Forced brain mapping, polygraphs illegal: SC
PTI
NEW DELHI, MAY 5
In a blow to investigating agencies, the Supreme Court today ruled as illegal compulsory use of narco-analysis, brain-mapping and polygraph tests, saying such techniques amount to cruel and degrading treatment and unwarranted intrusion into personal liberty.
“We hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty,” a three-judge bench headed by Chief Justice K G Balakrishnan said.
“Compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms,” the bench, also comprising Justices R V Raveendran and J M Panchal said in its 251-page judgement.
The bench said the results gathered from these techniques comes into conflict with the ‘right to fair trial’ and “forcing an individual to undergo any of the impugned techniques violates the standard of substantive due process which is required for restraining personal liberty.”
However, the court said 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 bench said when consent of a person is obtained for
subjecting him to narco analysis, brain mapping and polygraphic
tests, the guidelines laid down by the NHRC in 2000 for the lie
detector (polygraph) test has to be followed strictly.
In the judgement, which can have wide-ramifications on several
high profile cases, Justice Balakrishnan 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.
Holding that the underlying rationale of such right is to
ensure the reliability as well as voluntariness of statements
that are admitted as evidence, the Bench said “This court has
recognised that the protective scope of Article 20(3) extends
to the investigative stage in criminal cases.”
The court said Article 20(3) read with Section 161(2) of the
Code of Criminal Procedure, “protects accused persons, suspects
as well as witnesses who are examined during an investigation.
The test results cannot be admitted in evidence if they have
been obtained through the use of compulsion”.
The judges noted that Article 20(3) protects an individual’s
choice between speaking and remaining silent.
“The results obtained from each of the impugned tests bear a
‘testimonial’ character and they cannot be categorised as
material evidence,” they said.
The court rejected the contention of the Centre that such
techniques were helpful in extraordinary situations and pointed
out the pitfalls involved in them.
“What this will result in is that investigators will
increasingly seek reliance on the impugned techniques rather
than engaging in a thorough investigation,” the bench said.
“In a narco-analysis test, the subject is likely to divulge a
lot of irrelevant and incoherent information. The subject is as
likely to divulge false information as he/she is likely to
reveal useful facts. Sometimes the revelations may begin to
make sense only when compared with the testimony of several
other individuals or through the discovery of fresh materials.
In a polygraph test, interpreting the results is a complex
process that involves accounting for distortions such as
‘countermeasures’ used by the subject and weather conditions
among others, the Bench noted.
“In a brain electrical activation profile test (brain mapping),
there is always the possibility of the subject having had prior
exposure to the ‘probes’ that are used as stimuli.
It said permission to use the forcible administration of these
techniques could be the first step on a very slippery-slope as
far as the standards of police behaviour are concerned.
In some of the impugned judgments, it has been suggested that
the promotion of these techniques could reduce the regrettably
high incidence of ‘third degree methods’ that are being used by
policemen all over the country.
This is a circular line of reasoning since one form of improper
behaviour is sought to be replaced by another, it said.
The bench also said the Centre’s contention that the use of
these techniques will only be sought in cases involving heinous
offences only rings hollow since there will no principled basis
for restricting their use once the investigators are given the
discretion to do so.
