No narco test without consent, rules Supreme Court (Intro Roundup)

NEW DELHI - Narco, polygraph and brain mapping tests can no more be conducted on anyone, either an accused or a suspect, without his/her consent, the Supreme Court said Wednesday in a ruling that was hailed by activists and lawyers.

A bench of Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and J.M. Panchal said the forcible administration of these tests was “an unwarranted intrusion into the personal liberty” of those facing criminal offences.

“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,” the court said.

The court said these forcible tests violated Article 20(3) of the constitution that says no person accused of an offence can be compelled to be a witness against himself.

In our considered opinion, the compulsory administration of the impugned (narco, polygraph and brain mapping) techniques violates the ‘right against self-incrimination’, the bench said.

It added that even in cases where a person voluntarily submits to undergo the tests to establish his or her innocence, guidelines issued by the National Human Rights Commission (NHRC) would have to be observed.

Chief Justice Balakrishnan said any confession of guilt by an accused during these tests could not be treated as evidence in the trial court.

“The results obtained from each of the impugned tests bear a `testimonial’ character and they cannot be categorized as material evidence,” the bench said.

“Placing reliance on the results gathered from these techniques comes into conflict with the ‘right to fair trial’…Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self-incrimination’,” it said.

The Supreme Court had reserved the verdict on a bunch of petitions moved by ‘godmother’ Santokben Jadeja, underworld don Arun Gawli and others challenging the validity of these tests.

The court said: “One could argue that some of the parties who will benefit from this decision are hardened criminals who have no regard for societal values.”

“It must be borne in mind that in constitutional adjudication our concerns are not confined to the facts at hand but extend to the implications of our decision for the whole population as well as the future generations.”

Noted civil liberties lawyer Prashant Bhushan hailed the judgment.

“Quite apart from the fact that narco analysis is known to be a very imperfect, uncertain and hazardous procedure, (at times) it also gives you incorrect information,” he said.

Mumbai-based senior lawyer Majid Memon described it as an important ruling. “No person can be compelled to be a witness against himself; they have the right to silence.”

Rights activist Shravani Sharma added: “It is a welcome judgment. It is often seen that helpless poor people, who are falsely implicated in cases, are made to go through these tests.”

Lawyer Rebecca M. John, counsel for Maoist ideologue Kobad Ghandy, told IANS: “This should have been done a long time ago. Narco test is unconstitutional. The Supreme Court has simply upheld the rule of law.”

Harsh Behl, spokesperson of the Central Bureau of Investigation (CBI), which has often used narco tests, refused to comment.

Narco-analysis, polygraph and brain-mapping tests are often used to help investigations into crime. All three are different from each other but are all aimed at collecting information.

Narco-analysis is a controlled administration of intravenous hypnotic medications called truth drugs on a suspect to procure vital information.

A polygraph, popularly known as a lie detector, measures and records physiological indices such as blood pressure, pulse, respiration and breathing rhythms and skin conductivity while a suspect is quizzed.

Deceptive answers are said to produce physiological responses that can be differentiated from those associated with non-deceptive answers.

Brain-mapping is a comprehensive analysis of brainwave frequency bandwidths. In this, forensic experts apply unique neuroscience techniques to find if a suspect’s brain recognises things from a crime scene that 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).

Among the Indians who have undergone some of these tests in recent times are underworld don Abu Salem, main accused in the 1993 serial blast in Mumbai, fraudster Abdul Karim Telgi, charged with printing and circulating duplicate stamps and stamp papers, Sadhvi Pragya Singh Thakur, who has been linked to the Malegaon bombing of September 2008, and businessman Moninder Singh Pandher and domestic help Surinder Koli, who are accused in the horrific 2006 killings of children and women at Nithari near New Delhi.