon Advocates for filing frivolous claims. In Everywoman’s Health Centre Society v. Bridges 54 B.C.L.R. (2nd Edn.) 294, the British Columbia Court of Appeal granted special costs against the Appellants for bringing a meritless appeal.

178. U.S. Federal Courts too have imposed monetary penalties against plaintiffs for bringing frivolous public interest claims. Rule 11 of the Federal Rules of Civil Procedure (“FRCP”) permits Courts to apply an “appropriate sanction” on any party for filing frivolous claims. Federal Courts have relied on this rule to impose monetary penalties upon frivolous public interest claims. For example, in Harris v. Marsh 679 F.Supp. 1204 (E.D.N.C. 1987), the District Court for the Eastern District of North Carolina imposed a monetary sanction upon two civil rights plaintiffs for bringing a frivolous, vexatious, and meritless employment discrimination claim. The Court explained that “the increasingly crowded dockets of the federal courts cannot accept or tolerate the heavy burden posed by factually baseless and claims that drain judicial resources.” As a deterrent against such wasteful claims, the Court levied a cost of $83,913.62 upon two individual civil rights plaintiffs and their legal counsel for abusing the judicial process. Case law in Canadian Courts and U.S. Federal Courts exhibits that the imposition of monetary penalties upon frivolous public interest claims is not unique to Indian jurisprudence.

179. Additionally, U.S. Federal Courts have imposed nonmonetary penalties upon Attorneys for bringing frivolous claims. Federal rules and case law leave the door open for such non-monetary penalties to be applied equally in private claims and public interest claims. Rule 11 of the FRCP additionally permits Courts to apply an “appropriate sanction” on Attorneys for filing frivolous claims on behalf of their clients. U.S. Federal Courts have imposed non-monetary sanctions upon Attorneys for bringing frivolous claims under Rule 11.

180. In Frye v. Pena 199 F.3d 1332 (Table), 1999 WL 974170, for example, the United States Court of Appeals for the Ninth Circuit affirmed the District Court’s order to disbar an Attorney for having “brought and pressed frivolous claims, made personal attacks on various government officials in bad faith and for the purpose of harassment, and demonstrated a lack of candor to, and contempt for, the court.” This judicial stance endorses the ethical obligation embodied in Rule 3.1 of the Model Rules of Professional Conduct (“MRPC”): “a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” Together, the FRCP, U.S. federal case law, and the MRPC endorse the imposition of non-monetary penalties upon attorneys for bringing frivolous private claims or public interest claims.

181. In Bar Council of Maharashtra (supra) this court was apprehensive that by widening the legal standing there may be flood of litigation but loosening the definition is also essential in the larger public interest. To arrest the mischief is the obligation and tribute to the judicial system. 182. In SP Gupta (supra) the court cautioned that important jurisdiction of public interest litigation may be confined to legal wrongs and legal injuries for a group of people or class of persons. It should not be used for individual wrongs because individuals can always seek redress from legal aid organizations. This is a matter of prudence and not as a rule of law.

183. In Chhetriya Pardushan Mukti Sangharsh Samiti (supra) this court again emphasized that Article 32 is a great and salutary safeguard for preservation of fundamental rights of the citizens. The superior courts have to ensure that this weapon under Article 32 should not be misused or abused by any individual or organization.

184. In Janata Dal v. H.S. Chowdhary & Others (1992) 4 SCC 305, the court rightly cautioned that expanded role of courts in modern ‘social’ state demand for greater judicial responsibility. The PIL has given new hope of justice-starved millions of people of this country. The court must encourage genuine PIL and discard PIL filed with oblique motives. 185. In Guruvayur Devaswom Managing Committee & Another v. C.K. Rajan & Others (2003) 7 SCC 546, it was reiterated that the court must ensure that its process is not abused and in order to prevent abuse of the process, the court would be justified in insisting on furnishing of security before granting injunction in appropriate cases. The courts may impose heavy costs to ensure that judicial process is not misused.

186. In Dattaraj Nathuji Thaware (supra) this court again cautioned and observed that the court must look into the petition carefully and ensure that there is genuine public interest involved in the case before invoking its jurisdiction. The court should be careful that its jurisdiction is not abused by a person or a body of persons to further his or their personal causes or to satisfy his or their personal grudge or grudges. The stream of justice should not be allowed to be polluted by unscrupulous litigants.

187. In Neetu (supra) this court observed that under the guise of redressing a public grievance the public interest litigation should not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature.

188. In M/s. Holicow Pictures Pvt. Ltd. (supra) this court observed that the judges who exercise the jurisdiction should be extremely careful to see that behind the beautiful veil of PIL, an ugly private malice, vested interest and/or publicityseeking is not lurking. The court should ensure that there is no abuse of the process of the court.

189. When we revert to the facts of the present then the conclusion is obvious that this case is a classic case of the abuse of the process of the court. In the present case a practicing lawyer has deliberately abused the process of the court. In that process, he has made a serious attempt to demean an important constitutional office. The petitioner ought to have known that the controversy which he has been raising in the petition stands concluded half a century ago and by a Division Bench judgment of Nagpur High Court in the case of Karkare (supra) the said case was approved by a Constitution Bench of this court. The controversy involved in this case is no longer res integra. It is unfortunate that even after such a clear enunciation of the legal position, a large number of similar petitions have been filed from time to time in various High Courts. The petitioner ought to have refrained from filing such a frivolous petition.

190. A degree of precision and purity in presentation is a sine qua non for a petition filed by a member of the Bar under the label of public interest litigation. It is expected from a member of the Bar to at least carry out the basic research whether the point raised by him is res integra or not. The lawyer who files such a petition cannot plead ignorance.

191. We would like to make it clear that we are not saying that the petitioner cannot ask the court to review its own judgment because of flaws and lacunae, but that should have been a bona fide presentation with listing of all relevant cases in a chronological order and that a brief description of what judicial opinion has been and cogent and clear request why where should be re-consideration of the existing law. Unfortunately, the petitioner has not done this exercise. The petition which has been filed in the High Court is a clear abuse of the process of law and we have no doubt that the petition has been filed for extraneous considerations. The petition also has the potentiality of demeaning a very important constitutional office. Such petition deserves to be discarded and discouraged so that no one in future would attempt to file a similar petition.

192. On consideration of the totality of the facts and circumstances of the case, we allow the appeals filed by the State and quash the proceedings of the Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001 filed in the Uttaranchal High Court. We further direct that the respondents (who were the petitioners before the High Court) to pay costs of Rs.1,00,000/- (Rupees One Lakh) in the name of Registrar General of the High court of Uttarakhand. The costs to be paid by the respondents within two months. If the costs is not deposited within two months, the same would be recovered as the arrears of the Land Revenue.

193. We request the Hon’ble Chief Justice of Uttrakhand High Court to create a fund in the name of Uttarakhand High Court Lawyers Welfare Fund if not already in existence. The fund could be utilized for providing necessary help to deserving young lawyers by the Chief Justice of Uttarakhand in consultation with the President of the Bar.

194. We must abundantly make it clear that we are not discouraging the public interest litigation in any manner, what we are trying to curb is its misuse and abuse. According to us, this is a very important branch and, in a large number of PIL petitions, significant directions have been given by the courts for improving ecology and environment, and directions helped in preservation of forests, wildlife, marine life etc. etc. It is the bounden duty and obligation of the courts to encourage genuine bona fide PIL petitions and pass directions and orders in the public interest which are in consonance with the Constitution and the Laws.

195. The Public Interest Litigation, which has been in existence in our country for more than four decades, has a glorious record. This Court and the High Courts by their judicial creativity and craftsmanship have passed a number of directions in the larger public interest in consonance with the inherent spirits of the Constitution. The conditions of marginalized and vulnerable section of society have significantly improved on account of courts directions in the P.I.L.

196. In our considered view, now it has become imperative to streamline the P.I.L.

197. We have carefully considered the facts of the present case. We have also examined the law declared by this court and other courts in a number of judgments.

198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:-
(1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary-General of this court immediately thereafter.
(3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L.
(4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. 199. Copies of this judgment be sent to the Registrar Generals of all the High Courts within one week. 200. These appeals are listed on 03.05.2010 to ensure compliance of our order.

……..J.
(Dalveer Bhandari)

……..J.
(Dr. Mukundakam Sharma)

New Delhi;
January 18, 2010.

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