With the steady and constant developments in science and technology, there is an evident transformation in the modus of conducting criminal investigations. The conventional techniques of probing a crime have paved way for scientific forms of investigation. Narco-analysis, brain mapping, polygraph, neuroimaging, etc. have changed the dynamics of criminal jurisprudence. The present research article evaluates the evidentiary value of the diagnostic techniques of narco-analysis and brain mapping, as well as its legality in India. It also discusses the landmark case in which the Supreme Court of India has discussed its importance and laid down guidelines in that regard.

INTRODUCTION

The narco-analysis test uses a chemical substance known as sodium pentothal which is intravenously injected into the body of the test-subject. The subject then enters into a state of hypnosis with all inhibitions shed, and responds to all questions put to him, without knowing that such responses may incriminate him. Since the subject remains in a semi-unconscious state, there are good chances that he may reveal every such detail which he may not otherwise.

On the other hand, is the Brain Electrical Activation Profile (BEAP), commonly known as brain mapping. It employs electrodes as a tool which is attached to the scalp of the subject, and records the electrical waves emitting from the subject’s brain. A number of auditory and visual stimuli, ones which are relevant to the facts being investigated (material probes) as well as those which are not relevant (neutral probes) are placed before the subject, and inferences relating to subject’s information of a crime are drawn thereof. The underlying principle is that when exposed to the material probes, the subject will emit the P300 waves as a result of familiarity with those materials. Therefore, this kind of diagnosis is also known as the P300 waves test.

Of the similar kind is the Polygraph Test or the Lie Detection Test. Instruments like the cardiograph, pneumograph, cardio-cuffs, and electrodes are attached to the body of the test subject and physiological reactions namely the pulse rate, blood pressure, respiration rate, etc. to the questions put before him are examined. Fundamentally, the test rests on the theory that when a person gives a false reply to a question put to him, his body produces a reaction different from replies given in a normal circumstance.  

These investigative techniques, however humanitarian as an alternative to physical torture, still raise serious questions of individual rights and liberties.[1] More so because the drugs used in these tests have serious and negative effects on the human body, particularly the brain. A class of drugs, known as the Barbiturates, are used to extract information and detect lie of the concerned person. Some of the drugs under this heading are Scopolamine, Pentothal or sodium thiopental, Amytal, Seconal, Butabarbital, Pentobarbital, Belladona and Phenobarbital. Commonly known as the “truth serum”, the term is a misnomer… the drugs are not sera and they do not necessarily bring forth probative truth.[2] Experts have recorded that the barbiturates generally affect the most advanced brain centers. The cerebral cortex- that region where most complex mental activities occur- yields first to the disturbance caused to the nerve-tissue function. Even the lowest of doses of barbiturates weaken the functioning of the cerebral cortex; the drugs disable the sensory circuits of the human nervous system. The larger doses of barbiturates may even cause death by stopping respiration. It occurs because of the cortex no longer actively integrating information, and the cerebellum, the “lesser brain” sometimes called the great modulator of nervous function, ceases to perform as a control box.[3] Equivalently, some side effects of barbiturates include drowsiness, headache, hypotension, nausea, skin rash, abnormally slow breathing, hallucination, coma, and temporary breathing cessation.[4] More so, experts opine that there is evidence to suggest that individuals with good defenses and emotional control cannot be manipulated or anyone who has who can withstand the stress of competent interrogation in the waking state can do so in narcosis.[5]

THE LAW OF EVIDENCE IN INDIA

The Indian Law of Evidence has no express stand on the issue of admissibility of information procured as a result of narco-analysis test. Although, there are some provisions which entails the position of this law on the technique.

The definition of ‘evidence’ under the Indian Evidence Act, 1872 is as under:

“Evidence” means and includes

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of act under inquiry; such statements are called oral evidence;

(2) All statements including electronic records produced for the inspection of the Court; Such statements are called documentary evidence.[6]

The question then arises, whether the results derived as a result of the narco-analysis test and the brain mapping can and should be considered as evidence, or not. A combined reading of Ss. 24 to 27[7] of the Act suggest that such statements would be barred from being admissible as evidence and be rendered meaningless in event of even a slimmest hint coercion, intimidation, or any other kind of influence. Confessions caused by inducement, threat or promise are inadmissible under Section 24[8] of the Indian Evidence Act. When an accused undergoes the narco-analysis test, he has no control over his conscious and has to answers questions put to him against his will. Impliedly, such confessions become inadmissible in Court of law. The confessions made in presence of the agency conducting the procedure and the police are also hit by Section 25 of the Act.[9]

THE CASE OF SMT. SELVI V. STATE OF KARNATAKA[10]

The case pertains to the legality of three scientific tests, viz. the narco-analysis, polygraph test, and the Brain Electrical Activation Profile (BEAP) on the touchstone of Arts. 20(3) and 21 of the Constitution of India and under Ss. 161(2) of the Code of Criminal Procedure, 1973. The matter at hand pointed out a need to strike a balance between the increasing need for efficient investigative techniques and upholding the right to personal liberty.

The petition was a criminal appeal challenging the involuntary administration of techniques as violative of the principle of right against self-incrimination as envisaged under Art. 20(3) of the Indian Constitution. The appellant contended that subjecting accused or witnesses to such diagnostic tests without their consent is completely violative of the fundamental rights. It was termed that “these scientific techniques are a softer alternative to the …use of ‘third degree methods’ by investigators.”[11]

The State contended that since it is their obligation to prevent crimes and criminal activities, these tests aid in extracting information and collecting evidence where it is particularly challenging to do so. Since procedural administration of substances into the body does not cause any physical harm, it should not pose any issues whatsoever.

Thus, the issues framed by the Court were as follows:

I.                    Whether the involuntary administration of the impugned techniques violates the ‘right against self-incrimination’ enumerated in Article 20(3) of the Constitution?

I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?

I-B. Whether the results derived from the impugned techniques amount to ‘testimonial compulsion’ thereby attracting the bar of Article 20(3)?

II.                 Whether the involuntary administration of the impugned techniques is a reasonable restriction on ‘personal liberty’ as understood in the context of Article 21 of the Constitution?

While dealing with the debate on the issue, the Court placed reliance on various authorities including precedents from the United States and Canada. Also, it perused some of scholarly works on these techniques. It was noted that, the impugned tests are used for various purposes in various fields. Its use particularly in criminal justice system is dichotomous; the need of the hour is that we keep up with the fast pace changes in technology but at the same time no individual can be deprived of his liberty. Thus, the 3-judge Bench held that the involuntary administration of these diagnostic techniques would lead to infringement of ‘right against self-incrimination’. It further elaborated that,

“The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorized as material evidence.”[12]

Thus, an individual, whether an accused or a witness, cannot be made to forcefully undergo any of the said techniques to expose him to any consequences either of penal nature or otherwise. No technical justification can be legitimate that permits invasion into a person’s mental privacy. The results inferred from the use of these techniques, due to their limitations, also are in conflict with the principle of ‘right to fair trial’ which the Apex Court has upheld in several of its judgement.

Interestingly, it should be noted that the Court did leave some scope for voluntary administration of the impugned techniques with regards to criminal investigation with proper safeguards in place. Even in such instances, the test results by themselves cannot be admitted as standalone evidence, reason being lack of control of the subject over his responses during the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.[13]

The Bench also reiterated the Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ of 2000 as issued by the National Human Rights Commission and laid strict emphasis for duly following them. Briefly, they are as follows:

1.      An option should be provided to the accused to avail the Lie Detector Tests. Such a test can be administered only after such accused has consented to it.

2.      If the accused opts for the test after such option has been given to him, he should be given access to a lawyer. The lawyer and the police should explain to him the physical, emotional and legal implications of the test.

3.      The consent of the accused should be recorded before a Judicial Magistrate.

4.      The accused having agreed to undergo the lie detection test should be duly represented by a lawyer at the time of hearing before the Magistrate.

5.      The accused person must be explained, at the hearing, in clear terms that statements by him shall not be considered as ‘confessional statements’ made to the Magistrate and shall be regarded as statement made to the Police.

6.      The duty is cast on the Magistrate to consider all the factors relating to the detention of the accused, including the length of such detention and nature of interrogation.

7.      The actual procedure of Lie Detection Test shall be conducted by an independent agency, such as a hospital and shall be duly recorded. The procedure must be carried out in the presence of the lawyer.

8.      The information received, the full medical and factual narration of it must be taken on record.

CONCLUSION

The narco-analysis test, the brain mapping as well as the polygraph test hold a very high value in criminal investigation process. Although the Indian Evidence Act, 1872 is silent on employing these techniques, the constitutional courts have time and again touched upon the issue of whether such methods should be employed or not through its judgments in a selected number of cases. The issue of should these processes be permitted to be used in investigations and interrogations is still widely debated among jurists, scholars and the commoners alike.

The technique of narco-analysis has proved to be valuable and profoundly effective in sensational cases like the Aarushi Talwar murder case, the Nithari killings case, the Telgi scam, and the Mumbai Bomb Blasts case. The powers of the police authorities have been curbed by the provisions of the Constitution as well as other special and local legislations, and act as a bar on the way in which they can be exercised. Though, through the significant judgment in Smt. Selvi, the Supreme Court has cleared the air on when can these techniques are employed and when can they be not, the authorities need to rethink upon the use of these scientific methods of investigation. The side effects placed on record by experts should in no way hamper further investigation and controlled experiments of the said drugs. The tests have the potential to essentially ensure fair and timely justice.