Striking A Balance: Efficient Investigation And Individual Rights
Law, Science and Technology has a great relevance in our lives. Law and Science encounter each other in many ways. When technology intrudes in the ambit of legal rights it is checked by law, for example, cyber crimes, in the same manner to protect legal rights and strengthening the evidence with the help of science, cannot be denied.
At present date, when the legal system has so much advanced, criminals take care to erase all the evidences of their involvement, then in such case, scientific and highly sophisticated methods are required to trace the involvement of criminals. Narcoanalysis, Polygraphy and Brain Mapping tests collectively called deception detection tests (DDT) are new kinds of interrogation techniques which are simple and civilized way of conducting investigation. But, at the same time, one has to be conscious of its limitations also. It infringes fundamental rights under Article 20(3), and also right to privacy and right to health which are guaranteed under Article 21 of the Constitution.
Inspite of the verily limitations, it affirms certain attributes also which includes: ‘order of court’, ‘pre-consent of subject’ ‘non-manipulated statements by subject’ and ‘secure public interest’ Thus, there is a tension between desirability of efficient investigation and preservation of individual rights.
Concept Of Investigation-
In order to study about the scientific criminal investigation, we need to understand the term ‘investigation’,
“Investigation means to examine, study, or inquire into systematically, search or examine into the particulars of; examine in detail, or, to search out and examine the particulars of in an attempt to learn the facts about something hidden, unique, or complex, esp. in an attempt to find a motive, cause, it is about finding things.”
According to the Code of the Criminal Procedure under section 2(h) of the Code,“ investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a magistrate) who is authorized by a Magistrate in this behalf. Investigation, under the Code includes:-
1. Proceeding to the spot of crime.
2. Ascertaining the facts and circumstances of the case.
3. Discovery and arrest of the suspected offenders.
4. Collection of evidence,
* examination of various persons including the accused and recording their statements in writing.
* Search of places or seizures of things which are considered necessary.
Criminal Investigation is an applied science that involves the study of facts, used to identify, locate and prove the guilt of a criminal. A complete criminal investigation can include searching, interviews, interrogations, evidence collection and preservation and various methods of investigation. Modern day criminal investigations commonly employ many modern scientific techniques known collectively as forensic science.
Application Of Science And Technology In Criminal Investigation-
The search for effective aids to interrogation is probably as old as man’s need to obtain information from an uncooperative source and as persistent as his impatience to shortcut any tortuous path. In the annals of police investigation, physical coercion has at times been substituted for painstaking and time consuming inquiry in the belief that direct methods produce quick results. The use of technology in the service of criminal investigations, and the application of scientific techniques to detect and evaluate criminal evidence has advanced the investigation process criminal justice system throughout the country. According to Cowan in his article “Decision Theory in Law, Science, and Technology”,
“the aim of science, traditionally put, is to search out the ways in which truth may become known. Law aims at the just resolution of human conflict. Truth and justice, we might venture to say, having different aims, use different methods to achieve them. Unfortunately, this convenient account of law and science is itself neither true nor just. For law must know what the truth is within the context of the legal situation: and science finds itself ever engaged in resolving the conflicting claims of theorists putting forward their own competing brands of truth.”
This quote roughly means that the law needs to find the truth to resolve “human conflict” and one method of doing so is to use the field of science. Today’s society has improved upon the methods of the past to bring about more precise and accurate techniques. Forensic Science2 has expanded to Trauma Inducing Drugs and Psychotropic Substances. The application of science to matters of law has made great strides in recent years. Development of new tools of investigation has led to the emergence of scientific tools of interrogation like:
* Narcoanalysis Test
* Brain Maapping Test/ Brain Electrical Oscillation Signature Profile (Beos)
* Polygraphy Test
* Dna Profiling
* Fingerprinting Test
Deception Detecting Test
Deception, in another word means lying, it may lead to a serious aftermath in the enforcement of law and the proceedings in the courtroom. According to DePaulo et al., deception is defined as a deliberate attempt to mislead others. Hence, much effort is devoted by the forensic psychologists in developing different techniques and methods to detect lies. The deception detection tests (DDT) such as polygraph, narco-analysis and brain-mapping have important clinical, scientific, ethical and legal implications1. The DDTs are useful to know the concealed information related to crime. This information, which is known only to self, is sometimes crucial for criminal investigation2. The DDTs have been used widely by the investigating agencies. However, investigating agencies know that the extracted information cannot be used as evidence during the trial stage. They have contested that it is safer than ‘third degree methods’ used by some investigators. Here, the claim is that, by using these so called, “scientific procedures” in fact-finding, it will directly help the investigating agencies to gather evidences, and thereby increase the rate of prosecution of the guilty and the rate of acquittal of the innocent3. Recently, these methods are being promoted as more accurate and best to none, without convincing evidence.
But, in a landmark judgment, the apex court of India has clearly stated that DDTs cannot be administered without consent3. Deception Detecting tests implies psychological evaluation of human brain it includes three main kinds of tests which are:
Narco Analysis Test:
The term Narco-Analysis is derived from the Greek word narkç (meaning "anesthesia" or "torpor") and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, to induce a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. The term narco-analysis was coined by Horseley. Narco analysis first reached the mainstream in 1922, when Robert House, a Texas obstetrician used the drug scopolamine on two prisoners. The narco analysis test is conducted by mixing 3 grams of Sodium Pentothal or Sodium Amytal dissolved in 3000 ml of distilled water. Narco Test refers to the practice of administering barbiturates or certain other chemical substances, most often Pentothal Sodium, to lower a subject's inhibitions, in the hope that the subject will more freely share information and feelings. A person is able to lie by using his imagination. In the narco Analysis Test, the subject's inhibitions are lowered by interfering with his nervous system at the molecular level. In this state, it becomes difficult though not impossible for him to lie .In such sleep-like state efforts are made to obtain "probative truth" about the crime. Following procedure has to be adopted while conducting narco test:-
# This test is conducted in government hospitals after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.
# Experts inject a subject with hypnotics like Sodium Pentothal or Sodium Amytal under the controlled circumstances of the laboratory.
# The dose is dependent on the person's sex, age, health and physical condition.
# The subject which is put in a state of Hypnotism is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestions.
# The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers.
# Wrong dose can send the subject into coma or even result in death.
# The effect of the bio-molecules on the bio-activity of an individual is evident as the drug depresses the central nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic trance resulting in a lack of inhibition.
# The subject is then interrogated by the investigating agencies in the presence of the doctors.
# The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence.
A person is able to lie by using his imagination. In the Narco Analysis Test, the subject's imagination is neutralised by making him semi-conscious. In this state, it becomes difficult for him to lie and his answers would be restricted to facts he is already aware of. The subject is not in a position to speak up on his own but can answer specific and simple questions. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers. Narcoanalysis is a tool which is now being, alarmingly, used by investigating agencies in criminal cases, as an interrogation technique. It was first used in 2002, in the Godhra carnage probe. During the Telgi scam, the use of narcoanalysis came under the scanner, and then it was used in the Arushi murder investigation. The scientific validity of the test has been questioned by medical professionals, and the legal validity has also been debated in several international and national cases. Recently in Gujrat, narcoanalysis test has been conducted in connection with mysterious killing of Jhurjhura Tigress at Bandhavgarh National Park in May 2010. The young tigress, mother of three cubs, was found dead in a water-hole at Park. Post-mortem revealed that it had died of internal haemorrhage while circumstantial evidence suggested a vehicle hit the big cat to death. The case has been handed over to the Criminal Investigation Department(CID) and then to the Special Task Force(STF). STF narrowed the list for narcoanalysis test to four persons- Man Singh, Pankaj Vishvakarma, Dhirendra Chaturvedi and Shrilal Yadav. While three agreed to give their consent, Yadav refused to take test on grounds of post-test hazards. They were subjected to the test on july 30 at Gandhinagar Forensic Science Laboratory (FSL). The Officials are now analyzing the CDs of the interrogation session provided by Gandhinagar FSL for further investigation.
Brain Mapping Test:
Brain-mapping is a comprehensive analysis of brainwave frequency bandwidths. In this test, forensic experts apply unique neuroscience techniques to find out if a suspect's brain recognizes things from a crime scene which an innocent person's brain will have no knowledge of.
In brain-mapping, sensors are attached to the suspect's head and he or she is made to sit in front of a computer screen. The suspect is then made to see images or hear sounds.
The sensors monitor electrical activity in the brain and register certain waves which are generated only if the suspect has any connection with the stimulus (image or sound).
This test was developed and patented in 1995 by neurologist Dr. Lawrence A. Farwell, Director and Chief Scientist “Brain Wave Science”, IOWA. In this method, called the “Brain-wave finger printing”; the accused is first interviewed and interrogated to find out whether he is concealing any information. Then sensors are attached to the subject’s head and the person is seated before a computer monitor. He is then shown certain images or made to hear certain sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are generated only if the subject has connection with the stimulus i.e. picture or sound. The subject is not asked any questions. Dr. Farwell has published that a MERMER (Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the accused when his brain recognizes noteworthy information pertaining to the crime. These stimuli are called the “target stimuli”. In a nutshell, Brain finger printing test matches information stored in the brain with information from the crime scene. Studies have shown that an innocent suspect’s brain would not have stored or recorded certain information, which an actual perpetrator’s brain would have stored. In USA, the FBI has been making use of “Brain mapping technique” to convict criminals.
In Jan 30, 2008, Brain-mapping test on serial killer Chandrakant Sharma concluded in Bangalore. He allegedly revealed details about a case.
Lie Detecting Test:
A polygraph, popularly referred to as a lie detector, is an instrument that measures and records several physiological indices such as blood pressure, pulse, respiration and breathing rhythms and skin conductivity while a suspect is asked a series of questions.
Deceptive answers are said to produce physiological responses that can be differentiated from those associated with non-deceptive answers.
It is an examination, which is based on an assumption that there is an interaction between the mind and body and is conducted by various components or the sensors of a polygraph machine, which are attached to the body of the person who is interrogated by the expert. The machine records the blood pressure, pulse rate and respiration and muscle movements. Polygraph test is conducted in three phases- a pretest interview, chart recording and diagnosis. The examiner (a clinical or criminal psychologist) prepares a set of test questions depending upon the relevant information about the case provided by the investigating officer, such as the criminal charges against the person and statements made by the suspect. The subject is questioned and the reactions are measured. A baseline is established by asking questions whose answers the investigators know. Lying by a suspect is accompanied by specific, perceptible physiological and behavioural changes and the sensors and a wave pattern in the graph expose this. Deviation from the baseline is taken as a sign of lie. All these reactions are corroborated with other evidence gathered. The polygraph test was among the first scientific tests to be used by the interrogators. It was Keeler who further refined the polygraph machine by adding a Psycho-galvanometer to record the electrical resistance of the skin.
The Attorney General of India Ghulam E Vahanvati, arguing before a bench presided by the Chief Justice of India K.G.Balakrishnan, hearing petitions against the procedure of narco analysis, justified its use as a tool of investigation. He asserted that the procedure of narco analysis finds legal sanction under the newly amended Section 53 of the Criminal Procedure Code. In 2005, an Explanation clause was added to Section 53 of the Criminal Procedure Code, the relevant part of which reads as follows: (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 modem and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particularcase; (emphasis supplied) It is submitted that the expression 'such other tests' signifies a provision for recognizing newly developed techniques in forensic science and permitting the same in investigative procedures.
Deception Detecting Test: How Far It Is Justified?
In India, the use of Deception Detecting Tests has been questioned in courts. The main argument against it is the infringement of the fundamental right under Article 20(3)and under Article 21 of the Constitution, which provides for a privilege against self incrimination and right to health and privacy, respectively. The revelations made during the Narco analysis have been found to be of very useful in solving sensational cases of Mumbai serial train blasts, blasts at Delhi, Malegoan and more recently in Hyderabad and in various other sensational cases of National and International ramifications. In most of these cases, the revelations made have led to the discovery of information’s favouring probative truth and consequently recoveries have been made in large number of cases under section 27 of Indian Evidence Act3. Thus, it is right to say that DDT is proving to be a useful tool in the field of criminal investigation. Legal questions are raised about their validity with some upholding its validity in the light of legal principles and others rejecting it as a blatant violation of constitutional provisions. There is a tension between efficient or successful investigation and preservation of individual rights, which is discussed in the following manner:
Violation of Individual Rights:
If a person is not willing to consent, it is being assumed by the people that he is not cooperating with investigation and might have committed or involved in the offence. But, DDT have certain outcomes which are unethical as well as unconstitutional.
As To Violation Of ‘Right To Be Silent’-
(Under Article 11.1 of the Universal Declaration of Human Rights, 1948)
(Under Article 14(3)(g) of the International Covenant on Civil and Political Rights, 1966)
(Under Article 20(3) of the Indian Constitution)
Section 27 in The Indian Evidence Act, 1872:
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 th 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.
The right to remain silent is a legal right recognized, explicitly or by convention, in many of the world's legal systems. Universal Declaration of Human Rights, 1948 under Art. 11.1 declares, “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” The International Covenant on Civil and Political Rights, 1966 to which India is a party states in Art. 14(3)(g) “Not to be compelled to testify against himself or to confess guilt”. The European Convention for the Protection of Human Rights and Fundamental Freedoms states in Art. 6(1) that every person charged has a right to a ‘fair’ trial and Art. 6(2) thereof states:
“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” The right covers a number of issues centered around the right of the accused or the defendant to refuse to comment or provide an answer when questioned, either prior to or during legal proceedings in a court of law. This can be the right to avoid self-incrimination or the right to remain silent when questioned. The right usually includes the provision that adverse comments or inferences cannot be made by the judge or jury regarding the refusal by a defendant to answer questions.
Position in United States
The Fifth Amendment to the U.S. Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. At trial, the prosecution can neither call the defendant as a witness, nor comment on the defendant's failure to testify. Whether to testify or not is exclusively the privilege of the defendant. Harris v. N.Y.4Outside the context of detention sought by the State, the person still can invoke his Fifth Amendment privilege against compulsory self-incrimination, and refuse to comply. Only if granted immunity by the state, in a formal proceeding, from having any testimony or evidence derived from the testimony used against him, can a person be compelled to answer over an asserion of this privilege. Kastigar v. U.S.5 If police detain (or arrest) a person, they must advise him that he has a right to remain silent, and the right to an attorney, among other rights. If the detained person invokes these rights, all interrogation must cease, and nothing said by the defendant in violation of this rule can be admitted against him at trial6.
Position in India
A survey of the current law in various countries reveals that in USA, Canada and India in view of the constitutional provisions against self incrimination the Courts have required the prosecution to prove guilt beyond reasonable doubt and there has been no encroachment whether at the stage of interrogation or trial, into the right to silence vested in the suspect or accused.
The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution.
In, CrPC, the legislature has guarded a citizen’s right against self-incrimination. S.161 (2) of the Code of Criminal Procedure states that every person “is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture”.
The constitution of India guarantees every person right against self incrimination under Article 20(3) of the Indian Constitution "No person accused of any offense shall be compelled to be a witness against himself.”
It is well established common law doctrine that every accused person is presumed innocent unless proved guilty and it is for the prosecution to prove the guilt and in the process the accused cannot be compelled to make a self incriminating statement.
The term ‘self-incrimination’ means the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination7 can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.
It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani8 Supreme Court held that “ no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. Moreover, under the influence of the drug, the accused has garbled speech and tends to talk about fantasies, and labours under delusions. For example, a person may talk about a crime s/he fantasized about committing, even if they actually have not done it. Their state resembles that of a person in delirium. So, it ultimately constitutes self incrimination of a person because it is difficult to distinguish reality from fantasy.
Barron's Law Dictionary (USA):
Self-Incrimination, Privilege Against the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself which will subject him or her to an incrimination. This right under the Fifth Amendment (often called simply PLEADING THE FIFTH) is now applicable to the states through the due process clause of the Fourteenth Amendment, 378 U.S. 1,8, and is applicable in any situation, civil or criminal where the state attempts to compel incriminating testimony. (There are many caveats following this section.)
Black's Law Dictionary (USA):
Self-Incrimination: Acts or declarations either as testimony at trial or prior to trial by which one implicates himself in a crime. The Fifth Amendment, U.S. Const. as well as provisions in many state constitutions and laws, prohibit the government from requiring a person to be a witness against himself involuntarily or to furnish evidence against himself. (There are links to other related subjects: Compulsory self-incrimination; Link-in-chain; Privilege against self-incrimination.)
As To Violation Of Right To Health-
(Under Article 25 of the Universal Declaration of Human Rights, 1948)
(Under Article 12 of the International Covenant on Economic, Social and Cultural Rights in 1966)
(Under Article 21 of the Indian Constitution)
Article 25 of the Universal Declaration of Human Rights 1948 states that "Everyone has the right to a standard of living adequate for the health, and wellbeing of himself and his family...". The Preamble to the World Health Organisation's (WHO) constitution also declares that it is one of the fundamental rights of every human being to enjoy "the highest attainable standard of health". The United Nations further defined the right to health in Article 12 of the International Covenant on Economic, Social and Cultural Rights in 1966.
The supreme corut judgement of Urjit Singh Vs State of Punjab) AIR 1996 SC 1388 ordered settle the claim as per the rates admissible in 'Excorts Hospital'. Law is therefore well settled that right to health is an integral part of life guaranteed under Article 21 of the Indian Constitution.
P. Chandra Sekharan, President of the Forensic Science Society of India, says that not only are narcoanalysis tests unreliable, they may also lead to dangerous side effects. The truth serum substance, sodium pentothal is the same substance that in larger dosages is used to induce a deep coma like state for executions by lethal injection in USA. A large dose of the drug is lethal; a test could result in coma or even death. It can be difficult to determine the correct dose of the drug. But in 2011, Sheikh Mujib, an engineering student who was accused in a bomb blast case in the Indian city of Ahmedabad, complained of health problems after narcoanalysis. Arun Ferreira, a political activist who underwent forced narcoanalyis after being arrested in 2007 under the Unlawful Activities Prevention Act for being an alleged Maoist, described the procedure as a sort of torture.
As To Violation Of Right To Privacy-
(Under Article 19 of Universal Declaration of Human Rights, 1948)
(Under Article 17(1) of the Covenant on Civil and Political Rights)
(Under Article 21 of the Constitution)
The concept of privacy is internationally recognized under Article 19 of UDHR as: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers. By the expression “Right to Privacy” we mean the right to be left alone to live one’s own life with minimum degree of interference. The right to privacy is also stipulated in the Covenant on Civil and political Rights under Article 17(1) which says, “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and everyone has the right to the protection of the law against such interference or attacks.” But this right is not guaranteed in the Indian Constitution.
However, in Kharak Sing v State of U.P., [(1964) 1 SCR 33] it was held by the Supreme Court that the domiciliary visits is an infringement of the right to privacy and is violative of the citizen’ s fundamental right guaranteed under Art.21 of the Indian Constitution. Subba Rao J. was of the opinion that privacy was an essential ingredient of personal liberty.
In Govind v State of Madhya Pradesh [1996 (0) MPLJ 649] the right to privacy was assumed to be a part of the personal liberty guaranteed under Art. 21 of the Constitution, by stating that although the right to privacy is not explicitly provided in the Constitution, it is ingrained in the fundamental right of life and personal liberty.
In People’s Union for Civil Liberties v Union of India [1997 AIR (SC) 568], commonly known as telephone tapping case, the Supreme Court held that right to life and personal liberty includes telephone conversation in the office or home and thus telephone tapping is violative of Art. 21.
In Smt. Selvi and Ors Vs State of Karnataka, Supreme Court held that the use of narco analysis, brain-mapping and polygraph tests on accused, suspects and witnesses without their consent, unconstitutional and violation of the ‘right to privacy'.
Thus, Right to Privacy is implicit in the Right to life and liberty guaranteed to the citizens of India by Article 21 of the Constitution of India. None can publish anything covering the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If done so, it will be violating right to privacy of person concerned and would be liable in an action for damages.
Deception detection tests amounts to an invasion of privacy if it involves eliciting personal information from the accused known only to him. However, it must be noted that the test assumes the character of a restriction imposed by law on the said right.
Imperative For Efficient Investigation:
To Achieve Justice-
On The Part of Accused:
Pre-Consent/Informed Consent Is Taken-
Deception detecting test comes under the general power of investigation (Sections 160-167,Cr.P.C.).But it must be realized that it is prerogative of the person to allow himself/herself to be put to the test or not and it should not be left to the discretion of police. Unless it is allowed by law and the accused himself, it must be seen as illegal and unconstitutional. But, if it is conducted with free consent’ of the person it may be permitted. The person should be made well aware of the technicalities of the procedure, the effect of the narcotics under whose influence he shall be interrogated as well as the physical, psychological and legal ramifications of undergoing the procedure, this knowledge becoming the basis on-which he renders his voluntary consent.
‘Free consent’ means it is voluntary and is not given under coercive circumstances. For example, If a person says, “I wish to take a lie detectors test because I wish to clear my name”. It shows his/her free consent but it is still to be shown that whether this voluntariness was under coercive circumstances or not. If a person is told by police “If you want to clear your name take a lie detector test” or” take a lie detector test and we will let you go” then it shows that police has linked up the freedom to go with the lie detector test and as such it cannot be held voluntary.
So, we can say that when there is an informed consent about the consequences of the trauma inducing tests, there is no question of violation of constitutional rights.
Supreme Court Judgments:-
The Supreme Court consisting of three-judge bench headed by the Chief Justice K.G. Balakrishnan, said that so-called narco analysis, brain mapping and polygraph tests cannot be conducted on any person without their consent. Such procedures “are illegal and a violation of personal liberty.”
Arushi Murder Case
Rajesh and Nupur Talwar, currently on trial in Delhi for murdering their 14-year-old daughter, volunteered for narcoanalysis in an attempt to prove their innocence.
Geetika Sharma Suicide Case’
Former Haryana minister Gopal Goyal Kanda has refused to undergo brain mapping and narco-analysis test in a case of abetting the suicide of a former air hostess Geetika Sharma. On the other side, the victim's family approached the National Commission for Women (NCW) seeking strict action against the culprits. The city police had approached Bangalore-based forensic sciences laboratory (FSL) for the tests. The FSL officials, however, said that tests were not possible without the consent of the accused.
Jhurjhura Tigress’s Case
Till 2011, Madhya Pradesh was known as the tiger state of India, and not without reason: in 2000, it had 700 tigers. But according to census of 2011, there are only 257 left. Recently in 2010, in Bandhavgarh Tiger Reserve, a tigress was murdered in mysterious by tourists. Four persons were charged suspected and undergone deception detecting test where one of the suspected has refused to give his consent on narcoanalysis test on grounds of post-test hazards.
NHRC Guidelines Being Followed-
National Human Rights Commission had published Guidelines in 2000 for the Administration of Polygraph tests. NHRC guidelines, on their part, maintain if an accused volunteers for a lie-detector test, then he should be given access to a lawyer and the physical, emotional and legal implications of such a test should be explained to him by both police and his lawyer. Moreover, the consent should be recorded before a judicial magistrate and during the hearing, the person who has agreed to the test should be duly represented by a lawyer. Among other things, NHRC guidelines say the actual recording of the lie- detector test should be done by an independent agency like a hospital and in the presence of a lawyer. Also, a full medical and factual narration of the manner of the information received must be put on record.
On The Part Of Victim:
Though many would argue that these psycho-medical tests are invasive and brutally infringe upon the bunch of fundamental rights guaranteed under Charters and multiple Covenants, let us not forget that these same invasive psycho-medical tests enable law enforcement agencies in securing much awaited justice to the victims/sufferers. These tests assume importance in such scenarios where circumstantial evidences are baffling or lead to nowhere thus turning out to be a ray of light in a dark tunnel.
Secure Public Interest-
Dr. R.E. House’s address to the First Annual Meeting of the Eastern Society of Anaesthetists in 1925 about the role of his scopolamine tests:
" ... Society has the right to be protected against the criminal, and all of society's rights are manifestly superior to those of the criminal. There can be no gainsaying the fact that a suspect is either innocent or guilty, and no one knows the truth better than does the suspect himself. It, therefore, stands to reason, that where there is a safe and humane measure existing to evoke the truth from the consciousness of the suspect, that society is entitled to have the truth........... If society has the right to take property, liberty, and life for its protection, then society has the right to make, by trained men, the use of truth serum legal. The framers of the Bill of Rights believed the rights of society were paramount to the rights of the criminal. It was an instrument for the protection of the innocent and not intended for the acquittal of the guilty".
In the case of Gobind v. State of Madhya Pradesh, the Supreme Court held the right to privacy to be included in the right to personal liberty guaranteed under Article 21. However, the Court also held that the right to privacy is not an absolute one and that it can be restricted on the basis of a compelling State interest.
The irony of the modern law jurisprudence is that there are many learned counsels engaged to defend the rights of the accused while there is none to defend the public cause and interest. In Krushi and Charminar Bank Scam, evidence thousands of depositors lost their life time earnings and savings meant for education the kith and kin, to perform marriage of the children and pensioner benefits vanished overnight shattering their dreams and pushing them to the brink of bankruptcy and suicides. Yet when the Managing Director of Krushi Bank was nabbed, he refused to undergo Narco analysis procedure.In such instances, if the right against self incrimination is upheld against the public interest and it would weaken the evidence and thereby denial of justice to the public. Murderers, money launderers, terrorist are allowed to walk away Scott free exploiting the loopholes in the legal system. Ironically in all these issues we apply criminal procedures only to protect the individual freedom of the accused while rights and lives of many people have been sacrificed.
The present criminal justice system is obsessed with individual liberty and freedom and in this context a safe passage forgone and criminals due to weakness in the criminal justice system leading to dilution of evidence. Since the validity of the test and admissibility of DDT upheld taking into consideration the circumstances under which it was obtained , there is a little possibility of miscarriage of justice when administered as per procedure prescribed and observing the due safety precautions, the apprehension on the part of counsels of accused and critics is unwarranted.
Recently Special Cell of the Delhi Police arrested three terrorists belonging to Lashkar-e- Toiba , a Pakistan based anti India Terrorist organistion. They were arrested in a swift action when there were about to denotate bomb explosions in Indian Metros during upcoming festive seasons. Not many would know or believe but this elusive success story was the result of narco – analysis of Abu Zindal, a terrorist recently extradicted to India by Saudi Arabia.
The congressional investigation of September 11th in US has also utilized the potentials of Narco analysis. The prime accused Abu Zubaydah was picked up by CIA during 2003 and the confessions made by him during Sodium pentathol aided interview; are now available in the WEB. However, it is not necessary to traverse about the shocking revelations made. In pursuance of this, it may be seen from a book entitled “Confessions of a terrorist” by Gerald Posner that “US administration privately believes that the Supreme Court implicitly approved using such drugs in matters where public safety is at risk”
Admissibility In Court Of Law
Confessions made by a semi-conscious person is not admissible in court. Deception Detecting Test report has some validity but is not totally admissible in court, which considers the circumstances under which it was obtained and assess its admissibility. Results of such tests can be used to get admissible evidence, can be collaborated with other evidence or to support other evidence. But if the result of this test is not admitted in a court, it cannot be used to support any other evidence obtained the course of routine investigation. The Centre Bureau of Investigation, through G.E. Vahanvati, then solicitor general and now attorney general, had supported the tests and told the apex court that investigative agencies had legal mandate to conduct them. The results provided clues and did not have any evidentiary value, Vahanvati had said.
The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. In the course of the judgment, a distinction was drawn between “statement” (made before a police officer) and “testimony” (made under oath in court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not involve any “statement” being made and the statement made under narco analysis was not admissible in evidence during trial.
Section 45 of the Indian Evidence Act, 1872 does allow experts’ opinions in certain cases. It reads:
“When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.”
However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.
The drafting committee on “National Criminal Justice System Policy” headed by Prof. N. R. Madhavanan has recommended various measures to be taken up by the Govt. for effective management of not only traditional Forensic Science requirements but also to overall S & T[ Science and technology] needs of Criminal Justice System to raise the levels of capability and sophistication. The drafting committee recommended that-
# The evidence Act may need to be amended to make scientific evidence admissible as substantive evidence rather than opinion evidence’ and establish its probative value, depending on the sophistication of the concerned scientific discipline. Scientific techniques and procedures used have to be validated by appropriate agencies and professionally recommended for acceptance as evidence.
# The Investigating Agency has statutory right to investigate the crime and to find out the truth and to reach to the accused. Narco Analysis Test for criminal interrogation is valuable technique which would profoundly affect both the innocent and the guilty and thereby hasten the cause of justice. Conducting of Narco Analysis Test and Brain Mapping Test on the accused is in process of collection of such evidence by the Investigating Agency. Section 161 of the Criminal Procedure Code enables the police to examine the accused also during the investigation. Criminal justice system cannot function without the cooperation of the people. Rather, it is the duty of every person to assist the State in the detection of the crime and bringing criminal to justice. Withholding such information cannot be traced to the right to privacy, which itself is not an absolute right. It is the statutory duty of every witness, who has the knowledge of the commission of the crime, to assist the State in giving evidence.
This report has reviewed current policies, practices and organizational arrangements within which detecting deception tests are used by the police.
The criminal justice system should be based on just and equitable principles.
In spite of the fact that Narco Analysis is “not so reliable” method, its significance and necessity in the present scenario cannot be in any way negated but yet it has its own controversies and concerns. With the growth and development of society the nature of the crime has been also changing and diversifying. The developments and advancements in science and technology should be utilized to the fullest for effective aids to interrogation and investigations in criminal justice system.
It could be understood that these pscho-medicl tests are violative in character but at the same time individual interest cant be placed above collective interest. Let us fulfill the dream of having crime free society and the maxim “Jura publica anteferendaprivatis juribus” should be followed meaning thereby “public rights are to be preferred to private rights whenever there being a dilemma between individual liberties and security of public interest.
# Prof. M.P.Jain, INDIAN Constitutional LAW, Fifth edition reprint 2009, LexisNexis Butterworths Wadhwa, Butterworths Wadhwa, Nagpur.
# Dr. J.N. Pandey, Constitutional LAW OF INDIA, 45th edition, Central Law Agency, Allahabad
# Prof. Narendra Kumar, Constitutional LAW OF INDIA, 5th edition, 2006, Allahabad Law Agency.
# V. Para Brahma Sastri, RIGHT TO LIFE AND PERSONAL LIBERTY (COMMENTARY AND CASE MATERIALS), 1st edition, 2005, Asia Law House, Hyderabad.
# Prof. N.V. Paranjape, CRIMINOLOGY AND PENOLOGY, 14th edition,2009, Central Law Publications, Allahabad.
# K.N. Chandrashekharan Pillai, R.V. KELKAR’S LECTURES ON CRIMINAL PROCEDURE, 4th edition, Eastern Book Company, Lucknow.
# Prof. N.V. Paranjape, THE CODE ON CRIMINAL PROCEDURE, 4th edition, Central Law Agency, Allahabad.
# B.M. Gandhi, LEGAL LANGUAGE & LEGAL WRITING, Eastern Book Company, Lucknow.
# Ratanlal and Dhirajlal, THE LAW OF EVIDENCE, 24th edition, lexisnexis butterworths wadhwa, Nagpur.
# Section 173 in The Code Of Criminal Procedure, 1973: Report of police officer on completion of investigation, (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
# Forensic science is defined as the application of science in answering questions that are of legal interest. More specifically, forensic scientists employ techniques and tools to interpret crime scene evidence, and use that information in investigations. Forensic scientists and technicians come from a variety of academic backgrounds, although most have completed coursework in the life sciences, chemistry and law enforcement
# 401 U.S. 222,225 (1971).
# 406 U.S. 441, 462 (1972).
# Miranda v. Arizona, 384 U.S. 436, 448-50, 455 (1966).
# AIR 1978 S.C. 1025