The answer is IT DEPENDS! If the potency test’s result will, solely by itself, incriminate the accused, then it cannot be allowed. Therefore, what is to be seen is whether the potency or otherwise of accused is itself in issue in a given case.
Based on a reading of Supreme Court judgments, there can be two types of tests an accused can be subject to: one that leads evidence of only physical attributes of accused which is no significance on its own and another that gives substantive evidence against the accused. It is only the former type of tests that are allowed without consent of accused. Latter types of tests are hit by Article 20 (3) of the Constitution as they amount to forcing accused to incriminate himself.
Potency test falls within second type of test, particularly when being conducted in relation to cases where potency of accused is in issue.
The said analysis is based upon three Supreme Court judgments- Kahi Kalu case, Selvi case and Ritesh Sinha case.
In Kathi Kalu Oghad, the Supreme Court extensively discussed upon meaning of self-incrimination as protected by Article 20 of the Constitution vis-a-vis physical examination of accused to collect evidence. The Court held that those tests which only provide corroboration to the evidence already in possession of the police, cannot be held to be self incriminatory. Tests such as collection of finger prints, handwriting samples etc. only provide identification of the accused and are not substantive evidence in themselves. Therefore, such tests can validly be conducted. However, if the result of the test in itself would be a substantive evidence and would incriminate the accused in trial, then it would be hit by Article 20.
In Selvi case, the Supreme Court was concerned with validity of certain tests conducted upon the accused after administration of drug into them to elicit the truth. These tests can include narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP). The Court held that these tests cannot be conducted without the consent of the accused. Further, the Court provided extensive guidelines to be followed in case the accused consents. The Court held that the result of the said tests could be a substantive evidence in itself and could incriminate the accused during the trial. Therefore, it will be hit by Article 20 of the Constitution.
In Ritesh Sinha case, the Supreme Court was concerned with validity of collection of voice samples of accused. The Court was split in its opinion and the matter was referred to a larger bench. One of the judges, J. Aftab Alam, opined that voice samples could not be forcibly collected from the accused, either at the instance of the Police or the Court. He reasoned that Section 53 Cr.P.C. was the sole repository for conducting tests upon the accused for collection of evidence and that it did not provide for voice samples despite amendment by the Legislature. The Judge further opined that voice sampling cannot be read into Section 53 as other tests specified in the Section were not of the same genus (or category) as that of voice sampling.
The other Judge in the above case differed in opinion and opined that voice sampling was merely for identification of material already in possession of police and thus was not substantive evidence. The said Judge held that therefore mere collection of voice samples would not be hit by Article 20.
However, the law regarding collection of voice samples will be settled by the larger bench decision.
However, in a given criminal case, if the fact in issue is impotency of the accused, then, going by the aforesaid reasoning, the result of the test would be substantive evidence in itself and would be hit by Article 20. Therefore, in such cases, potency test cannot be forced upon the accused by the Police or the Court.
However, the said analysis does not apply to cases before Family Court (such as Divorce) where potency of a party may be in issue. Supreme Court has held that Family Court has the power to order potency test of a party in a divorce case. That on account of the aforesaid reasoning,