The Supreme Court’s  verdict in the case of Selvi Vs. State of Maharashtra on the validity of narco-analysis, brain-mapping and polygraph tests has finally settled the legal position on these intrusive tests, frequently used by probe agencies in view of ‘threat’ from terrorism and organised crime. This verdict is all the more essential in as much as neither any specific law nor definitive judicial pronouncement governs these tests. The apex court stated that compusary test violated Article 20(3) of the Constitution and are in complete violaion of personal liberty and an intrusion in ones right. Furthermore, the court further stated that narcotic analysis tests have also been termed as unconstitutional and the same cannot be taken on record as evidence. In this regard the court stated:

“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).”

Objections had 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 together 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 was 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.

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, the court found it necessary to inquire into the historical origins and rationale behind the ‘right against self-incrimination’. The principal questions that were considered was 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, the court also had to 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

This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preservation of individual liberties. A bench headed by Chief Justice K G Balakrishnan said: “We are of the considered opinion that no individual can be forced and subjected to such techniques involuntarily.”the court further held that these tests were violative of Article 23, which protects a person from being forced to give evidence against himself.

With respect to the right against self incrimination this court observed the following:

“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.

Holding that the abovementioned tests do not fall within the purview of the term “medical examination” after deliberating on several judgments and provisions as well as the legislative intent, the Apex court came to the following conclusion:

“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 the credibility of witnesses during a trial.

Hence, the court has made it clear that nobody can be compelled to undergo narco analysis, brain mapping, or lie detector tests and that any statements made during those procedures are not admissible as evidence. However, such tests are permissible only when taken voluntarily. But even in such cases, they must be conducted in strict compliance with the National Human Rights Commission’s Guidelines for the Administration of the Polygraph Test — which includes safeguards such as the mandatory recording of consent before a magistrate and the conduct of all tests by an independent agency. The guidelines have 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.

Proponents of the three tests, including those who concede that they sometimes produce false results, advance pragmatic arguments for their retention. They claim that the tests are a softer alternative to third degree methods of interrogation, which might become further entrenched in their absence. They also argue that these tests can serve the public interest in extraordinary situations: they can help uncover terror plots and prevent devastating attacks.

By LawZ Bureau,