Across the Aisle by P Chidambaram: Dagger to the Heart of Freedom


In Selvi v State of Karnataka (a three-judge judgment of May 5, 2010), the Supreme Court considered the constitutional validity of three tests performed against a person’s will: narcoanalysis, polygraph test, and brain electrical activation profile (BEAP).

The Court came to the following conclusions:

  1. “Therefore, our conclusion is that the results obtained by the involuntary administration of either of the impugned tests fall within the scope of ‘compulsion to testify’, thereby attracting the protective shield of section 20 ( 3).”
  2. “Therefore, we are of the view that subjecting a person to the offending techniques unintentionally violates the prescribed limits of privacy.”
  3. “In light of these findings, we believe that no individual should be subjected to any of the techniques in question, whether in the context of criminal investigations or otherwise.”

In KS Puttaswamy vs Union of India (a judgment of a bench of 9 judges), the Supreme Court held:
“An attack on life or individual freedom must meet the triple requirement of (i) legality, which postulates the existence of the law; (ii) necessity, defined in terms of a legitimate state objective; and (iii) proportionality, which ensures a rational link between the objectives and the means adopted to achieve them.

Freedom and confidentiality
By delivering historic judgments, the Court has fulfilled its primary duty of being the “sentinel of the alert”.
The Selvi and KS Puttaswamy stops are still valid. Not, it seems, for the current government of India. Had it realized that the judgments were binding on the government, based on non-derogable constitutional rights (sections 20 and 21), the government would not have introduced and passed the Criminal Procedure (Identification) Bill 2022 The bill is a brazen attempt to override the Supreme Court and deny fundamental rights to liberty and privacy, two of the most valuable rights in a democracy.

The purpose of the bill was to broaden the scope of persons covered by the law; use of modern techniques for taking body “measurements”; and give him a legal sanction. The goal is irreproachable, the evil lies in the dispositions. There are many legal infirmities in the bill, but let me focus on four sections that violate the two precious rights of liberty and privacy.

Four questionable sections
S.2: There is a definition of “measures”. It includes biological samples and their analysis, behavioral attributes or any other examination/test (referred to in articles 53, 53A and 54 of the Code of Criminal Procedure). There are no exclusions.
Question: Do “measures” include drug analysis, polygraph test, BEAP and psychiatric examination?
S.3: Measures may be taken from “any person”, including a person convicted of an offense punishable under any law, a person ordered to furnish bond for the maintenance of public order, a person arrested under any law and a person detained under a preventive measure. detention law. It is shocking that all laws are covered and it is even more shocking that an arrested and detained person is bludgeoned with a convicted person. The section undoubtedly includes any protester who tries to cross a police barrier or
S. 144, CrPC has been enacted! Questions: Is there a Member of Parliament, Member of Parliament, political worker, trade unionist, student leader, social activist or progressive writer or poet who has never been arrested and can claim that he will not be ever stopped? (The day I joined the Youth Congress, I was arrested, along with others, for protesting near the Minto statue in Chennai!).
S.4: Measurements will be stored, retained for 75 years and may be shared with any “law enforcement agency”. Note the words, this is not an agency investigating a crime. An authority such as a panchayat or municipal officer, health inspector, traffic policeman, tax collector and many others enforce one law or another – and they will have the right to demand and to get the measurements. Question: If not defined, what law enforcement agencies are mentioned in the section?
S.5 read with S.2: A person is obliged to give their measurements. A magistrate can order a person to give his measurements and the person must obey the order. If he refused, a police officer (definition: Chief of Police and above) is empowered to take action and if the person resisted, he will be punished under Section 186 of the Indian Penal Code. Question: Will the measures be taken against the will and without the consent of the data subject?

Non-derogable right
The Home Secretary verbally assured the Rajya Sabha that the techniques prohibited at Selvi would not be employed, but refused to incorporate the assurance into the bill. The other three questions remained unanswered. The government resorted to the usual binary arguments: if prisoners have human rights, so do victims. The bill does not concern victims but arrestees, detainees and prisoners. The other argument was, look at our low conviction rates. Sure, look at them, but the low rate is due to negligent investigators, shoddy prosecutors, poor record keeping, and overburdened judges. These constraints will not disappear by violating the human rights of arrestees, detainees and prisoners.

Freedom is a human right which cannot be derogated from. The erosion of a human right is the starting point of its extinction. The Bill is a dagger plunged into the heart of Liberty.


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