9911796707
TMI Blog2010 (5) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitting the use of the impugned techniques in a variety of settings. 2. Objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent. Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future as well as in circumstances where it is difficult to gather evidence through ordinary means. In some of the impugned judgments, reliance has been placed on certain provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to fully co-operate with investigation agencies. It has also been urged that administering these techniques does not cause any bodily harm and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to include a `right against cruel, inhuman or degrading treatment', which requires us to determine whether the involuntary administration of the impugned techniques violates this right whose scope corresponds with evolving international human rights norms. We must also consider contentions that have invoked the test subject's `right to privacy', both in a physical and mental sense. 5. The scientific validity of the impugned techniques has been questioned and it is argued that their results are not entirely reliable. For instance, the narcoanalysis technique involves the intravenous administration of sodium pentothal, a drug which lowers inhibitions on part of the subject and induces the person to talk freely. However, empirical studies suggest that the drug-induced revelations need not necessarily be true. Polygraph examination and the BEAP test are methods which serve the respective purposes of lie-detection and gauging the subject's familiarity with information related to the crime. These techniques are essentially confirmatory in nature, wherein inferences are drawn from the physiological responses of the subject. However, the reliability of these methods ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the impugned techniques. Hence, a description of each of the test procedures is followed by an overview of their possible uses, both within and outside the criminal justice system. It is also necessary to gauge the limitations of these techniques. Owing to the dearth of Indian decisions on this subject, we must look to precedents from foreign jurisdictions which deal with the application of these techniques in the area of criminal justice. DESCRIPTIONS OF TESTS - USES, LIMITATIONS AND PRECEDENTS Polygraph Examination 9. The origins of polygraph examination have been traced back to the efforts of Lombroso, a criminologist who experimented with a machine that measured blood pressure and pulse to assess the honesty of persons suspected of criminal conduct. His device was called a hydrosphygmograph. A similar device was used by psychologist William Marston during World War I in espionage cases, which proved to be a precursor to its use in the criminal justice system. In 1921, John Larson incorporated the measurement of respiration rate and by 1939 Leonard Keeler added skin conductance and an amplifier to the parameters examined by a polygraph machine. 10. The theory behind polygrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of control questions and relevant questions. The control questions are irrelevant to the facts being investigated but they are intended to provoke distinct physiological responses, as well as false denials. These responses are compared with the responses triggered by the relevant questions. Theoretically, a truthful subject will show greater physiological responses to the control questions which he/she has reluctantly answered falsely, than to the relevant questions, which the subject can easily answer truthfully. Conversely, a deceptive subject will show greater physiological responses while giving false answers to relevant questions in comparison to the responses triggered by false answers to control questions. In other words, a guilty subject is more likely to be concerned with lying about the relevant facts as opposed to lying about other facts in general. An innocent subject will have no trouble in truthfully answering the relevant questions but will have trouble in giving false answers to control questions. The scoring of the tests is done by assigning a numerical value, positive or negative, to each response given by the subject. After accounting for all the numbers, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ygraph tests for checking the antecedents and monitoring the conduct of public employees has encouraged private employers to resort to the same. In fact the Employee Polygraph Protection Act, 1998 was designed to restrict their use for employee screening. This development must be noted because the unqualified acceptance of `Lie-detector tests' in India's criminal justice system could have the unintended consequence of encouraging their use by private parties. 16. Polygraph tests have several limitations and therefore a margin for errors. The premise behind these tests is questionable because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained. The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion was stated in its report, i.e. The Polygraph and Lie-Detection: Committee to Review the scientific evidence on the Polygraph (Washington D.C.: National Academies Press, 2003) at pp. 212-213: "Polygraph Accuracy: Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved. Theoretical Basis: The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are trigg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inee experiences fear, which may occur, for example, when the person is afraid that his or her honest answers will not be believed by the polygraph examiner. The other popular test (Guilty Knowledge Test, ...) is built upon the premise that guilty examinees will be more aroused concerning certain information due to different orienting reactions, that is, they will show enhanced orienting responses when recognising crucial details of a crime. This premise has strong support in psychophysiological research (Fiedler, Schmidt & Stahl, 2002)." 21. Coming to judicial precedents, a decision reported as Frye v. United States, (1923) 54 App DC 46, dealt with a precursor to the polygraph which detected deception by measuring changes in systolic blood pressure. In that case the defendant was subjected to this test before the trial and his counsel had requested the court that the scientist who had conducted the same should be allowed to give expert testimony about the results. Both the trial court and the appellate court rejected the request for admitting such testimony. The appellate court identified the considerations that would govern the admissibility of expert testimony based on scientif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chnical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 23. It was held that the trial court should have evaluated the scientific evidence as per Rule 702 of the Federal Rules of Evidence which mandates an inquiry into the relevance as well as the reliability of the scientific technique in question. The majority opinion (Blackmun, J.) noted that the trial judge's first step should be a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and whether it can be properly applied to the facts in issue. Several other considerations will be applicable, such as: 7 whether the theory or technique in question can be and has been tested 7 whether it has been subjected to peer review and publication 7 its known or potential error rate 7 the existence and maintenance of standards controlling its operation 7 whether it has attracted widespread acceptance within the scientific community 24. It was furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te one after his/her credibility has been attacked by the other side. Despite these observations, the trial court did not admit the polygraph results on remand in this particular case. 27. However, after Daubert (supra.) prescribed a more liberal criterion for determining the admissibility of scientific evidence, some Courts ruled that weightage could be given to polygraph results. For instance in United States v. Posado, 57 F.3d 428 (5th Circ. 1995), the facts related to a pre-trial evidentiary hearing where the defendants had asked for the exclusion of forty-four kilograms of cocaine that had been recovered from their luggage at an airport. The District Court had refused to consider polygraph evidence given by the defendants in support of their version of events leading up to the seizure of the drugs and their arrest. On appeal, the Fifth Circuit Court held that the rationale for disregarding polygraph evidence did not survive the Daubert decision. The Court proceeded to remand the case to the trial court and directed that the admissibility of the polygraph results should be assessed as per the factors enumerated in Daubert (supra.). It was held, Id. at p. 434: "There can be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing polygraph tests and 20 hours of continuing education within the past year; the polygraph examination must be tape recorded in its entirety; the polygraph charts must be scored quantitatively in a manner generally accepted as reliable by polygraph experts; all polygraph materials must be provided to the opposing party at least 10 days before trial; and all polygraph examinations conducted on the subject must be disclosed. It was found that all of these requirements had been complied with in the facts at hand. The District Court concluded with these words, Id. at p. 896: "the Court finds that the expert opinion testimony regarding the polygraph results of defendant Galbreth is admissible. However, because the evidentiary reliability of opinion testimony regarding the results of a particular polygraph test is dependent upon a properly conducted examination by a highly qualified, experienced and skilful examiner, nothing in this opinion is intended to reflect the judgment that polygraph results are per se admissible. Rather, in the context of the polygraph technique, trial courts must engage upon a case specific inquiry to determine the admissibility of such testimony." 29. We w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , shall not be admitted into evidence." 31. The facts were that Scheffer, a U.S. Air Force serviceman had faced court-martial proceedings because a routine urinalysis showed that he had consumed methamphetamines. However, a polygraph test suggested that he had been truthful in denying the intentional consumption of the drugs. His defence of `innocent ingestion' was not accepted during the court-martial proceedings and the polygraph results were not admitted in evidence. The Air Force Court of Criminal Appeals affirmed the decision given in the court-martial proceedings but the Court of Appeals for the Armed Forces reversed the same by holding that an absolute exclusion of polygraph evidence (offered to rebut an attack on the credibility of the accused) would violate Scheffer's Sixth Amendment right to present a defence. Hence, the matter reached the Supreme Court which decided that the exclusion of polygraph evidence did not violate the said constitutional right. 32. Eight judges agreed that testimony about polygraph test results should not be admissible on account of the inherent unreliability of the results obtained. Four judges agreed that reliance on polygraph results ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdictions may legitimately determine that the aura of infallibility attending polygraph evidence can lead jurors to abandon their duty to assess credibility and guilt." 35. On the issue of encouraging litigation that is collateral to the primary purpose of a trial, it was held, Id. at p. 314: "Allowing proffers of polygraph evidence would inevitably entail assessments of such issues as whether the test and control questions were appropriate, whether a particular polygraph examiner was qualified and had properly interpreted the physiological responses, and whether other factors such as countermeasures employed by the examinee had distorted the exam results. Such assessments would be required in each and every case. It thus offends no constitutional principle for the President to conclude that a per se rule excluding all polygraph evidence is appropriate. Because litigation over the admissibility of polygraph evidence is by its very nature collateral, a per se rule prohibiting its admission is not an arbitrary or disproportionate means of avoiding it." 36. In the same case, Kennedy, J. filed an opinion which was joined by four judges. While there was agreement on the questiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not fall within any of the well recognized exceptions to the operation of the rule - where it is permitted to rebut the allegation of a recent fabrication or to show physical, mental or emotional condition - it should be rejected. To do otherwise is to open the trial process to the time-consuming and confusing consideration of collateral issues and to deflect the focus of the proceedings from their fundamental issue of guilt or innocence. This view is summarized by D.W. Elliott in `Lie-Detector Evidence: Lessons from the American Experience' in Well and Truly Tried (Law Book Co., 1982), at pp. 129-30: A defendant who attempts to put in the results of a test showing this truthfulness on the matters in issue is bound to fall foul of the rule against self- serving statements or, as it is sometimes called, the rule that a party cannot manufacture evidence for himself, and the falling foul will not be in any mere technical sense. The rule is sometimes applied in a mechanical unintelligent way to exclude evidence about which no realistic objection could be raised, as the leading case, Gillie v. Posho shows; but striking down defence polygraph evidence on this ground would be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... polygraph. On that question we were not supplied with sufficient evidence to reach a conclusion. However, it may be said that even the finding of a significant percentage of errors in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific. It exists within our established court procedures and must always be guarded against. The compelling reason, in my view, for the exclusion of the evidence of polygraph results in judicial proceedings is two-fold. First, the admission of polygraph evidence would run counter to the well established rules of evidence which have been referred to. Second, while there is no reason why the rules of evidence should not be modified where improvement will result, it is my view that the admission of polygraph evidence will serve no purpose which is not already served. It will disrupt proceedings, cause delays, and lead to numerous complications which will result in no greater degree of certainty in the process than that which already exists. 20. Since litigation replaced trial by combat, the determination of fact, including the veracity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patients were prone to make extremely naove remarks about personal matters, which, in their normal state, would never have revealed. Probably the earliest direct attempt to utilize this phenomenon in criminal interrogation stemmed from observations of a mild type of anaesthesia commonly used in obstetrical practice during the period of about 1903-1915 and known as `Twilight sleep'. This anaesthesia was obtained by hypodermic injection of solutions of morphine and scopolamine (also called `hyoscine') followed by intermittent chloroform inhalations if needed. The pain relieving qualities of morphine are well known. Scopolamine appears to have the added property of blocking out memories of recent events. By the combination of these drugs in suitable dosage, morphine dulled labor pains without materially interfering with the muscular contractions of labor, while scopolamine wiped out subsequent memories of the delivery room ordeal. The technique was widely used in Europe but soon fell into disrepute among obstetricians of this country, largely due to overdosage. During the period of extensive use of `twilight sleep' it was a common experience that women who were under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lligently counteract such a force, it was first necessary to identify it. Thus, the use of sedative drugs, first to analyze the source of disturbance (narcoanalysis) and later to obtain the proper frame of mind in which the patient could and would `talk out' his difficulties, and, as they say `get them off his chest' - and thus relieve himself (narco-synthesis or narco-therapy) - was employed with signal success.
In the narcoanalysis of war neuroses a very light narcosis is most desirable. With small doses of injectable barbiturates (sodium amytal or sodium pentothal) or with light inhalations of nitrous oxide or somnoform, the subject pours out his pent-up emotions without much prodding by the interrogator."
43. It has been shown that the Central Investigation Agency (C.I.A.) in the U.S.A. had conducted research on the use of sodium pentothal for aiding interrogations in intelligence and counter-terrorism operations, as early as the 1950's [See `Project MKULTRA - The CIA's program of research in behavioral modification', On file with Schaffer Library of Drug Policy, Text available from X X X X Extracts X X X X X X X X Extracts X X X X ..... actually conducts the questioning. Since the tests are meant to aid investigation efforts, the forensic psychologist needs to closely co-operate with the investigators in order to frame appropriate questions. 46. This technique can serve several ends. The revelations could help investigators to uncover vital evidence or to corroborate pre-existing testimonies and prosecution theories. Narcoanalysis tests have also been used to detect `malingering' (faking of amnesia). The premise is that during the `hypnotic stage' the subject is unable to wilfully suppress the memories associated with the relevant facts. Thus, it has been urged that drug-induced revelations can help to narrow down investigation efforts, thereby saving public resources. There is of course a very real possibility that information extracted through such interviews can lead to the uncovering of independent evidence which may be relevant. Hence, we must consider the implications of such derivative use of the drug- induced revelations, even if such revelations are not admissible as evidence. We must also account for the uses of this technique by persons other than investigators and prosecutors. Narcoanalysis te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny about these findings was admitted, thereby leading to a conviction. Subsequently, Raymond Cens filed a civil suit against the psychiatrists alleging assault and illegal search. However, it was decided that the board had used routine psychiatric procedures and since the actual physical damage to the defendant was nominal, the psychiatrists were acquitted. At the time, this case created quite a stir and the Council of the Paris Bar Association had passed a resolution against the use of drugs during interrogation. [Refer C.W. Muehlberger (1951) at p. 527; The Raymond Cens case has also been discussed in the following article: J.P. Gagnieur, `The Judicial use of Psychonarcosis in France', 40(3) Journal of Criminal Law and Criminology 370-380 (Sept.-Oct. 1949)] 49. An article published in 1961 [Andre A. Moenssens, `Narcoanalysis in Law Enforcement', 52(4) The Journal of Criminal Law, Criminology and Police Science 453-458 (Nov.- Dec. 1961)] had surveyed some judicial precedents from the U.S.A. which dealt with the forensic uses of the narcoanalysis technique. The first reference is to a decision from the State of Missouri reported as State v. Hudson, 314 Mo. 599 (1926). In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions which were based on the results of all the tests considered together. 52. At the federal level, the U.S. Court of Appeals for the Ninth Circuit dealt with a similar issue in Lindsey v. United States, 237 F. 2d 893 (9th Circ. 1956). In that case, the trial court had admitted a psychiatrist's opinion testimony which was based on a clinical examination that included psychological tests and a sodium pentothal induced interview. The subject of the interview was a fifteen-year old girl who had been sexually assaulted and had subsequently testified in a prosecution for rape. On cross-examination, the credibility of the victim's testimony had been doubted and in an attempt to rebut the same, the prosecution had called on the psychiatrist. On the basis of the results of the clinical examination, the psychiatrist offered his professional opinion that the victim had been telling the truth when she had repeated the charges that were previously made to the police. This testimony was admitted as a prior consistent statement to rehabilitate the witness but not considered as substantive evidence. Furthermore, a tape recording of the psychiatrist's interview with the girl, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade some confessional statements. The petitioner's statements were duly recorded by a court reporter. The next day he was taken to the office of the prosecutor where he signed the transcriptions of the statements made by him on the previous day. [The facts of this case have also been discussed in: Charles E. Sheedy, `Narcointerrogation of a Criminal Suspect', 50(2) The Journal of Criminal Law, Criminology and Police Science 118-123 (July- Aug 1959) at pp. 118-119] 55. When the case came up for trial, the counsel for the petitioner brought a motion to exclude the transcripts of the statements from the evidence. However, the trial judge denied this motion and admitted the court reporter's transcription of the confessional statements into evidence. Subsequently, a jury found Townsend to be guilty, thereby leading to his conviction. When the petitioner made a habeas corpus application before a Federal District Court, one of the main arguments advanced was that the fact of Scopolamine's character as a truth-serum had not been brought out at the time of the motion to suppress the statements or even at the trial before the State Court. The Federal District Court denied th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supposedly showed that the scheme was a joke or a prank. The trial court refused to admit the contents of this sodium amytal induced interview and the Fifth Circuit Court upheld this decision. In holding the same, it was also observed, Id. at p. 528: "Moreover, no drug-induced recall of past events which the subject is otherwise unable to recall is any more reliable than the procedure for inducing recall. Here both psychiatrists testified that sodium amytal does not ensure truthful statements. No re-creation or recall, by photograph, demonstration, drug-stimulated recall, or otherwise, would be admissible with so tenuous a predicate." 57. A decision given by the Ninth Circuit Court in United States v. Solomon, 753 F. 2d 1522 (9th Circ. 1985), has been cited by the respondents to support the forensic uses of the narcoanalysis technique. However, a perusal of that judgment shows that neither the actual statements made during narcoanalysis interviews nor the expert testimony relating to the same were given any weightage. The facts were that three individuals, namely Solomon, Wesley and George (a minor at the time of the crime) were accused of having committed robbery and murder by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. We find no abuse of discretion in the trial court's ruling to admit the testimony of the witness George. The court's order denying Solomon's Motion to Suppress reflects a careful balancing of reliability against prejudicial dangers:" 59. However, Wesley wanted to introduce expert testimony by Dr. Montgomery which would explain the effects of sodium amytal as well as the statements made during his own drug- induced interview. The intent was to rehabilitate Wesley's credibility after the prosecution had impeached it with an earlier confession. The trial court had held that even though narcoanalysis was not reliable enough to admit into evidence, Dr. Montgomery could testify about the statements made to him by Wesley, however without an explanation of the circumstances. On this issue, the Ninth Circuit Court referred to the Frye standard for the admissibility of scientific evidence. It was also noted that the trial court had the discretion to draw the necessary balance between the probative value of the evidence and its prejudicial effect. It again took note of the decision in Lindsey v. United States, 237 F. 2d 893 (1956), where the admission of a tape recording o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e utility of a sodium-amytal induced interview for ascertaining the mental state of a subject with regard to past events. It was stated, Id. at p. 1348: "On the two occasions that this Court has considered the questions, we have concluded, based on the then-existing state of scientific knowledge, that testimony derived from a sodium-amytal induced interview is inadmissible to prove the truth of the facts asserted. [See State v. Levitt, 36 N.J. 266, 275 (1961); State v. Sinnott, ...132 A.2d 298 (1957)] Our rule is consistent with the views expressed by other courts that have addressed the issue. The expert testimony adduced at the Rule 8 hearing indicated that the scientific community continues to view testimony induced by sodium amytal as unreliable to ascertain truth. Thus, the trial court's ruling excluding Dr. Sadoff's testimony in the guilt phase was consistent with our precedents, with the weight of authority throughout the country, and also with contemporary scientific knowledge as reflected by the expert testimony." (internal citations omitted) 61. Since a person subjected to the narcoanalysis technique is in a half-conscious state and loses awareness of time a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interrogation of the accused had resulted in his complete emotional disintegration, and hence the statements given were inadmissible. It was also held that the rule in Ibrahim v. R (supra.) that a statement must be induced by `fear of prejudice' or `hope of advantage' in order to be considered involuntary was not a comprehensive test. The word `voluntary' should be given its ordinary and natural meaning so that the circumstances which existed in the present case could also be described as those which resulted in involuntary statements. 64. In a concurring opinion, Beetz., J. drew a comparison between statements made during hypnosis and those made under the influence of a sodium-amytal injection. It was observed, at Para. 91: "91. Finally, voluntariness is incompatible not only with promises and threats but actual violence. Had Horvath made a statement while under the influence of an amytal injection administered without his consent, the statement would have been inadmissible because of the assault, and presumably because also of the effect of the injection on his mind. There was no physical violence in the case at bar. There is not even any evidence of bodily co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of admissibility of testimony, a distinction had been drawn between the statements made during a narcoanalysis interview and the oral testimony given during the trial stage which was allegedly based on the drug-induced statements. Hence, the weight of precedents indicates that both the statements made during narcoanalysis interviews as well as expert testimony relating to the same have not been given weightage in criminal trials. Brain Electrical Activation Profile (BEAP) test 67. The third technique in question is the `Brain Electrical Activation Profile test', also known as the `P300 Waves test'. It is a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring `event-related potentials' (ERP) i.e. electrical wave forms emitted by the brain after it has absorbed an external event. An ERP measurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activities that occur when a person is exposed to a stimulus in the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these wave components the examiner can make inferences about the individual's familiarity with the information related to the crime. [Refer: Laboratory Procedure Manual - Brain Electrical Activation Profile (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi - 2005)] 70. The P300 wave test was the precursor to other neuroscientific techniques such as `Brain Fingerprinting' developed by Dr. Lawrence Farwell. The latter technique has been promoted in the context of criminal justice and has already been the subject of litigation. There is an important difference between the `P300 waves test' that has been used by Forensic Science Laboratories in India and the `Brain Fingerprinting' technique. Dr. Lawrence Farwell has argued that the P300 wave component is not an isolated sensory brain effect but it is part of a longer response that continues to take place after the initial P300 stimulus has occurred. This extended response bears a correlation with the cognitive processing that takes place slightly beyond the P300 wave and continues in the range of 300-800 milliseconds after the exposure to the stimulus. This extended brain wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents and employees on the basis of their cognitive responses. There are several other concerns with the development of these `mind-reading' technologies especially those relating to the privacy of individuals. [Refer: Henry T. Greely, `Chapter 17: The social effects of advances in neuroscience: Legal problems, legal perspectives', in Judy Illes (ed.), Neuroethics - Defining the issues in theory, practice and policy (Oxford University Press, 2005) at pp. 245-263] 73. Even though the P300 Wave component has been the subject of considerable research, its uses in the criminal justice system have not received much scholarly attention. Dr. Lawrence Farwell's `Brain Fingerprinting' technique has attracted considerable publicity but has not been the subject of any rigorous independent study. Besides this preliminary doubt, an important objection is centred on the inherent difficulty of designing the appropriate `probes' for the test. Even if the `probes' are prepared by an examiner who is thoroughly familiar with all aspects of the facts being investigated, there is always a chance that a subject may have had prior exposure to the material probes. In case of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offer of leniency from the investigating police and doubts were raised about the credibility of other witnesses as well. Subsequently it was learnt that at the time of the trial, the police had not shared with the defence some investigative reports that indicated the possible involvement of another individual in the said crime. Harrington had also undergone a `Brain Fingerprinting' test under the supervision of Dr. Lawrence Farwell. The test results showed that he had no memories of the `probes' relating to the act of murder. Hence, Harrington approached the District Court seeking the vacation of his conviction and an order for a new trial. Post-conviction relief was sought on grounds of newly discovered evidence which included recantation by the prosecution's primary witness, the past suppression of police investigative reports which implicated another suspect and the results of the `Brain Fingerprinting' tests. However, the District Court denied this application for post-conviction relief. This was followed by an appeal before the Supreme Court of Iowa. 76. The appellate court concluded that Harrington's appeal was timely and his action was not time barre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner's post-conviction request for relief. Petitioner cites one published opinion, Harrington v. State, 659 N.W.2d 509 (Iowa 2003), in which a brain fingerprinting test result was raised as error and discussed by the Iowa Supreme Court (`a novel computer-based brain testing'). However, while the lower court in Iowa appears to have admitted the evidence under non-Daubert circumstances, the test did not ultimately factor into the Iowa Supreme Court's published decision in any way." Accordingly, the following conclusion was stated, Id. at p. 836: "18. Therefore, based upon the evidence presented, we find the Brain Fingerprinting evidence is procedurally barred under the Act and our prior cases, as it could have been raised in Petitioner's direct appeal and, indeed, in his first application for post-conviction relief. We further find a lack of sufficient evidence that would support a conclusion that Petitioner is factually innocent or that Brain Fingerprinting, based solely upon the MERMER effect, would survive a Daubert analysis." CONTENTIOUS ISSUES IN THE PRESENT CASE 78. As per the Laboratory Procedure manuals, the impugned tests are being conducted at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se tests could be conducted on witnesses to aid investigative efforts. As mentioned earlier, this could serve several objectives, namely those of gathering clues which could lead to the discovery of relevant evidence, to assess the credibility of previous testimony or even to ascertain the mental state of an individual. With these uses in mind, we have to decide whether the compulsory administration of these tests violates the `right against self-incrimination' which finds place in Article 20(3) of the Constitution of India. Along with the `rule against double-jeopardy' and the `rule against retrospective criminalisation' enumerated in Article 20, it is one of the fundamental protections that controls interactions between individuals and the criminal justice system. Article 20(3) reads as follows: "No person accused of any offence shall be compelled to be a witness against himself." 81. The interrelationship between the `right against self- incrimination' and the `right to fair trial' has been recognised in most jurisdictions as well as international human rights instruments. For example, the U.S. Constitution incorporates the `privilege against self-incrimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order." 83. Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens have an obligation to co- operate with ongoing investigations. For instance reliance has been placed on Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the procedure followed by English judicial bodies such as the Star Chamber and High Commissions which required defendants and suspects to take ex officio oaths. These bodies mainly decided cases involving religious non-conformism in a Protestant dominated society, as well as offences like treason and sedition. Under an ex officio oath the defendant was required to answer all questions posed by the judges and prosecutors during the trial and the failure to do so would attract punishments that often involved physical torture. It was the resistance to this practice of compelling the accused to speak which led to demands for a `right to silence'. 86. In an academic commentary, Leonard Levy (1969) had pointed out that the doctrinal origins of the right against self- incrimination could be traced back to the Latin maxim `Nemo tenetur seipsum prodere' (i.e. no one is bound to accuse himself) and the evolution of the concept of `due process of law' enumerated in the Magna Carta. [Refer: Leonard Levy, `The right against self-incrimination: history and judicial history', 84(1) Political Science Quarterly 1-29 (March 1969)] The use of the ex officio oath by the ecclesiasti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riticism. Even after their abolition, the defendants in criminal courts did not have the right to be represented by a lawyer (`right to counsel') or the right to request the presence of defence witnesses (`right of compulsory process'). Hence, defendants were more or less compelled to testify on their own behalf. Even though the threat of physical torture on account of remaining silent had been removed, the defendant would face a high risk of conviction if he/she did not respond to the charges by answering the material questions posed by the judge and the prosecutor. In presenting his/her own defence during the trial, there was a strong likelihood that the contents of such testimony could strengthen the case of the prosecution and lead to conviction. With the passage of time, the right of a criminal defendant to be represented by a lawyer eventually emerged in the common law tradition. A watershed in this regard was the Treason Act of 1696 which provided for a `right to counsel' as well as `compulsory process' in cases involving offences such as treason. Gradually, the right to be defended by a counsel was extended to more offences, but the role of the counsel was l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were made to advise the accused that he might decline to answer questions put to him in the pre-trial inquiry and to caution him that his answers to pre-trial interrogation might be used as evidence against him during the trial stage. 90. The judgment in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, at pp. 438-439, referred to the following extract from a decision of the US Supreme Court in Brown v. Walker, 161 US 591 (1896), which had later been approvingly cited by Warren, C.J. in Miranda v. Arizona, 384 US 436 (1966): "The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which have long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, were not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation efforts. 92. The concerns about the `voluntariness' of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements - often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, `the right against self-incrimination' is a vital safeguard against torture and other `third-degree methods' that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such `short-cuts' will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state- individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contests with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self- deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent." A similar view was articulated by Lord Hailsham of St. Marylebone in Wong Kam-ming v. R , [1979] 1 All ER 939, at p. 946 : "any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage. 97. In recent years, scholars such as David Dolinko (1986), Akhil Reed Amar (1997) and Mike Redmayne (2007) among others have encapsulated the objections to the scope of this right. [See: David Dolinko, `Is There a Rationale for the Privilege Against Self-Incrimination?', 33 University of California Los Angeles Law Review 1063 (1986); Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven: Yale University Press, 1997) at pp. 65-70; Mike Redmayne, `Re-thinking the Privilege against Self- incrimination', 27 Oxford Journal of Legal Studies 209-232 (Summer 2007)] It is argued that in aiming to create a fair state-individual balance in criminal cases, the task of the investigators and prosecutors is made unduly difficult by allowing the accused to remain silent. If the overall intent of the criminal justice system is to ensure public safety through expediency in investigations and prosecutions, it is urged that the privilege against self-incrimination protects the guilty at the cost of such utilitarian objectives. Another criticism is that adopting a broad view of this right does not deter improper practices during investigation and it inste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the impugned tests will only be sought to boost investigation efforts and that the test results by themselves will not be admissible as evidence. The next prong of this position is that if the test results enable the investigators to discover independent materials that are relevant to the case, such subsequently discovered materials should be admissible during trial. In order to evaluate this position, we must answer the following questions: 7 Firstly, we should clarify the scope of the `right against self-incrimination' - i.e. whether it should be construed as a broad protection that extends to the investigation stage or should it be viewed as a narrower right confined to the trial stage? 7 Secondly, we must examine the ambit of the words `accused of any offence' in Article 20(3) - i.e. whether the protection is available only to persons who are formally accused in criminal cases, or does it extend to include suspects and witnesses as well as those who apprehend incrimination in cases other than the one being investigated? Thirdly, we must evaluate the evidentiary value of independent materials that are subsequently discovered with the help of the test resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese observations were cited with approval by B.P. Sinha, C.J. in State of Bombay v. Kathi Kalu Oghad & Others, [1962] 3 SCR 10, at pp. 26-28. In the minority opinion, Das Gupta, J. affirmed the same position, Id. at p. 40: "If the protection was intended to be confined to being a witness in Court then really it would have been an idle protection. It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do proved in court through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. The contention that the protection afforded by Article 20(3) is limited to the stage of trial must therefore be rejected." 102. The broader view of Article 20(3) was consolidated in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424: "Any giving of evidence, any furnishing of information, if likely to have an incriminating impact, answers the description of being a witness against oneself. Not being limited to the forensic stage by express words in Article 20(3), we have to construe the expression to apply to every stage where furnishing of information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [...] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more `will benefit only the recidivist and the professional.' [Brief for the National District Attorneys Association as amicus curiae, p. 14] Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. [Cited from Escobedo v. State of Illinois, 378 U.S. 478, 485 ...] Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires." 106. The majority decision in Miranda (supra.) was not a sudden development in U.S. constitutional law. The scope of the privilege against self-incrimination had been progressively expanded in several prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. 109. Therefore the `right against self-incrimination' protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. Krishna Iyer, J. clarified this position, (1978) 2 SCC 424, at p. 435: "The learned Advocate General, influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind. Proviso. - Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer." 111. Since the extension of the `right against self- incrimination' to suspects and witnesses has its basis in Section 161(2), CrPC it is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings. In administrative and quasi-criminal proceedings, the protection of Article 20(3) becomes available only afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which is punishable at the trial before a Magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate." 113. In Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600, one of the contentious issues was whether the statements recorded by a Railway Police Force (RPF) officer during an inquiry under the Railway Property (Unlawful Possession) Act, 1996 would attract the protection of Article 20(3). Sarkaria, J. held that such an inquiry was substantially different from an investigation contemplated under the CrPC, and therefore formal accusation was a necessary condition for a person to claim the protection of Article 20(3). It was observed, Id. at p. 623: "To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person `accused of an offence' within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court. In the instant case no such formal accusation has been made against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant facts." 116. Reliance was also placed on the decision of the US Supreme Court in Samuel Hoffman v. United States, 341 US 479 (1951). The controversy therein was whether the privilege against self-incrimination was available to a person who was called on to testify as a witness in a grand-jury investigation. Clark, J. answered the question in the affirmative, at p. 486: "The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. [...] But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. [...]" (internal citations omitted) "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure may result."(at p. 487) 117. However, Krishna Iyer, J. also cautioned against including in the prohibition even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Procedure and the Indian Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a judicial magistrate which can be given weightage. The doctrine of excluding the `fruits of a poisonous tree' has been incorporated in Sections 24, 25 and 26 of the Indian Evidence Act, 1872 which read as follows: 24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 25. Confession to police officer not proved. - No confession made to a police officer shall be proved as against a person accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of cl. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of s. 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information." (emphasis supplied) This position was made amply clear at pp. 35-36: "Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage. The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. If we were to permit the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the `right against self-incrimination' will be rendered meaningless. The law confers on `any person' who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rates the `rule against adverse inferences from silence' which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b) of Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. DPP, (1935) AC 462, at p. 481: "The `right to silence' is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court." 127. The 180th Report of the Law Commission of India (May 2002) dealt with this very issue. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable in such circumstances, reliance can be placed on Article 21 if such non-penal consequences amount to a violation of `personal liberty' as contemplated under the Constitution. In the past, this Court has recognised the rights of prisoners (undertrials as well as convicts) as well as individuals in other custodial environments to receive `fair, just and equitable' treatment. For instance in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, it was decided that practices such as `solitary confinement' and the use of bar- fetters in jails were violative of Article 21. Hence, in circumstances where persons who refuse to answer questions during the investigative stage are exposed to adverse consequences of a non-penal nature, the inquiry should account for the expansive scope of Article 21 rather than the right contemplated by Article 20(3). I-B. Whether the results derived from the impugned techniques amount to `testimonial compulsion' thereby attracting the bar of Article 20(3)? 129. The next issue is whether the results gathered from the impugned tests amount to `testimonial compulsion', thereby attracting the prohibition of Article 20(3). For this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gical characteristics rather than these verbal responses. In the BEAP test, the subject is not required to give any verbal responses at all and inferences are drawn from the measurement of electrical activity in the brain. In the impugned judgments, it has been held that the results obtained from both the Polygraph examination and the BEAP test do not amount to `testimony' thereby lying outside the protective scope of Article 20(3). The same assertion has been reiterated before us by the counsel for the respondents. In order to evaluate this position, we must examine the contours of the expression `testimonial compulsion'. 132. The question of what constitutes `testimonial compulsion' for the purpose of Article 20(3) was addressed in M.P. Sharma's case (supra.). In that case, the Court considered whether the issuance of search warrants in the course of an investigation into the affairs of a company (following allegations of misappropriation and embezzlement) amounted to an infringement of Article 20(3). The search warrants issued under Section 96 of the erstwhile Code of Criminal Procedure, 1898 authorised the investigating agencies to search the premises and seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ches to arrive at this conclusion. In the majority opinion it was held that the ambit of the expression `to be a witness' was narrower than that of `furnishing evidence'. B.P. Sinha, C.J. observed, [1962] 3 SCR 10, at pp. 29-32: "`To be a witness' may be equivalent to `furnishing evidence' in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. `Furnishing evidence' in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self- incrimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a `personal testimony'. The giving of a `personal testimony' must depend on his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to `furnishing evidence' in the larger sense, is not included within the expression `to be a witness'. In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person atleast probable, considered by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be. There can be no doubt that to the ordinary user of English words, the word `witness' is always associated with evidence, so that to say that `to be a witness' is to `furnish evidence' is really to keep to the natural meaning of the words. It is clear from the scheme of the various provisions, dealing with the matter that the governing idea is that to be evidence, the oral statement or a statement contained in a document, shall have a tendency to prove a fact - whether it be a fact in issue or a relevant fact - which is sought to be proved. Though this definition of evidence is in respect of proceedings in Court it will be proper, once we have come to the conclusion, that the protection of Art. 20(3) is available even at the stage of investigation, to hold that at that stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact. The illustrations we have given above show clearly that it is not only by imparting of his knowledge that an accused person assists the proving of a fact; he can do so even by other means, such as the production of documents which though not containing his own knowledge would have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness' in Art. 20(3) should be equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own handwriting even though it may tend to prove facts in issue or relevant facts against him." 136. Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling precedent, it will be useful to re- state the two main premises for understanding the scope of `testimonial compulsion'. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to `personal testimony' thereby coming within the prohibition contemplated by Article 20(3). In most cases, such `personal testimony' can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; However, it was cautioned that the privilege applied to testimonial communications, irrespective of what form they might take. Hence it was recognised that the privilege not only extended to verbal communications, but also to written words as well as gestures intended to communicate [for, e.g., pointing or nodding]. This line of thinking becomes clear because the majority opinion indicated that the distinction between testimonial and physical acts may not be readily applicable in the case of Lie-Detector tests. Brennan, J. had noted, 384 US 757 (1966), at p. 764: "Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain `physical evidence,' for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing." Evolution of the law on `medical examination' 140. With respect to the testimonial-physical distinction, an important statutory development in our legal system was the introduction of provisions for medical examination with the overhauling of the Code of Criminal Procedure in 1973. Sections 53 and 54 of the CrPC contemplate the medical examination of a person who has been arrested, either at the instance of the investigating officer or even the arrested person himself. The same can also be done at the direction of the jurisdictional court. 141. However, there were no provisions for authorising such a medical examination in the erstwhile Code of Criminal Procedure, 1898. The absence of a statutory basis for the same had led courts to hold that a medical examination could not be conducted without the prior consent of the person who was to be subjected to the same. For example in Bhondar v. Emperor, AIR 1931 Cal 601, Lord Williams, J. held, at p. 602: "If it were permitted forcibly to take hold of a prisoner and examine his body med ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been summarised [Fn 8 - Emerson G., `Due Process and the American Criminal Trial', 33 Australian Law Journal 223, 231 (1964)] `Less certain is the protection accorded to the defendant with regard to non-testimonial physical evidence other than personal papers. Can the accused be forced to supply a sample of his blood or urine if the resultant tests are likely to further the prosecution's case? Can he be forced to give his finger prints to wear a disguise or certain clothing, to supply a pair of shoes which might match footprints at the scene of the crime, to stand in a line-up, to submit to a hair cut or to having his hair dyed, or to have his stomach pumped or a fluoroscopic examination of the contents of his intestines? The literature on this aspect of self- incrimination is voluminous. [Fn ...] The short and reasonably accurate answer to the question posed is that almost all such physical acts can be required. [Fn ...] Influenced by the historical development of the doctrine, its purpose, and the need to balance the conflicting interests of the individual and society, the courts have generally restricted the protection of the Fifth Amendment to situations where the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Code of Civil Procedure, it is trite, can be exercised also on an application filed by the party. In certain cases medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so. In matrimonial disputes, the court also has a conciliatory role to play - even for the said purpose it may require expert advice. Under Section 75(e) of the Code of Civil Procedure and Order 26, Rule 10-A the civil court has the requisite power to issue a direction to hold a scientific, technical or expert investigation." 144. The decision had also cited some foreign precedents dealing with the authority of investigators and courts to require the collection of DNA samples for the purpose of comparison. In that case the discussion centered on the `right to privacy'. So far, the authority of investigators and courts to compel the production of DNA samples has been approved by the Orissa High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is within the powers of a court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail. Furthermore, Section 53 contemplates the use of `force as is reasonably necessary' for conducting a medical examination. This means that once a court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same. 147. The contentious provision is the Explanation to Sections 53, 53-A and 54 of the CrPC (amended in 2005) which has been reproduced above. It has been contended that the phrase `modern and scientific techniques including DNA profiling and such other tests' should be liberally construed to include the impugned techniques. It was argued that even though the narcoanalysis technique, polygraph examination and the BEAP test have not been expressly enumerated, they could be read in by examining the legislative intent. Emphasis was placed on the phrase `and such other tests' to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that involve testimonial acts, such as psychiatric examination among others. This demonstrates that the amendment to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts. 150. However, the submissions touching on the legislative intent require some reflection. While it is most likely that the Parliament was well aware of the impugned techniques at the time of the 2005 amendment to the CrPC and deliberately chose not to enumerate them, we cannot arrive at a conclusive finding on this issue. While it is open to courts to examine the legislative history of a statutory provision, it is not proper for us to try and conclusively ascertain the legislative intent. Such an inquiry is impractical since we do not have access to all the materials which would have been considered by the Parliament. In such a scenario, we must address the respondent's arguments about the interpretation of statutes with regard to scientific advancements. To address this aspect, we can refer to some extracts from a leading commentary on the interpretation of statutes [See: Justice G.P. Singh, Principles of Statutory Interpretation, 10th edn. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, `What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?' attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself." (internal citations omitted) 151. The learned author has further taken note of several decisions where general words appearing in statutory provisions have been liberally interpreted to include newer scientific inventions and technologies. [Id. at pp. 244-246] The relevant portion of the commentary quotes Subbarao, J. in Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159, at p. 163: "It is perhaps difficult to attribute to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... silence in the law. Furthermore, in circumstances where an individual consents to undergo these tests, there is no dilution of Article 20(3). In the past, the meaning and scope of the term `investigation' has been held to include measures that had not been enumerated in statutory provisions. For example, prior to the enactment of an express provision for medical examination in the CrPC, it was observed in Mahipal Maderna v. State of Maharashtra, 1971 Cri L J 1405 (Bom), that an order requiring the production of a hair sample comes within the ordinary understanding of `investigation' (at pp. 1409-1410, Para. 17). We must also take note of the decision in Jamshed v. State of Uttar Pradesh, 1976 Cri L J 1680 (All), wherein it was held that a blood sample can be compulsorily extracted during a `medical examination' conducted under Section 53 of the CrPC. At that time, the collection of blood samples was not expressly contemplated in the said provision. Nevertheless, the Court had ruled that the phrase `examination of a person' should be read liberally so as to include an examination of what is externally visible on a body as well as the examination of an organ inside t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of investigation in criminal cases has long been recognised as an exception to the physician-patient privilege. In the Indian context, the statutory provisions for directing a medical examination are an example of the same. Fields such as forensic toxicology have become important in criminal- justice systems all over the world and doctors are frequently called on to examine bodily substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses of medical expertise is the fact that testimonial acts such as the results of a psychiatric examination cannot be used as evidence without the subject's informed consent. Results of impugned tests should be treated as `personal testimony' 157. We now return to the operative question of whether the results obtained through polygraph examination and the BEAP test should be treated as testimonial responses. Ordinarily evidence is classified into three broad categories, namely oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2), CrPC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements. For example in M.P. Sharma's case (supra.), it was noted that .evidence can be furnished through the lips or by production of a thing or of a document or in other modes" [Id. at p. 1087]. Furthermore, common sense dictates that certain communicative gestures such as pointing or nodding can also convey personal knowledge about a relevant fact, without offering a verbal response. It is quite foreseeable that such a communicative gesture may by itself expose a person to `criminal charges or penalties' or furnish a link in the chain of evidence needed for prosecution. 159. We must also highlight that there is nothing to show that the learned judges in Kathi Kalu Oghad (supra.) had contemplated the impugned techniques while discussing the scope of the phrase `to be a witness' for the purpose of Article 20(3). At that time, the transmission of knowledge through means other than speech or writing was not something that could have been easily conceived of. Techniques such as polygraph examination were fairly obscure and were the subject of experimentation in some Western nations while the BEAP technique was developed several years later. Just as the interpretation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirement of a `positive volitional act' becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition. 162. Some academics have also argued that the results obtained from tests such as polygraph examination are `testimonial' acts that should come within the prohibition of the right against self-incrimination. For instance, Michael S. Pardo (2008) has observed [Cited from: Michael S. Pardo, `Self- Incrimination and the Epistemology of Testimony', 30 Cardozo Law Review 1023-1046 (December 2008) at p. 1046]: "The results of polygraphs and other lie-detection tests, whether they call for a voluntary response or not, are testimonial because the tests are just inductive evidence of the defendant's epistemic state. They are evidence that purports to tell us either: (1) that we can or cannot rely on the assertions made by the defendant and for which he has represented himself to be an authority, or (2) what propositions the defendant would assume authority for and would invite reliance upon, were he to testify truthfully." 163. Ronald J. Allen and M. Kristin Mace (2004) have offered a theory that the right against se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as `personal testimony', since they are a means for `imparting personal knowledge about relevant facts'. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of `testimonial compulsion', thereby attracting the protective shield 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? 166. The preceding discussion does not conclusively address the contentions before us. Article 20(3) protects a person who is `formally accused' of having committed an offence or even a suspect or a witness who is questioned during an investigation in a criminal case. However, Article 20(3) is not applicable when a person gives his/her informed consent to undergo any of the impugned tests. It has also been described earlier that the `right against self-incriminatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ensure that an unwilling person is confined to the premises where the tests are to be conducted. Furthermore, the drug-induced revelations or the substantive inferences drawn from the measurement of the subject's physiological responses can be described as an intrusion into the subject's mental privacy. It is also quite conceivable that a person could make an incriminating statement on being threatened with the prospective administration of any of these techniques. Conversely, a person who has been forcibly subjected to these techniques could be confronted with the results in a subsequent interrogation, thereby eliciting incriminating statements. 170. We must also account for circumstances where a person who undergoes the said tests is subsequently exposed to harmful consequences, though not of a penal nature. We have already expressed our concern with situations where the contents of the test results could prompt investigators to engage in custodial abuse, surveillance or undue harassment. We have also been apprised of some instances where the investigation agencies have leaked the video-recordings of narcoanalysis interviews to media organisations. This is an especial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... science. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents - this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society." 174. Coming to the cases cited before us, in State of Maharashtra v. Sheshappa Dudhappa Tambade, AIR 1964 Bom 253, the Bombay High Court had upheld the constitutionality of Section 129-A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore conclude that a blood test taken by a skilled technician is not such `conduct that shocks the conscience' [Rochin v. California, 342 US 165, 172 (1952)], nor such a method of obtaining evidence that it offends a `sense of justice' [Brown v. Mississippi, 297 US 278, 285 (1936)]." 175. In Jamshed v. State of Uttar Pradesh, 1976 Cri L J 1680 (All), the following observations were made in respect of a compulsory extraction of blood samples during a medical examination (in Para 12): "We are therefore of the view that there is nothing repulsive or shocking to the conscience in taking the blood of the appellant in the instant case in order to establish his guilt. So far as the question of causing hurt is concerned, even causing of some pain may technically amount to hurt as defined by Section 319 of the Indian Penal Code. But pain might be caused even if the accused is subjected to a forcible medical examination. For example, in cases of rape it may be necessary to examine the private parts of the culprit. If a culprit is suspected to have swallowed some stolen article, an emetic may be used and X-ray examination may also be necessary. For such purposes the law permits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or degrading treatment and the right to fair trial. Applicability of the `right to privacy' 177. In Sharda v. Dharampal, (supra.) this Court had upheld the power of a civil court to order the medical examination of a party to a divorce proceeding. In that case, the medical examination was considered necessary for ascertaining the mental condition of one of the parties and it was held that a civil court could direct the same in the exercise of its inherent powers, despite the absence of an enabling provision. In arriving at this decision it was also considered whether subjecting a person to a medical examination would violate Article 21. We must highlight the fact that a medical test for ascertaining the mental condition of a person is most likely to be in the nature of a psychiatric evaluation which usually includes testimonial responses. Accordingly, a significant part of that judgment dealt with the `right to privacy'. It would be appropriate to structure the present discussion around extracts from that opinion. 178. In M.P. Sharma (supra.), it had been noted that the Indian Constitution did not explicitly include a `right to privacy' in a manner akin to the Fourth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95, at p. 1306] 180. In Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148, the Supreme Court approved of some police-regulations that provided for surveillance activities, but this time the decision pointed out a clear statutory basis for these regulations. However, it was also ruled that the `right to privacy' was not an absolute right. It was held, at Para. 28: "The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute." Assuming that the fundamental right explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest." (at p. 157, Para. 31) 181. Following the judicial expansion of the idea of `personal liberty', the status of the `right to privacy' as a compone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. held, at Para. 26-28: "When a patient was found to be HIV (+), its disclosure by the Doctor could not be violative of either the rule of confidentiality or the patient's right of privacy as the lady with whom the patient was likely to be married was saved in time by such disclosure, or else, she too would have been infected with a dreadful disease if marriage had taken place and been consummated." 184. However, a three judge bench partly overruled this decision in a review petition. In X v. Hospital Z, (2003) 1 SCC 500, it was held that if an HIV-positive person contracted marriage with a willing partner, then the same would not constitute the offences defined by Sections 269 and 270 of the Indian Penal Code. [Section 269 of the IPC defines the offence of a `Negligent act likely to spread infection of disease dangerous to life' and Section 270 contemplates a `Malignant act likely to spread infection of disease dangerous to life'.] A similar question was addressed by the Andhra Pradesh High Court in M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd., AIR 2001 AP 502, at pp. 513- 514: "There is an apparent conflict between the right to pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troversy arose with respect to the `retention' of samples taken from individuals who had been suspected of having committing offences in the past but had not been convicted for them. The statutory basis for the retention of physical samples taken from suspects was Section 64(1A) of the Police and Criminal Evidence Act, 1984. This provision also laid down that these samples could only be used for purposes related to the `prevention or detection of crime, the investigation of an offence or the conduct of a prosecution'. This section had been amended to alter the older position which provided that physical samples taken from suspects were meant to be destroyed once the suspect was cleared of the charges or acquitted. As per the older position, it was only the physical samples taken from convicted persons which could be retained by the police authorities. It was contended that the amended provision was incompatible with Articles 8 and 14 of the EctHR and hence the relief sought was that the fingerprints and DNA samples of the concerned parties should be destroyed. 187. In response to these contentions, the majority (Lord Woolf, C.J.) held that although the retention of such ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is accepted that fingerprints and samples may be taken. Where they have not been taken before any question of the retention arises, they have to be taken so there would be the additional interference with their rights which the taking involves. As no harmful consequences will flow from the retention unless the fingerprints or sample match those of someone alleged to be responsible for an offence, the different treatment is fully justified." 188. In the present case, written submissions made on behalf of the respondents have tried to liken the compulsory administration of the impugned techniques with the DNA profiling technique. In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53-A and 54 of the CrPC. It must also be clarified that a `DNA profile' is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 20(3) is not applicable to a proceeding of a civil nature. 191. Moreover, a distinction must be made between the character of restraints placed on the right to privacy. While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the `right to privacy' we must highlight the distinction between privacy in a physical sense and the privacy of one's mental processes. 192. So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact'. The theory of interrelationship of rights mandates that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;. Even though the Indian Constitution does not explicitly enumerate a protection against `cruel, inhuman or degrading punishment or treatment' in a manner akin to the Eighth Amendment of the U.S. Constitution, this Court has discussed this aspect in several cases. For example, in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, V.R. Krishna Iyer, J. observed at pp. 518-519: "True, our Constitution has no `due process' clause or the VIII Amendment; but, in this branch of law, after Cooper [(1970) 1 SCC 248] and Maneka Gandhi, [(1978) 1 SCC 248] the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Article 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound for denying the protections that are available to a person in custody. 196. The appellants have also drawn our attention to some international conventions and declarations. For instance in the Universal Declaration of Human Rights [GA Res. 217 A (III) of December 10 1948], Article 5 states that: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Article 7 of the International Covenant on Civil and Political Rights (ICCPR) [GA Res. 2200A (XXI), entered into force March 23, 1976] also touches on the same aspect. It reads as follows: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation." Special emphasis was placed on the definitions of `torture' as well as `cruel, inhuman or degrading treatment or punishment' in Articles 1 and 16 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. Article 1 1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g treatment or punishment' should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time. Principle 21 1. It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person. 2. No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment. 198. It was shown that protections against torture and `cruel, inhuman or degrading treatment or punishment' are accorded to persons who are arrested or detained in the course of armed conflicts between nations. In the Geneva Convention relative to the Treatment of Prisoners of War (entry into force 21 October 1950) the relevant extract reads: Article 17 No physical or mental torture, nor any other for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ordinarily does not result in physical injuries. [See: Linda M. Keller, `Is Truth Serum Torture?' 20 American University International Law Review 521-612 (2005)] However, it is quite conceivable that the administration of any of these techniques could involve the infliction of `mental pain or suffering' and the contents of their results could expose the subject to physical abuse. When a person undergoes a narcoanalysis test, he/she is in a half- conscious state and subsequently does not remember the revelations made in a drug-induced state. In the case of polygraph examination and the BEAP test, the test subject remains fully conscious during the tests but does not immediately know the nature and implications of the results derived from the same. However, when he/she later learns about the contents of the revelations, they may prove to be incriminatory or be in the nature of testimony that can be used to prosecute other individuals. We have also highlighted the likelihood of a person making incriminatory statements when he/she is subsequently confronted with the test results. The realisation of such consequences can indeed cause `mental pain or suffering' for the pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as this invasive test is not authorised by law, it must perforce be regarded as illegal and unconstitutional unless it is voluntarily undertaken under non-coercive circumstances. If the police action of conducting a lie detector test is not authorised by law and impermissible, the only basis on which it could be justified is, if it is volunteered. There is a distinction between: (a) volunteering, and (b) being asked to volunteer. This distinction is of some significance in the light of the statutory and constitutional protections available to any person. There is a vast difference between a person saying, `I wish to take a lie detector test because I wish to clear my name', and when a person is told by the police, `If you want to clear your name, take a lie detector test'. A still worse situation would be where the police say, `Take a lie detector test, and we will let you go'. In the first example, the person voluntarily wants to take the test. It would still have to be examined whether such volunteering was under coercive circumstances or not. In the second and third examples, the police implicitly (in the second example) and explicitly (in the third example) link up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of place and the passing of time." Furthermore, Principle 21(2) lays down that: "No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment." 205. It is undeniable that during a narcoanalysis interview, the test subject does lose `awareness of place and passing of time'. It is also quite evident that all the three impugned techniques can be described as methods of interrogation which impair the test subject's `capacity of decision or judgment'. Going by the language of these principles, we hold that the compulsory administration of the impugned techniques constitutes `cruel, inhuman or degrading treatment' in the context of Article 21. It must be remembered that the law disapproves of involuntary testimony, irrespective of the nature and degree of coercion, threats, fraud or inducement used to elicit the same. The popular perceptions of terms such as `torture' and `cruel, inhuman or degrading treatment' are associated with gory images of blood-letting and broken bones. However, we must recognise that a forcible intrusion into a person's mental pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult a lawyer. Access to legal advice is an essential safeguard so that an individual can be adequately apprised of his constitutional and statutory rights. This is also a measure which checks custodial abuses. However, the involuntary administration of any of the impugned tests can lead to a situation where such legal advice becomes ineffective. For instance even if a person receives the best of legal advice before undergoing any of these tests, it cannot prevent the extraction of information which may prove to be inculpatory by itself or lead to the subsequent discovery of incriminating materials. Since the subject has no conscious control over the drug-induced revelations or substantive inferences, the objective of providing access to legal advice are frustrated. 209. Since the subject is not immediately aware of the contents of the drug-induced revelations or substantive inferences, it also conceivable that the investigators may chose not to communicate them to the subject even after completing the tests. In fact statements may be recorded or charges framed without the knowledge of the test subject. At the stage of trial, the prosecution is obliged to supply copies of all incri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple for evaluating the validity of any scientific technique that it should have been subjected to rigorous independent studies and peer review. This is so because the persons who are involved in the invention and development of certain techniques are perceived to have an interest in their promotion. Hence, it is quite likely that such persons may give unduly favourable responses about the reliability of the techniques in question. 212. Even though India does not have a jury system, the use of the impugned techniques could impede the fact-finding role of a trial judge. This is a special concern in our legal system, since the same judge presides over the evidentiary phase of the trial as well as the guilt phase. The consideration of the test results or their fruits for the purpose of deciding on their admissibility could have a prejudicial effect on the judge's mind even if the same are not eventually admitted as evidence. Furthermore, we echo the concerns expressed by the Supreme Court of Canada in R v. Beland, [1987] 36 C.C.C. (3d) 481, where it was observed that reliance on scientific techniques could cloud human judgment on account of an `aura of infallibility'. While j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intrusion into personal liberty, their investigative use is justifiable since there is a compelling public interest in eliciting information that could help in preventing criminal activities in the future. Such utilitarian considerations hold some significance in light of the need to combat terrorist activities, insurgencies and organised crime. It has been argued that such exigencies justify some intrusions into civil liberties. The textual basis for these restraints could be grounds such as preserving the `sovereignty and integrity of India', `the security of the state' and `public order' among others. It was suggested that if investigators are allowed to rely on these tests, the results could help in uncovering plots, apprehending suspects and preventing armed attacks as well as the commission of offences. Reference was also made to the frequently discussed `Ticking Bomb' scenario. This hypothetical situation examines the choices available to investigators when they have reason to believe that the person whom they are interrogating is aware of the location of a bomb. The dilemma is whether it is justifiable to use torture or other improper means for eliciting in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the results is a complex process that involves accounting for distortions such as `countermeasures' used by the subject and weather conditions among others. In a BEAP test, there is always the possibility of the subject having had prior exposure to the `probes' that are used as stimuli. All of this is a gradually unfolding process and it is not appropriate to argue that the test results will always prove to be crucial in times of exigency. It is evident that both the tasks of preparing for these tests and interpreting their results need considerable time and expertise. 218. Secondly, if we were to permit the forcible administration of these techniques, it 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. What this will result in is that investigators will increasingly seek reliance on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king the suspect, sleep-deprivation and enforcing uncomfortable positions for prolonged periods) during interrogation of terrorism suspects was illegal. Among other questions raised in that case, it was also held that the `necessity' defence could be used only as a post factum justification for past conduct and that it could not be the basis of a blanket pre-emptive permission for coercive interrogation practices in the future. Ruling against such methods, Aharon Barak, J. held at p. 26: "This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the `Rule of Law' and recognition of an individual's liberty constitutes an important component in its understanding of security." CONCLUSION 221. In our considered opinion, the compulsory administration of the impugned techniques violates the `right against self- incrimination'. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of 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. The National Human Rights Commission had published `Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis technique' and the `Brain Electrical Activation Profile' test. The text of these guidelines has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
