With threats of terrorist attacks looming large over India of late, some over-zealous police officials and other law-enforcement agencies have allegedly been effecting arrests of ‘suspects’ on a random basis and routinely subjecting them to third-degree measures during investigation in total disregard to the guidelines laid down by the National Human Rights Commission of India (NHRCI) and despite several rulings handed out by the Supreme Court in the last few decades that such methods are violative of human rights and human dignity of an individual. Significantly, Union Home Minister Rajnath Singh called upon top police officers of various states and UTs in the country not to arrest or harass anyone for alleged ‘radicalization’ in the absence of solid evidence.
Besides, investigators are adopting various ‘scientific methods’ to determine truthfulness and accuracy of statements made by accused / suspects and witnesses during investigation. Modern scientific methods include use of narco-analysis or use of truth serum, polygraph or lie detector test and brain fingerprinting/mapping. The Apex Court has ruled as illegal the compulsory use of such scientific techniques, whether in the context of investigation in criminal cases or otherwise, as these cause an unjustifiable intrusion into the mental privacy of an individual, and it would also amount to ‘cruel’, inhuman or ‘degrading treatment’, with regard to the language of evolving International Human Rights norms.
What exactly are the modern ‘scientific methods’?
Narco-analysis: The term narco-analysis is derived from the Greek work ‘narke’ meaning numbness. The technique uses barbiturates (sedative) drugs to induce a state of unconsciousness in which secrets come to the surface since the subject is not in control of what he/she says.
Truth Serum: The Latin expression ‘en vino veritas’ meaning ‘truth in wine’ which meant that alcohol was used as one of the earliest truth serums. In modern times, sodium thiopental or sodium pentothal is used as a truth serum. This drug decreases higher cortical brain functioning. The underlying hypothesis is, that lying is more complex than telling the truth and hence lower cortical brain activity will make it difficult for a person to lie. The efficiency of this test is debatable, but it can help in investigation.
Polygraph test: A polygraph, commonly known as the lie-detector, is a device that measures and records several physiological variables such as blood pressure, heart-beat rate, respiration rate and skin conductivity while the subject is asked a series of questions. Underlying this test, is the ancient hypothesis that a person’s nervousness and anxiety increases while telling a lie. The accuracy of the polygraph has been contested almost since the introduction of the device because, if the subject exhibits anxiety for reasons other than the truth or can control his anxiety level voluntarily, the test could result in unreliable conclusions.
Bring fingerprinting/mapping: An American Scientist Lawrence Farwell is credited with developing the EEG / P 300-based brain-mapping or brain-finger-printing technology. According to the Scientist, our brain stores events as memories, and this function of the brain is used in differentiating a criminal from an innocent person. The criminal’s brain stores the sequences of events that happens at the crime scene, but an innocent man’s brain would have no such memories. Words, sounds, pictures and codes related to the crime are presented to the subject by a computer. The responses of these stimuli are measured and the data is analyzed if the relevant information is present in the subject’s memory.
Functional MRI (FMRI): Is yet another scientific interrogating technology that is of interest to investigators these days. Various research institutes say that the frontal lobe area of the brain becomes more active when a person is lying, and this is the underlying hypothesis of FMRI technique.
The results obtained through the use of the above techniques, are not legally admissible evidence in India. The Supreme Court maintained that the results gathered from these techniques, come into conflict with the ‘right to fair trial’, and forcing an individual to undergo any of the techniques violates the standard of substantive due process which is required for restraining personal liberty.
In several rulings, which have had wide-ranging remifications of several high profile cases, the Supreme Court said the compulsory administration of the impugned techniques violates the ‘right against self incrimination’ and is against the provision of Article 20 (3) of the Constitution of the country. Holding that the underlying rationale of such right is to ensure the reliability as well as how voluntary the statements that are admitted as evidence are, the Court said Article 20 (3) read with Section 161 (2) of the Code of Criminal Procedure (Cr.PC) protects accused persons, suspects as well as witnesses who are examined during an investigation.
While further explaining the protective scope of Article 20 (3) which extends to the investigative stage in criminal case, the Apex Court asserted that results gathered from each of the impugned tests bear a ‘testimonial character’ and as such, they cannot be categorized as material evidence if they have been obtained through the use of compulsion.
The Apex Court, however, said that such techniques can be used with certain safeguards in place if a person volunteers and consents to undergo any of these tests, but made it clear that the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses.
The Court said, when consent of a person is obtained for subjecting him to narco-analysis, brain-mapping and polygraphic test, the guidelines laid down by the National Human Rights Commission of India in 2000 for lie-detector (polygraph) test, has to be followed strictly.
(The writer is a freelance journalist)
