TMI Blog2010 (5) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 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? The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty' under Article 21. Hence, our understanding of the `right to privacy' should account for its intersection with Article 20(3). Furthermore, the `rule against involuntary confessions' as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual's decision to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exigency. It is evident that both the tasks of preparing for these tests and interpreting their results need considerable time and expertise. 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 as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the CrPC it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge that is relevant to the facts in issue'. The results obtained from each of the impugned tests bear a `testimonial' character and they cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reproduced. The present batch of appeals is disposed of accordingly. - K.G. Balakrishnan, R.V. Raveendran And J.M. Panchal. JUDGMENT K.G. Balakrishnan, C.J.I. 1. The legal questions in this batch of criminal appeals relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preservation of individual liberties. Ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese questions among others, it is necessary to inquire into the historical origins and rationale behind the `right against self-incrimination'. The principal questions are whether this right extends to the investigation stage and whether the test results are of a `testimonial' character, thereby attracting the protection of Article 20(3). Furthermore, we must examine whether relying on the test results or materials discovered with the help of the same creates a reasonable likelihood of incrimination for the test subject. 4. We must also deal with arguments invoking the guarantee of `substantive due process' which is part and parcel of the idea of `personal liberty' protected by Article 21 of the Constitution. The first question in this regard is whether the provisions in the Code of Criminal Procedure, 1973 that provide for `medical examination' during the course of investigation can be read expansively to include the impugned techniques, even though the latter are not explicitly enumerated. To answer this question, it will be necessary to discuss the principles governing the interpretation of statutes in light of scientific advancements. Questions have also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lsory administration of these techniques were presented by Mr. Goolam E. Vahanvati, Solicitor General of India [now Attorney General for India] and Mr. Anoop G. Choudhari, Sr. Adv. who appeared on behalf of the Union of India. These were further supported by Mr. T.R. Andhyarujina, Sr. Adv. who appeared on behalf of the Central Bureau of Investigation (CBI) and Mr. Sanjay Hegde, Adv. who represented the State of Karnataka. Mr. Dushyant Dave, Sr. Adv., rendered assistance as amicus curiae in this matter. 7. At this stage, it will be useful to frame the questions of law and outline the relevant sub-questions in the following manner: I. Whether the involuntary administration of the impugned techniques violates the `right against self-incrimination' enumerated in Article 20(3) of the Constitution? I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject? I-B. Whether the results derived from the impugned techniques amount to `testimonial compulsion' thereby attracting the bar of Article 20(3)? II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on `personal l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... techniques: i. The relevant-irrelevant (R-I) technique ii. The control question (CQ) technique iii. Directed Lie-Control (DLC) technique Each of these techniques includes a pre-test interview during which the subject is acquainted with the test procedure and the examiner gathers the information which is needed to finalize the questions that are to be asked. An important objective of this exercise is to mitigate the possibility of a feeling of surprise on part of the subject which could be triggered by unexpected questions. This is significant because an expression of surprise could be mistaken for physiological responses that are similar to those associated with deception. [Refer: David Gallai, `Polygraph evidence in federal courts: Should it be admissible?' 36 American Criminal Law Review 87-116 (Winter 1999) at p. 91]. Needless to say, the polygraph examiner should be familiar with the details of the ongoing investigation. To meet this end the investigators are required to share copies of documents such as the First Information Report (FIR), Medico-Legal Reports (MLR) and Post-Mortem Reports (PMR) depending on the nature of the facts being investigated. 12. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to prohibit such use, the text of the Laboratory Procedure Manual for Polygraph Examination [supra.] indicates that this is an acceptable use. In this regard, Para 3.4 (v) of the said Manual reads as follows: (v) In cases of alleged sex offences such as intercourse with a female child, forcible rape, indecent liberties or perversion, it is important that the victim, as well as the accused, be made available for interview and polygraph examination. It is essential that the polygraph examiner get a first hand detailed statement from the victim, and the interview of the victim precede that of the suspect or witnesses. [The following article includes a table which lists out the statutorily permissible uses of polygraph examination in the different state jurisdictions of the United States of America: Henry T. Greely and Judy Illes, `Neuroscience based lie- detection: The urgent need for regulation', 33 American Journal of Law and Medicine, 377-421 (2007)] 15. The propriety of compelling the victims of sexual offences to undergo a polygraph examination certainly merits consideration in the present case. It must also be noted that in some jurisdictions polygraph tests h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... false negative' occurs when a set of deceptive responses is reported as truthful. On account of such inherent complexities, the qualifications and competence of the polygraph examiner are of the utmost importance. The examiner needs to be thorough in preparing the questionnaire and must also have the expertise to account for extraneous conditions that could lead to erroneous inferences. 18. However, the biggest concern about polygraph tests is that an examiner may not be able to recognise deliberate attempts on part of the subject to manipulate the test results. Such `countermeasures' are techniques which are deliberately used by the subject to create certain physiological responses in order to deceive the examiner. The intention is that by deliberately enhancing one's reaction to the control questions, the examiner will incorrectly score the test in favour of truthfulness rather than deception. The most commonly used `countermeasures' are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by lying cannot be readily distinguished. 19. Since polygraph tests have come to be widely relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding is reproduced below, [Cited from: A Review of the current scientific status and fields of application of polygraph deception detection - Final Report (6 October, 2004) from The British Psychological Society (BPS) Working Party at p. 10]: A polygraph is sometimes called a lie detector, but this term is misleading. A polygraph does not detect lies, but only arousal which is assumed to accompany telling a lie. Polygraph examiners have no other option than to measure deception in such an indirect way, as a pattern of physiological activity directly related to lying does not exist (Saxe, 1991). Three of the four most popular lie detection procedures using the polygraph (Relevant/Irrelevant Test, Control Question Test and Directed Lie Test, ...) are built upon the premise that, while answering so-called `relevant' questions, liars will be more aroused than while answering so-called `control' questions, due to a fear of detection (fear of getting caught lying). This premise is somewhat naive as truth tellers may also be more aroused when answering the relevant questions, particularly: (i) when these relevant questions are emotion evoking questions (e.g. when an inn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral decades. It was changed much later by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 US 579 (1993). In that case the petitioners had instituted proceedings against a pharmaceutical company which had marketed `Bendectin', a prescription drug. They had alleged that the ingestion of this drug by expecting mothers had caused birth defects in the children born to them. To contest these allegations, the pharmaceutical company had submitted an affidavit authored by an epidemiologist. The petitioners had also submitted expert opinion testimony in support of their contentions. The District Court had ruled in favour of the company by ruling that their scientific evidence met the standard of `general acceptance in the particular field' whereas the expert opinion testimony produced on behalf of the petitioners did not meet the said standard. The Court of Appeals for the Ninth Circuit upheld the judgment and the case reached the U.S. Supreme Court which vacated the appellate court's judgment and remanded the case back to the trial court. It was unanimously held that the `general acceptance' standard articulated in Frye (supra.) had since been disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdictions in the U.S.A. had disapproved of the use of polygraph tests in criminal cases. Some State jurisdictions had absolutely prohibited the admission of polygraph test results, while a few had allowed consideration of the same if certain conditions were met. These conditions included a prior stipulation between the parties to undergo these tests with procedural safeguards such as the involvement of experienced examiners, presence of counsel and proper recording to enable subsequent scrutiny. A dissonance had also emerged in the treatment of polygraph test results in the different Circuit jurisdictions, with some jurisdictions giving trial judges the discretion to enquire into the reliability of polygraph test results on a case-by-case basis. 26. For example, in United States v. Piccinonna, 885 F.2d 1529 (11th Circ. 1989), it was noted that in some instances polygraphy satisfied the standard of `general acceptance in the particular field' as required by Frye (supra.). It was held that polygraph testimony could be admissible under two situations, namely when the parties themselves agree on a stipulation to this effect or for the purpose of impeaching and corroborating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , there is good indication that polygraph technique and the requirements for professional polygraphists are becoming progressively more standardized. In addition, polygraph technique has been and continues to be subjected to extensive study and publication. Finally, polygraph is now so widely used by employers and government agencies alike. To iterate, we do not now hold that polygraph examinations are scientifically valid or that they will always assist the trier of fact, in this or any other individual case. We merely remove the obstacle of the per se rule against admissibility, which was based on antiquated concepts about the technical ability of the polygraph and legal precepts that have been expressly overruled by the Supreme Court. (internal citations omitted) 28. Despite these favourable observations, the polygraph results were excluded by the District Court on remand. However, we have come across at least one case decided after Daubert (supra.) where a trial court had admitted expert opinion testimony about polygraph results. In United States v. Galbreth, 908 F. Supp 877 (D.N.M. 1995), the District Court took note of New Mexico Rule of Evidence 11-707 which est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 228: With this holding, we are not expressing new enthusiasm for admission of unstipulated polygraph evidence. The inherent problematic nature of such evidence remains. As we noted in Brown, polygraph evidence has grave potential for interfering with the deliberative process. [Brown v. Darcy, 783 F.2d 1389 (9th Circ. 1986) at 1396-1397] However, these matters are for determination by the trial judge who must not only evaluate the evidence under Rule 702, but consider admission under Rule 403. Thus, we adopt the view of Judge Jameson's dissent in Brown that these are matters which must be left to the sound discretion of the trial court, consistent with Daubert standards. 30. The decisions cited above had led to some uncertainty about the admissibility of polygraph test results. However, this uncertainty was laid to rest by an authoritative ruling of the U.S. Supreme Court in United States v. Scheffer, 523 US 303 (1998). In that case, an eight judge majority decided that Military Rule of Evidence 707 (which made polygraph results inadmissible in court-martial proceedings) did not violate an accused person's Sixth Amendment right to present a defence. The relevant pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence. 34. Since a trial by jury is an essential feature of the criminal justice system in the U.S.A., concerns were expressed about preserving the jury's core function of determining the credibility of testimony. It was observed, Id. at p. 314: Unlike other expert witnesses who testify about factual matters outside the jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth. Jurisdictions, in promulgating rules of evidence, may legitima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence. The trial judge denied this motion and the respondents were convicted. However, the appellate court allowed their appeal from conviction and granted an order to re-open the trial and directed that the polygraph results be considered. On further appeal, the Supreme Court of Canada held that the results of a polygraph examination are not admissible as evidence. The majority opinion explained that the admission of polygraph test results would offend some well established rules of evidence. It examined the `rule against oath-helping' which prohibits a party from presenting evidence solely for the purpose of bolstering the credibility of a witness. Consideration was also given to the `rule against admission of past or out-of-court statements by a witness' as well as the restrictions on producing `character evidence'. The discussion also concluded that polygraph evidence is inadmissible as `expert evidence'. 38. With regard to the `rule against admission of past or out- of-court statements by a witness', McIntyre, J. observed (in Para. 11): In my view, the rule against admission of consistent out-of-court statements is soundly based and particularly appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph evidence? Where such evidence is sought to be introduced it is the operator who would be called as the witness and it is clear, of course, that the purpose of his evidence would be to bolster the credibility of the accused and, in effect, to show him to be of good character by inviting the inference that he did not lie during the test. In other words, it is evidence not of general reputation but of a specific incident and its admission would be precluded under the rule. It would follow, then, that the introduction of evidence of the polygraph tests would violate the character evidence rule. 40. Mcintyre, J. offered the following conclusions (at Paras. 18, 19 and 20): 18. In conclusion, it is my opinion, based upon a consideration of rules of evidence long established and applied in our courts, that the polygraph has no place in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses. It is frequently argued that the polygraph represents an application of modern scientific knowledge and experience to the task of determining the veracity of human utterances. It is said that the courts should welcome this device and not clin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science. Narcoanalysis technique 41. This test involves the intravenous administration of a drug that causes the subject to enter into a hypnotic trance and become less inhibited. The drug-induced hypnotic stage is useful for investigators since it makes the subject more likely to divulge information. The drug used for this test is sodium pentothal, higher quantities of which are routinely used for inducing general anaesthesia in surgical procedures. This drug is also used in the field of psychiatry since the revelations can enable the diagnosis of mental disorders. However, we have to decide on the permissibility of resorting to this technique during a criminal investigation, despite its' established uses in the medical field. The use of `truth-serums' and hypnosis is not a recent development. Earlier versions of the narcoanalysis technique utilised substances such as scopolamine and sodium amytal. The following extracts from an article trace the evolution of this technique, [Cited from: C.W. Muehlberger, `Interrogation under Drug-influence: The so-called Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oform anaesthesia and gave answers which subsequently proved to be true. Altogether, Dr. House reported about half-a-dozen cases, several of which were instrumental in securing the release of convicts from State prisons, he also observed that, after returning to their normal state, these subjects had little or no recollection of what had transpired during the period of interrogation. They could not remember what questions had been asked, nor by whom; neither could they recall any answers which they had made. 42. The use of the `Scopolamine' technique led to the coining of the expression `truth serum'. With the passage of time, injections of sodium amytal came to be used for inducing subjects to talk freely, primarily in the field of psychiatry. The author cited above has further observed, Id. at p. 522: During World War II, this general technique of delving into a subject's inner consciousness through the instrumentality of narcotic drugs was widely used in the treatment of war neuroses (sometimes called `Battle shock' or `shell shock'). Fighting men who had been through terrifically disturbing experiences often times developed symptoms of amnesia, ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c.) in a positive manner. 7 It helps in rapid exploration and identification of underlying conflicts in the subject's mind and unresolved feelings about past events. 7 It induces the subject to divulge information which would usually not be revealed in conscious awareness and it is difficult for the person to lie at this stage 7 The reversal from this stage occurs immediately when the administration of the drug is discontinued. [Refer: Laboratory Procedure Manual - Forensic Narco-Analysis (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi - 2005); Also see John M. Macdonald, `Truth Serum', 46(2) The Journal of Criminal Law, Criminology and Police Science 259-263 (Jul.-Aug. 1955)] 45. The personnel involved in conducting a `narcoanalysis' interview include a forensic psychologist, an anaesthesiologist, a psychiatrist, a general physician or other medical staff and a language interpreter if needed. Additionally a videographer is required to create video-recordings of the test for subsequent scrutiny. In India, this technique has been administered either inside forensic science laboratories or in the operation theatres of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects' personal lives. It takes great skill on part of the interrogators to extract and identify information which could eventually prove to be useful. While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. This is especially worrying, since investigators who are under pressure to deliver results could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the `hypnotic stage'. Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the `narcoanalysis' technique. 48. In an article published in 1951, C.W. Muehlberger (supra.) had described a French case which attracted controversy in 1948. Raymond Cens, who had been accused of being a Nazi collaborator, appeared to have suffered an apoplectic stroke which also caused memory loss. The French Court trying the case had authorised a board of psychiatrists to conduct an examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50. In State v. Lindemuth, 56 N.M. 237 (1952) the testimony of a psychiatrist was not admitted when he wanted to show that the answers given by a defendant while under the influence of sodium pentothal supported the defendant's plea of innocence in a murder case. The trial court's refusal to admit such testimony was endorsed by the appellate court, and it was noted, Id. at p. 243: Until the use of the drug as a means of procuring the truth from people under its influence is accorded general scientific recognition, we are unwilling to enlarge the already immense field where medical experts, apparently equally qualified, express such diametrically opposed views on the same facts and conditions, to the despair of the court reporter and the bewilderment of the fact- finder. 51. However, Andre Moenssens (1961) also took note of a case which appeared to endorse an opposing view. In People v. Jones, 42 Cal. 2d 219 (1954), the trial court overruled the prosecution's objection to the introduction of a psychiatrist's testimony on behalf of the defendant. The psychiatrist had conducted several tests on the defendant which included a sodium pentothal induced interview. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moenssens (1961) at pp. 455- 456] 53. In Lawrence M. Dugan v. Commonwealth of Kentucky, 333 S.W.2d. 755 (1960), the defendant had been given a truth serum test by a psychiatrist employed by him. The trial court refused to admit the psychiatrist's testimony which supported the truthfulness of the defendant's statement. The defendant had pleaded innocence by saying that a shooting which had resulted in the death of another person had been an accident. The trial court's decision was affirmed on appeal and is was reasoned that no court of last resort has recognised the admissibility of the results of truth serum tests, the principal ground being that such tests have not attained sufficient recognition of dependability and reliability. 54. The U.S. Supreme Court has also disapproved of the forensic uses of truth-inducing drugs in Townsend v. Sain, 372 US 293 (1963). In that case a heroin addict was arrested on the suspicion of having committed robbery and murder. While in custody he began to show severe withdrawal symptoms, following which the police officials obtained the services of a physician. In order to treat these withdrawal symptoms, the physician injected a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if his confession was not `the product of a rational intellect and a free will', his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a `truth serum'. It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine's properties as a `truth serum', if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible. (internal citations omitted) 56. In United States v. Swanson, 572 F.2d 523 (5th Circ. 1978), two individuals had been convicted for conspiracy and extortion through the acts of sending threatening letters. At the trial stage, one of the defendants testified that he suffered from amnesia and therefore he could not recall his a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... George before the trial judge, since the same was based on the results of the sodium amytal interview and was hence unreliable. The Court drew a distinction between the statements made during the narcoanalysis interview and the subsequent statements made before the trial court. It was observed that it was open to the defendants to show that George's testimony during trial had been bolstered by the previous revelations made during the narcoanalysis interview. However, the connection between the drug-induced revelations and the testimony given before the trial court could not be presumed. It was further noted, Id. at p. 1525: The only Ninth Circuit case addressing narcoanalysis excluded a recording of and psychiatric testimony supporting an interview conducted under the influence of sodium pentothal, a precursor of sodium amytal. [Lindsey v. United States, 237 F.2d 893 (9th Cir. 1956).] The case at bar is distinguishable because no testimony concerning the narcoanalysis was offered at trial. Only George's current recollection of events was presented. In an analogous situation, this circuit has held that the current recollections of witnesses whose memories have been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis that George was responsible, was the drug's tendency to induce truthful statements. Montgomery admitted that narcoanalysis does not reliably induce truthful statements. The judge's exclusion of the evidence concerning narcoanalysis was not an abuse of discretion. The prejudicial effect of an aura of scientific respectability outweighed the slight probative value of the evidence. 60. In State of New Jersey v. Daryll Pitts, 56 A.2d 1320 (N.J. 1989), the trial court had refused to admit a part of a psychiatrist's testimony which was based on the results of the defendant's sodium-amytal induced interview. The defendant had been charged with murder and had sought reliance on the testimony to show his unstable state of mind at the time of the homicides. Reliance on the psychiatrist's testimony was requested during the sentencing phase of the trial in order to show a mitigating factor. On appeal, the Supreme Court of New Jersey upheld the trial court's decision to exclude that part of the testimony which was derived from the results of the sodium-amytal interview. Reference was made to the Frye standard while observing that in determining the admissibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a confessional statement. The trial judge had found all of these statements to be inadmissible, thereby leading to an acquittal. The Court of Appeal had reversed this decision, and hence an appeal was made before the Supreme Court. 62. Notably, the appellant had refused to undergo a narcoanalysis interview or a polygraph test. It was also evident that he had not consented to the hypnosis. The multiple opinions delivered in the case examined the criterion for deciding the voluntariness of a statement. Reference was made to the well-known statement of Lord Summer in Ibrahim v. R, [1914] A.C. 599 (P.C.), at p. 609: It has long been established as a positive rule of English criminal law that no statement made by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. 63. In Horvath v. R (supra.), the question was whether statements made under a hypnotic state could be equated with those obtained by `fear of prejudice' or `hope of advantage'. The Court ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul purposes. 118. I refrain from commenting on such practices, short of noting that even the consensual use of hypnosis and narcoanalysis for evidentiary purposes may present problems. Under normal police interrogation, a suspect has the opportunity to renew or deny his consent to answer each question, which is no longer the case once he is, although by consent, in a state of hypnosis or under the influence of a `truth serum'. (internal citation omitted) 66. Our attention has also been drawn to the decision reported as Rock v. Arkansas, 483 US 44 (1987), in which the U.S. Supreme Court ruled that hypnotically-refreshed testimony could be admitted as evidence. The constitutional basis for admitting such testimony was the Sixth Amendment which gives every person a right to present a defence in criminal cases. However, the crucial aspect was that the trial court had admitted the oral testimony given during the trial stage rather than the actual statements made during the hypnosis session conducted earlier during the investigation stage. It was found that such hypnotically-refreshed testimony was the only defence available to the defendant in the circumstances. In such ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs that it became possible to sort out specific wave components on an EEG and identify the correlation between the waves and specific stimuli. The P300 wave is one such component that was discovered by Dr. Samuel Sutton in 1965. It is a specific event-related brain potential (ERP) which is triggered when information relating to a specific event is recognised by the brain as being significant or surprising. 69. The P300 waves test is conducted by attaching electrodes to the scalp of the subject, which measure the emission of the said wave components. The test needs to be conducted in an insulated and air-conditioned room in order to prevent distortions arising out of weather conditions. Much like the narcoanalysis technique and polygraph examination, this test also requires effective collaboration between the investigators and the examiner, most importantly for designing the stimuli which are called `probes'. Ascertaining the subject's familiarity with the `probes' can help in detecting deception or to gather useful information. The test subject is exposed to auditory or visual stimuli (words, sounds, pictures, videos) that are relevant to the facts being investigated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with respect to all of the techniques mentioned above. Even though these are non- invasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as `Brain Fingerprinting' and `FMRI-based Lie-Detection' raise numerous concerns such as those of protecting mental privacy and the harms that may arise from inferences made about the subject's truthfulness or familiarity with the facts of a crime. [See generally: Michael S. Pardo, `Neuroscience evidence, legal culture and criminal procedure', 33 American Journal of Criminal Law 301-337 (Summer 2006); Sarah E. Stoller and Paul Root Wolpe, `Emerging neurotechnologies for lie detection and the fifth amendment', 33 American Journal of Law and Medicine 359-375 (2007)] 72. These neuroscientific techniques could also find application outside the criminal justice setting. For instance, Henry T. Greely (2005, Cited below) has argued that technologies that may enable a precise identification of the subject's mental responses to specific stimuli could potentially be used for market-research by business c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probes, there is no conclusive guidance about the actual nature of the subject's involvement in the crime being investigated. For instance a by- stander who witnessed a murder or robbery could potentially be implicated as an accused if the test reveals that the said person was familiar with the information related to the same. Furthermore, in cases of amnesia or `memory-hardening' on part of the subject, the tests could be blatantly misleading. Even if the inferences drawn from the `P300 wave test' are used for corroborating other evidence, they could have a material bearing on a finding of guilt or innocence despite being based on an uncertain premise. [For an overview of the limitations of these neuroscientific techniques, see: John G. New, `If you could read my mind - Implications of neurological evidence for twenty-first century criminal jurisprudence', 29 Journal of Legal Medicine 179-197 (April-June 2008)] 75. We have come across two precedents relatable to the use of `Brain Fingerprinting' tests in criminal cases. Since this technique is considered to be an advanced version of the P300 Waves test, it will be instructive to examine these precedents. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77. The second decision brought to our attention is Slaughter v. Oklahoma, 105 P. 3d 832 (2005). In that case, Jimmy Ray Slaughter had been convicted for two murders and sentenced to death. Subsequently, he filed an application for post- conviction relief before the Court of Criminal Appeals of Oklahoma which attempted to introduce in evidence an affidavit and evidentiary materials relating to a `Brain Fingerprinting' test. This test had been conducted by Dr. Lawrence Farwell whose opinion was that the petitioner did not have knowledge of the `salient features of the crime scene'. Slaughter also sought a review of the evidence gathered through DNA testing and challenged the bullet composition analysis pertaining to the crime scene. However, the appellate court denied the application for post-conviction relief as well as the motion for an evidentiary hearing. With regard to the affidavits based on the `Brain Fingerprinting' test, it was held, Id. at p. 834: 10. Dr. Farwell makes certain claims about the Brain Fingerprinting test that are not supported by anything other than his bare affidavit. He claims the technique has been extensively tested, has been presented an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d obtain statements from individuals by threatening them with the possibility of administering either of these tests. The person being interrogated could possibly make self-incriminating statements on account of apprehensions that these techniques will extract the truth. Such behaviour on part of investigators is more likely to occur when the person being interrogated is unaware of his/her legal rights or is intimidated for any other reason. It is a settled principle that a statement obtained through coercion, threat or inducement is involuntary and hence inadmissible as evidence during trial. However, it is not settled whether a statement made on account of the apprehension of being forcibly subjected to the impugned tests will be involuntary and hence inadmissible. This aspect merits consideration. It is also conceivable that an individual who has undergone either of these tests would be more likely to make self-incriminating statements when he/she is later confronted with the results. The question in that regard is whether the statements that are made subsequently should be admissible as evidence. The answers to these questions rest on the permissibility of subjecting individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides that `Everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law'. The guarantee of `presumption of innocence' bears a direct link to the `right against self- incrimination' since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt. 82. In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights, since this approach was recognised in Maneka Gandhi's case, (1978) 1 SCC 248. Hence, we must examine the `right against self-incrimination' in respect of its relationship with the multiple dimensions of `personal liberty' under Article 21, which include guarantees such as the `right to fair trial' and `substantive due process'. It must also be emphasized that Articles 20 and 21 have a non-derogable status within Part III of our Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a proclamation of emergen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person's silence during the trial stage. Historical origins of the `right against self-incrimination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an investigation into the loyalty of members whose opinions were offensive to the army leaders. The committee's inquisitional conduct and its requirement that witnesses take an oath to tell the truth provoked opponents to condemn what they regarded as a revival of Star Chamber tactics. John Lilburne was once again tried for treason before this committee, this time for his outspoken criticism of the leaders who had prevailed in the struggle between the supporters of the monarch and those of the Parliament in the English civil war. John Lilburne invoked the spirit of the Magna Carta as well as the 1628 Petition of Right to argue that even after common-law indictment and without oath, he did not have to answer questions against or concerning himself. He drew a connection between the right against self-incrimination and the guarantee of a fair trial by invoking the idea of `due process of law' which had been stated in the Magna Carta. 88. John H. Langbein (1994) has offered more historical insights into the emergence of the `right to silence'. [John H. Langbein, `The historical origins of the privilege against self- incrimination at common law', 92(5) Michigan Law Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively respond to suggestive and misleading questioning, which could come from the prosecutor or the judge. Furthermore, even an innocent person is at an inherent disadvantage in an environment where there may be unintentional irregularities in the testimony. Most importantly the burden of proving innocence by refuting the charges was placed on the defendant himself. In the present day, the inquisitorial conception of the defendant being the best source of evidence has long been displaced with the evolution of adversarial procedure in the common law tradition. Criminal defendants have been given protections such as the presumption of innocence, right to counsel, the right to be informed of charges, the right of compulsory process and the standard of proving guilt beyond reasonable doubt among others. It can hence be stated that it was only with the subsequent emergence of the `right to counsel' that the accused's `right to silence' became meaningful. With the consolidation of the role of defence lawyers in criminal trials, a clear segregation emerged between the testimonial function performed by the accused and the defensive function performed by the lawyer. This segr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. So deeply did the inequities of the ancient system impress themselves upon the minds of the American colonists that the State, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment. Underlying rationale of the right against self-incrimination 91. As mentioned earlier, `the right against self-incrimination' is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives - firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth. If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law `to sit comfortably in the shade rubbing red pepper into a poor devils' eyes rather than to go about in the sun hunting up evidence.' [Sir James Fitzjames Stephen, History of Criminal Law, p. 442] No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false - out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution makers were clearly well aware and it was to avoid them that Article 20(3) was put in the Constitution. 94. The rationale behind the Fifth Amendment in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is best which uses stratagems least, that policeman deserves respect who gives his fists rest and his wits restlessness. The police are part of us and must rise in people's esteem through firm and friendly, not foul and sneaky strategy. 96. In spite of the constitutionally entrenched status of the right against self-incrimination, there have been some criticisms of the policy underlying the same. John Wigmore (1960) argued against a broad view of the privilege which extended the same to the investigative stage. [Refer: John Wigmore, `The privilege against self-incrimination, its constitutional affectation, raison d'etre and miscellaneous implications', 51 Journal of Criminal Law, Criminology and Police Science 138 (1960)] He has asserted that the doctrinal origins of the `rule against involuntary confessions' in evidence law and those of the `right to self-incrimination' were entirely different and catered to different objectives. In the learned author's opinion, the `rule against involuntary confessions' evolved on account of the distrust of statements made in custody. The objective was to prevent these involuntary statements from being considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d about the scope of the privilege being restricted to testimonial acts while excluding physical evidence which can be extracted through compulsion. 98. In response to John Wigmore's thesis about the separate foundations of the `rule against involuntary confessions', we must recognise the infusion of constitutional values into all branches of law, including procedural areas such as the law of evidence. While the above-mentioned criticisms have been made in academic commentaries, we must defer to the judicial precedents that control the scope of Article 20(3). For instance, the interrelationship between the privilege against self- incrimination and the requirements of observing due process of law were emphasized by William Douglas, J. in Rochin v. California, 342 US 166 (1951), at p. 178: As an original matter it might be debatable whether the provision in the Fifth Amendment that no person `shall be compelled in any criminal case to be a witness against himself' serves the ends of justice. Not all civilized legal procedures recognize it. But the choice was made by the framers, a choice which sets a standard for legal trials in this country. The Framers made it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tish Chandra, [1954] SCR 1077, it was held by Jagannadhadas, J. at pp. 1087-1088: Broadly stated, the guarantee in Article 20(3) is against `testimonial compulsion'. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is `to be a witness' and not to `appear as a witness': It follows that the protection afforded to an accused in so far as it is related to the phrase `to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arm has already been done. The police will prove through other evidence what they have procured through forced confession. So it is that the foresight of the framers has pre-empted self- incrimination at the incipient stages by not expressly restricting it to the trial stage in court. True, compelled testimony previously obtained is excluded. But the preventive blow falls also on pre-court testimonial compulsion. The condition, as the decisions now go, is that the person compelled must be an accused. Both precedent procurement and subsequent exhibition of self-incriminating testimony are obviated by intelligent constitutional anticipation. (at p. 449) 103. In upholding this broad view of Article 20(3), V.R. Krishna Iyer, J. relied heavily on the decision of the US Supreme Court in Ernesto Miranda v. Arizona, 384 US 436 (1966). The majority opinion (by Earl Warren, C.J.) laid down that custodial statements could not be used as evidence unless the police officers had administered warnings about the accused's right to remain silent. The decision also recognised the right to consult a lawyer prior to and during the course of custodial interrogations. The practice promoted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant's statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect the precious Fifth Amendment right is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. ... It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carried its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. [Professor Sutherland, `Crime and Confessions', 79 Harvard Law Review 21, 37 (1965)] The current practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles -that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. 105. The opinion also explained the significance of having a counsel present during a custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lsion with regard to the custodial statements, thereby rendering them inadmissible as evidence. The position in India is different since there is no automatic presumption of compulsion in respect of custodial statements. However, if the fact of compulsion is proved then the resulting statements are rendered inadmissible as evidence. Who can invoke the protection of Article 20(3)? 107. The decision in Nandini Satpathy's case, (supra.) also touched on the question of who is an `accused' for the purpose of invoking Article 20(3). This question had been left open in M.P. Sharma's case (supra.). Subsequently, it was addressed in Kathi Kalu Oghad (supra.), at p. 37: To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, anytime after the statement has been made. 108. While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section 161(2), CrPC is wider. Section 161(2) read with 161(1) protects `any person s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t extends to other offences about which the accused has reasonable apprehension of implication from his answer. This conclusion also flows from `tendency to be exposed to a criminal charge'. A `criminal charge' covers any criminal charge then under investigation or trial or which imminently threatens the accused. 110. Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for giving false evidence. Therefore, the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused, suspects and witnesses during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower than the protection given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommitted or not. In such a case there is no accusation, either formal or otherwise, against any specified individual; there may be a general allegation that the affairs are irregularly, improperly or illegally managed ; but who would be responsible for the affairs which are reported to be irregularly managed is a matter which would be determined at the end of the enquiry. At the commencement of the enquiry and indeed throughout its proceedings there is no accused person, no accuser, and no accusation against anyone that he has committed an offence. In our opinion a general enquiry and investigation into the affairs of the company thus contemplated cannot be regarded as an investigation which starts with an accusation contemplated in Article 20(3) of the Constitution. 112. A similar issue arose for consideration in Romesh Chandra Mehta v. State of West Bengal, [1969] 2 SCR 461, wherein it was held, at p. 472: Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from the evidence. 7 Another possibility is that of `derivative use', i.e. when information revealed during questioning leads to the discovery of independent materials, thereby furnishing a link in the chain of evidence gathered by the investigators. 7 Yet another possibility is that of `transactional use', i.e. when the information revealed can prove to be helpful for the investigation and prosecution in cases other than the one being investigated. 7 A common practice is that of extracting materials or information, which are then compared with materials that are already in the possession of the investigators. For instance, handwriting samples and specimen signatures are routinely obtained for the purpose of identification or corroboration. 115. The decision in Nandini Satpathy's case (supra.) sheds light on what constitutes incrimination for the purpose of Article 20(3). Krishna Iyer, J. observed, at pp. 449-450: In this sense, answers that would in themselves support a conviction are confessions but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Relevant replies which furnish a real and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on the bounds between constitutional proscription and testimonial permission: `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 provisions, 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 at least probable, considered by itself.' [1962] 3 SCR 10, 32 Again the Court indicated that Article 20(3) could be invoked only against statements which `had a material bearing on the criminality of the maker of the statement'. `By itself' does not exclude the setting or other integral circumstances but means something in the fact disclosed a guilt element. Blood on clothes, gold bars with notorious marks and presence on the scene or possession of the lethal weapon or corrupt currency have a tale to tell, beyond red fluid, precious metal, gazing at the stars or testing sharpness or value of the rupee. The setting of the case is an implied component of the statement. 118. In light of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. However, Section 27 of the Evidence Act incorporates the `theory of confirmation by subsequent facts' - i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which `furnish a link in the chain of evidence' needed for a successful prosecution. This provision reads as follows: 27. How much of information received from accused may be proved. - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 120. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence, and therefore is a `witness' during the investigation. Unless, however he is `compelled' to give the information he cannot be said to be `compelled' to be a witness; and so Article 20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under s. 27. There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Art. 20(3); but there is no such infringement where he gives the information without any compulsion. 122. We must also address another line of reasoning which was adopted in one of the impugned judgments. It was stated that the exclusionary rule in evidence law is applicable to statements that are inculpatory in nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not be prosecuted on the basis of the fruits of such testimony. Immunity against transactional use will shield a witness from criminal charges in cases other than the one being investigated. It is of course entirely up to the investigating agencies to decide whether to offer immunity and in what form. Even though this is distinctly possible, it is difficult to conceive of such a situation in the context of the present case. A person who is given an offer of immunity against prosecution is far more likely to voluntarily cooperate with the investigation efforts. This could be in the form of giving testimony or helping in the discovery of material evidence. If a person is freely willing to cooperate with the investigation efforts, it would be redundant to compel such a person to undergo the impugned tests. If reliance on such tests is sought for refreshing a cooperating witness' memory, the person will in all probability give his/her consent to undergo these tests. 125. It could be argued that the compulsory administration of the impugned tests can prove to be useful in instances where the cooperating witness has difficulty in remembering the relevant facts or is wilfully con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as in India for the purpose of examining whether any amendments are necessary in the Code of Criminal Procedure, 1973. On a review, we find that no changes in the law relating to silence of the accused are necessary and if made, they will be ultra vires of Article 20(3) and Article 21 of the Constitution of India. We recommend accordingly. 128. Some commentators have argued that the `rule against adverse inferences from silence' should be broadly construed in order to give protection against non-penal consequences. It is reasoned that the fact of a person's refusal to answer questions should not be held against him/her in a wide variety of settings, including those outside the context of criminal trials. A hypothetical illustration of such a setting is a deportation hearing where an illegal immigrant could be deported following a refusal to answer questions or furnish materials required by the concerned authorities. This question is relevant for the present case because a person who refuses to undergo the impugned tests during the investigative stage could face non-penal consequences which lie outside the protective scope of Article 20(3). For example, a person w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors are already acquainted with. The relevant consideration for extending the protection of Article 20(3) is whether the materials are likely to lead to incrimination by themselves or `furnish a link in the chain of evidence' which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred. 130. It is quite evident that the narcoanalysis technique involves a testimonial act. A subject is encouraged to speak in a drug-induced state, and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation. In one of the impugned judgments, the compulsory administration of the narcoanalysis technique was defended on the ground that at the time of conducting the test, it is not known whether the results will eventually prove to be inculpatory or exculpatory. We have already rejected this reasoning. We see no other obstruction to the proposition that the compulsory administration of the narcoanalysis technique amounts to `testimonial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. 133. These observations suggest that the phrase `to be a witness' is not confined to oral testimony for the purpose of invoking Article 20(3) and that it includes certain non-verbal forms of conduct such as the production of documents and the making of intelligible gestures. However, in Kathi Kalu Oghad (supra.), there was a disagreement between the majority and minority opinions on whether the expression `to be a witness' was the same as `to furnish evidence'. In that case, this Court had examined whether certain statutory provisions, namely - Section 73 of the Evidence Act, Sections 5 and 6 of the Identification of Prisoners Act, 1920 and Section 27 of the Evidence Act were compatible with Article 20(3). Section 73 of the Evidence Act empowered courts to obtain specimen handwriting or signatures and finger impressions of an accused person for purposes of comparison. Sections 5 and 6 of the Identification of Prisoners Act empowered a Magistrate to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said `to be a witness' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma's case, [1954] SCR 1077, that the prohibition in cl. (3) of Art. 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as one that was limited to oral or documentary evidence, while further confining the same to statements that could lead to incrimination by themselves, as opposed to those used for the purpose of identification or comparison with facts already known to the investigators. The minority opinion authored by Das Gupta, J. (3 judges) took a different approach, which is evident from the following extracts, Id. at pp. 40-43: That brings us to the suggestion that the expression `to be a witness' must be limited to a statement whether oral or in writing by an accused person imparting knowledge of relevant facts; but that mere production of some material evidence, whether documentary or otherwise would not come within the ambit of this expression. This suggestion has found favour with the majority of the Bench, we think however that this is an unduly narrow interpretation. We have to remind ourselves that while on the one hand we should bear in mind that the Constitution-makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-46: But the evidence of specimen handwriting or the impressions of the accused person's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. This view, it may be pointed out does not in any way militate against the policy underlying the rule against `testimonial compulsion' we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merber v. California, 384 US 757 (1966), the U.S. Supreme Court had to determine whether an involuntary blood test of a defendant had violated the Fifth Amendment. The defendant was undergoing treatment at a hospital following an automobile accident. A blood sample was taken against his will at the direction of a police officer. Analysis of the same revealed that Schmerber had been intoxicated and these results were admitted into evidence, thereby leading to his conviction for drunk driving. An objection was raised on the basis of the Fifth Amendment and the majority opinion (Brennan, J.) relied on a distinction between evidence of a `testimonial' or `communicative' nature as opposed to evidence of a `physical' or `real nature', concluding that the privilege against self-incrimination applied to the former but not to the latter. In arriving at this decision, reference was made to several precedents with a prominent one being United States v. Holt, 218 US 245 (1910). In that case, a defendant was forced to try on an article of clothing during the course of investigation. It had been ruled that the privilege against self-incrimination prohibited the use of compulsion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to compel `responses which are essentially testimonial' such as a lie-detector test measuring physiological responses during interrogation. 139. Following the Schmerber decision (supra.), the distinction between physical and testimonial evidence has been applied in several cases. However, some complexities have also arisen in the application of the testimonial-physical distinction to various fact-situations. While we do not need to discuss these cases to decide the question before us, we must take note of the fact that the application of the testimonial- physical distinction can be highly ambiguous in relation to non-verbal forms of conduct which nevertheless convey relevant information. Among other jurisdictions, the European Court of Human Rights (ECtHR) has also taken note of the distinction between testimonial and physical acts for the purpose of invoking the privilege against self-incrimination. In Saunders v. United Kingdom, (1997) 23 EHRR 313, it was explained: The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order such a medical examination. S.K. Ghose, J. concurred, at p. 604: Nevertheless the examination of an arrested person in hospital by a doctor, not for the benefit of the prisoner's health, but simply by way of a second search, is not provided for by Code, and is such a case the doctor may not examine the prisoner without his consent. It would be a rule of caution to have such consent noted in the medical report, so that the doctor would be in a position to testify to such consent if called upon to do so. A similar conclusion was arrived at by Tarkunde, J. in Deomam Shamji Patel v. State of Maharashtra, AIR 1959 Bom 284, who held that a person suspected or accused of having committed an offence cannot be forcibly subjected to a medical examination. It was also held that if police officers use force for this purpose, then a person can lawfully exercise the right of private defence to offer resistance. 142. It was the 37th and 41st Reports of the Law Commission of India which recommended the insertion of a provision in the Code of Criminal Procedure to enable medical examination without the consent of an accused. These recommendations proved to be the precursor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. [See: 41st Report of the Law Commission of India, Vol. I (September 1969), Para 5.1 at p. 37] 143. We were also alerted to some High Court decisions which have relied on Kathi Kalu Oghad (supra.) to approve the taking of physical evidence such as blood and hair samples in the course of investigation. Following the overhaul of the Code of Criminal Procedure in 1973, the position became amply clear. In recent years, the judicial power to order a medical examination, albeit in a different context, has been discussed by this Court in Sharda v. Dharampal, (2003) 4 SCC 493. In that case, the contention related to the validity of a civil court's direction for conducting a medical examination to ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu Marriage Act, 1955. S.B. Sinha, J. held that Article 20(3) was anyway not applicable in a civil proceeding and that the civil court could direct the medical examination in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, since there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Explanation. - In this section and in sections 53-A and 54, - (a) `examination' shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case; (b)`registered medical pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed techniques at the time of the 2005 amendment and consciously chose not to include them in the amended Explanation to Sections 53, 53-A and 54 of the CrPC. It was reasoned that this choice recognised the distinction between testimonial acts and physical evidence. While bodily substances such as blood, semen, sputum, sweat, hair and fingernail clippings can be readily characterised as physical evidence, the same cannot be said for the techniques in question. This argument was supported by invoking the rule of `ejusdem generis' which is used in the interpretation of statutes. This rule entails that the meaning of general words which follow specific words in a statutory provision should be construed in light of the commonality between those specific words. In the present case, the substances enumerated are all examples of physical evidence. Hence the words `and such other tests' which appear in the Explanation to Sections 53, 53-A and 54 of the CrPC should be construed to include the examination of physical evidence but not that of testimonial acts. 149. We are inclined towards the view that the results of the impugned tests should be treated as testimonial acts for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the statute be given the meaning they would have received immediately after the statute's enactment or did they intend as dynamists may contend that it would be proper for the court to adopt the current meaning of the words? The courts have now generally leaned in favour of dynamic construction. [...] But the doctrine has also its limitations. For example it does not mean that the language of an old statute can be construed to embrace something conceptually different. The guidance on the question as to when an old statute can apply to new state of affairs not in contemplation when the statute was enacted was furnished by Lord Wilberforce in his dissenting speech in Royal College of Nursing of the U.K. v. Dept. of Health and Social Security, (1981) 1 All ER 545, which is now treated as authoritative. (...) Lord Wilberforce said, at pp. 564-565: In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. 152. In light of this discussion, there are some clear obstructions to the dynamic interpretation of the amended Explanation to Sections 53, 53-A and 54 of the CrPC. Firstly, the general words in question, i.e. `and such other tests' should ordinarily be read to include tests which are in the same genus as the other forms of medical examination that have been specified. Since all the explicit references are to the examination of bodily substances, we cannot readily construe the said phrase to include the impugned tests because the latter seem to involve testimonial responses. Secondly, the compulsory administration of the impugned techniques is not the only means for ensuring an expeditious investigation. Furthermore, there is also a safe presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no statutory prohibition against them either. 155. Another pertinent contention raised by the appellants is that the involvement of medical personnel in the compulsory administration of the impugned tests is violative of their professional ethics. In particular, criticism was directed against the involvement of doctors in the narcoanalysis technique and it was urged that since the content of the drug- induced revelations were shared with investigators, this technique breaches the duty of confidentiality which should be ordinarily maintained by medical practitioners. [See generally: Amar Jesani, `Willing participants and tolerant profession: Medical ethics and human rights in narco-analysis', Indian Journal of Medical Ethics, Vol. 16(3), July-Sept. 2008] The counsel have also cited the text of the `Principles of Medical Ethics' adopted by the United Nations General Assembly [GA Res. 37/194, 111th Plenary Meeting] on December 18, 1982. This document enumerates some `Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture, and other cruel, inhuman or degrading treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials and information that is already in the possession of investigators. 158. We have already stated that the narcoanalysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the `right against self-incrimination'. The crucial test laid down in Kathi Kalu Oghad, (supra.) is that of `imparting knowledge in respect of relevant fact by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation' [Id. at p. 30]. The difficulty arises since the majority opinion in that case appears to confine the understanding of `personal testimony' to the conveyance of personal knowledge through oral statements or statements in writing. The results obtained from polygraph examination or a BEAP test are not in the nature of oral or written statements. Instead, inferences are drawn from the measurement of physiological responses recorded during the performance of these tests. It could also be argued that tests such as polygraph examination and the BEAP test do not involve a `positive voli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d history of the Fifth Amendment. 160. Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject's mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject's physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject's familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge of the test subject's thoughts and memories, either in the actual or constructive sense. Therefore, even if a highly-strained analogy were to be made between the results obtained from the impugned tests and the production of documents, the weight of precedents leans towards restrictions on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make use of substantive knowledge and to compare one's `inner world' (previous knowledge) with the `outside world' (stimuli such as questions from an interrogator). Excluded are simple psychological responses to stimuli such as fear, warmness, and hunger: the mental processes that produce muscular movements; and one's will or faculty for choice. (internal citation omitted) 164. The above-mentioned authors have taken a hypothetical example where the inferences drawn from an involuntary polygraph test that did not require verbal answers, led to the discovery of incriminating evidence. They have argued that if the scope of the Fifth Amendment extends to protecting the subject in respect of `substantive results of cognition', then reliance on polygraph test results would violate the said right. A similar conclusion has also been made by the National Human Rights Commission, as evident from the following extract in the Guidelines Relating to Administration of Polygraph Test [Lie Detector Test] on an Accused (2000): The extent and nature of the `self-incrimination' is wide enough to cover the kinds of statements that were sought to be induced. In M.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In order to account for these possibilities, we must examine whether the involuntary administration of any of these tests is compatible with the constitutional guarantee of `substantive due process'. The standard of `substantive due process' is of course the threshold for examining the validity of all categories of governmental action that tend to infringe upon the idea of `personal liberty. We will proceed with this inquiry with regard to the various dimensions of `personal liberty' as understood in the context of Article 21 of the Constitution, which lays down that: `No person shall be deprived of his life and liberty except according to procedure established by law'. 168. Since administering the impugned tests entails the physical confinement of the subject, it is important to consider whether they can be read into an existing statutory provision. This is so because any form of restraint on personal liberty, howsoever slight it may be, must have a basis in law. However, we have already explained how it would not be prudent to read the explanation to Sections 53, 53-A and 54 of the CrPC in an expansive manner so as to include the impugned techniques. The se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the criminal justice system is that the police and the judiciary are empowered to exercise a reasonable degree of coercive powers. Hence, the provision that enables Courts to order a person who is under arrest to undergo a medical examination also provides for the use of `force as is reasonably necessary' for this purpose. It is evident that the notion of `personal liberty' does not grant rights in the absolute sense and the validity of restrictions placed on the same needs to be evaluated on the basis of criterion such as `fairness, non- arbitrariness, and reasonableness'. 172. Both the appellants and the respondents have cited cases involving the compelled extraction of blood samples in a variety of settings. An analogy has been drawn between the pin-prick of a needle for extracting a blood sample and the intravenous administration of drugs such as sodium pentothal. Even though the extracted sample of blood is purely physical evidence as opposed to a narcoanalysis interview where the test subject offers testimonial responses, the comparison can be sustained to examine whether puncturing the skin with a needle or an injection is an unreasonable restraint on `per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of intoxicating liquors. Among other questions, the Court also ruled that this provision did not violate Article 21. Reliance was placed on a decision of the U.S. Supreme Court in Paul H. Breithaupt v. Morris Abram, 352 US 432 (1957), wherein the contentious issue was whether a conviction on the basis of an involuntary blood-test violated the guarantee of `due process of law'. In deciding that the involuntary extraction of the blood sample did not violate the guarantee of `Due Process of Law', Clark, J. observed, at pp. 435-437: there is nothing `brutal' or `offensive' in the taking of a blood sample when done as in this case, under the protective eye of a physician. To be sure, the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right and certainly the test administered here would not be considered offensive by even the most delicate. Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of `decency and fairness' that has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom an arrested person, it is justified by the provisions of Sections 53 and 54, CrPC. We can also refer to the following observations in Anil Anantrao Lokhande v. State of Maharashtra, 1981 Cri L J 125 (Bom), (in Para. 30): Once it is held that Section 53 of the Code of Criminal Procedure does confer a right upon the investigating machinery to get the arrested persons medically examined by the medical practitioner and the expression used in Section 53 includes in its import the taking of sample of the blood for analysis, then obviously the said provision is not violative of the guarantee incorporated in Article 21 of the Constitution of India. 176. This line of precedents shows that the compelled extraction of blood samples in the course of a medical examination does not amount to `conduct that shocks the conscience'. There is also an endorsement of the view that the use of `force as may be reasonably necessary' is mandated by law and hence it meets the threshold of `procedure established by law'. In this light, we must restate two crucial considerations that are relevant for the case before us. Firstly, the restrictions placed on `personal liberty' in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance activities, domiciliary visits and periodic inquiries about such persons. The intention was to monitor persons suspected or charged with offences in the past, with the aim of preventing criminal acts in the future. At the time, there was no statutory basis for these regulations and they had been framed in the exercise of administrative functions. The majority opinion (Ayyangar, J.) held that these regulations did not violate `personal liberty', except for those which permitted domiciliary visits. The other restraints such as surveillance activities and periodic inquiries about `history-sheeters' were justified by observing, at Para. 20: the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III. 179. Ayyangar, J. distinguished between surveillance activities conducted in the routine exercise of police powers and the specific act of unauthorised intrusion into a person's home which violated `personal liberty'. However, the minority opinion (Subba Rao, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be described as the `right to be let alone and a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among others. No one can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical'. However, it was also ruled that exceptions may be made if a person voluntarily thrusts himself into a controversy or any of these matters becomes part of public records or relates to an action of a public official concerning the discharge of his official duties. 182. In People's Union for Civil Liberties v. Union of India, AIR 1997 SC 568, it was held that the unauthorised tapping of telephones by police personnel violated the `right to privacy' as contemplated under Article 21. However, it was not stated that telephone-tapping by the police was absolutely prohibited, presumably because the same may be necessary in some circumstances to prevent criminal acts and in the course of investigation. Hence, such intrusive practices are permissible if done under a proper legislative mandate that regulates their use. This intended balance b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India. 185. The discussion on the `right to privacy' in Sharda v. Dharampal, (supra.) also cited a decision of the Court of Appeal (in the U.K.) in R (on the application of S) v. Chief Constable of South Yorkshire, (2003) 1 All ER 148 (CA). The contentious issues arose in respect of the retention of fingerprints and DNA samples taken from persons who had been suspected of having committed offences in the past but were not convicted for them. It was argued that this policy violated Articles 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms, 1950 [Hereinafter `EctHR]. Article 8 deals with the `Right to respect for private and family life' while Article 14 lays down the scope of the `Prohibition Against Discrimination'. For the present discussion, it will be useful to examine the language of Article 8 of the EctHR:- Article 8 - Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... So far as the prevention and detection of crime is concerned, it is obvious the larger the databank of fingerprints and DNA samples available to the police, the greater the value of the databank will be in preventing crime and detecting those responsible for crime. There can be no doubt that if every member of the public was required to provide fingerprints and a DNA sample this would make a dramatic contribution to the prevention and detection of crime. To take but one example, the great majority of rapists who are not known already to their victim would be able to be identified. However, the 1984 Act does not contain blanket provisions either as to the taking, the retention, or the use of fingerprints or samples; Parliament has decided upon a balanced approach. Lord Woolf, C.J. also referred to the following observations made by Lord Steyn in an earlier decision of the House of Lords, which was reported as Attorney General's Reference (No. 3 of 1999), (2001) 1 All ER 577, at p. 584: It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of Article 20(3). Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain. 189. The judgment delivered in Sharda v. Dharampal, (supra.) had surveyed the above-mentioned decisions to conclude that a person's right to privacy could be justifiably curtailed if it was done in light of competing interests. Reference was also made to some statutes that permitted the compulsory administration of medical tests. For instance, it was observed, at Para. 61-62: Having outlined the law relating to privacy in India, it is relevant in this context to notice that certain laws have been enacted by the Indian Parliament where the accused may be subjected to certain medical or other tests. By way of example, we may refer to Sections 185, 202, 203 and 204 of the Motor Vehicles Act, Sections 53 and 54 of the Code of Criminal Procedure and Section 3 of the Identification of Prisoners Act, 1920. Reference in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual's decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. 193. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person's mental processes is not provided for under any statute and it most certainly comes into conflict with the `right against self-incrimination'. However, this determination does not account for circumstances where a person could be subjected to any of the impugned tests but not exposed to criminal charges and the possibility of conviction. In such cases, he/she could still face adverse consequences such as custodial abuse, surveillanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own for a prisoner but not puffed out altogether. 195. In the above-mentioned case, this Court had disapproved of practices such as solitary-confinement and the use of bar- fetters in prisons. It was held that prisoners were also entitled to `personal liberty' though in a limited sense, and hence judges could enquire into the reasonableness of their treatment by prison-authorities. Even though `the right against cruel, inhuman and degrading punishment' cannot be asserted in an absolute sense, there is a sufficient basis to show that Article 21 can be invoked to protect the `bodily integrity and dignity' of persons who are in custodial environments. This protection extends not only to prisoners who are convicts and under-trials, but also to those persons who may be arrested or detained in the course of investigations in criminal cases. Judgments such as D.K. Basu v. State of West Bengal, AIR 1997 SC 610, have stressed upon the importance of preventing the `cruel, inhuman or degrading treatment' of any person who is taken into custody. In respect of the present case, any person who is forcibly subjected to the impugned tests in the environs of a forensic laborator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 16 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Article 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment. 2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion. 197. We were also ale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an or Degrading Treatment or Punishment (1984) [Hereinafter `Torture Convention'] This is so because even though India is a signatory to this Convention, it has not been ratified by Parliament in the manner provided under Article 253 of the Constitution and neither do we have a national legislation which has provisions analogous to those of the Torture Convention. However, these materials do hold significant persuasive value since they represent an evolving international consensus on the nature and specific contents of human rights norms. 200. The definition of torture indicates that the threshold for the same is the intentional infliction of physical or mental pain and suffering, by or at the instance of a public official for the purpose of extracting information or confessions. `Cruel, Inhuman or Degrading Treatment' has been defined as conduct that does not amount to torture but is wide enough to cover all kinds of abuses. Hence, proving the occurrence of `cruel, inhuman or degrading treatment' would require a lower threshold than that of torture. In addition to highlighting these definitions, the counsel for the appellants have submitted that causing physical pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with situations where the test results could trigger undesirable behaviour. 202. We must also contemplate situations where a threat given by the investigators to conduct any of the impugned tests could prompt a person to make incriminatory statements or to undergo some mental trauma. Especially in cases of individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice, the mere apprehension of undergoing scientific tests that supposedly reveal the truth could push them to make confessional statements. Hence, the act of threatening to administer the impugned tests could also elicit testimony. It is also quite conceivable that an individual may give his/her consent to undergo the said tests on account of threats, false promises or deception by the investigators. For example, a person may be convinced to give his/her consent after being promised that this would lead to an early release from custody or dropping of charges. However, after the administration of the tests the investigators may renege on such promises. In such a case the relevant inquiry is not confined to the apparent voluntariness of the act of undergoing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In an ordinary interrogation, the investigator asks questions one by one and the subject has the choice of remaining silent or answering each of these questions. This choice is repeatedly exercised after each question is asked and the subject decides the nature and content of each testimonial response. On account of the continuous exercise of such a choice, the subject's verbal responses can be described as voluntary in nature. However, in the context of the impugned techniques the test subject does not exercise such a choice in a continuous manner. After the initial consent is given, the subject has no conscious control over the subsequent responses given during the test. In case of the narcoanalysis technique, the subject speaks in a drug-induced state and is clearly not aware of his/her own responses at the time. In the context of polygraph examination and the BEAP tests, the subject cannot anticipate the contents of the `relevant questions' that will be asked or the `probes' that will be shown. Furthermore, the results are derived from the measurement of physiological responses and hence the subject cannot exercise an effective choice between remaining silent and im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actice of medicine. It has been suggested that patients undergo a certain degree of `physical or mental pain and suffering' on account of medical interventions such as surgeries and drug- treatments. However, such interventions are acceptable since the objective is to ultimately cure or prevent a disease or disorder. So it is argued that if the infliction of some `pain and suffering' is permitted in the medical field, it should also be tolerated for the purpose of expediting investigations in criminal cases. This is the point where our constitutional values step in. A society governed by rules and liberal values makes a rational distinction between the various circumstances where individuals face pain and suffering. While the infliction of a certain degree of pain and suffering is mandated by law in the form of punishments for various offences, the same cannot be extended to all those who are questioned during the course of an investigation. Allowing the same would vest unlimited discretion and lead to the disproportionate exercise of police powers. Incompatibility with the `Right to fair trial' 207. The respondents' position is that the compulsory administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aling with each of the tests in question. A common concern expressed with regard to each of these techniques was the questionable reliability of the results generated by them. In respect of the narcoanalysis technique, it was observed that there is no guarantee that the drug- induced revelations will be truthful. Furthermore, empirical studies have shown that during the hypnotic stage, individuals are prone to suggestibility and there is a good chance that false results could lead to a finding of guilt or innocence. As far as polygraph examination is concerned, though there are some studies showing improvements in the accuracy of results with advancement in technology, there is always scope for error on account of several factors. Objections can be raised about the qualifications of the examiner, the physical conditions under which the test was conducted, the manner in which questions were framed and the possible use of `countermeasures' by the test subject. A significant criticism of polygraphy is that sometimes the physiological responses triggered by feelings such as anxiety and fear could be misread as those triggered by deception. Similarly, with the P300 Waves test there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized re-constructions, especially in sensational criminal cases. 213. Another important consideration is that of ensuring parity between the procedural safeguards that are available to the prosecution and the defence. If we were to permit the compulsory administration of any of the impugned techniques at the behest of investigators, there would be no principled basis to deny the same opportunity to defendants as well as witnesses. If the investigators could justify reliance on these techniques, there would be an equally compelling reason to allow the indiscrete administration of these tests at the request of convicts who want re-opening of their cases or even for the purpose of attacking and rehabilitating the credibility of witnesses during a trial. The decision in United States v. Scheffer, 523 US 303 (1998), has highlighted the concerns with encouraging litigation that is collateral to the main facts in issue. We are of the view that an untrammelled right of resorting to the techniques in question will lead to an unnecessary rise in the volume of frivolous litigation before our Courts. 214. Lastly, we must consider the possibility that the victims of offences could be forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pragmatic perspective on coercive interrogation', 39 Loyola University Chicago Law Journal 329- 360 (Winter 2008)] 216. While these arguments merit consideration, it must be noted that ordinarily it is the task of the legislature to arrive at a pragmatic balance between the often competing interests of `personal liberty' and public safety. In our capacity as a constitutional court, we can only seek to preserve the balance between these competing interests as reflected in the text of the Constitution and its subsequent interpretation. There is absolutely no ambiguity on the status of principles such as the `right against self-incrimination' and the various dimensions of `personal liberty'. We have already pointed out that the rights guaranteed in Articles 20 and 21 of the Constitution of India have been given a non-derogable status and they are available to citizens as well as foreigners. It is not within the competence of the judiciary to create exceptions and limitations on the availability of these rights. 217. Even though the main task of constitutional adjudication is to safeguard the core organising principles of our polity, we must also highlight some p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity measures when such abuses do take place. 219. Thirdly, the claim that the use of these techniques will only be sought in cases involving heinous offences rings hollow since there will no principled basis for restricting their use once the investigators are given the discretion to do so. From the statistics presented before us as well as the charges filed against the parties in the impugned judgments, it is obvious that investigators have sought reliance on the impugned tests to expedite investigations, unmindful of the nature of offences involved. In this regard, we do not have the authority to permit the qualified use of these techniques by way of enumerating the offences which warrant their use. By itself, permitting such qualified use would amount to a law- making function which is clearly outside the judicial domain. 220. One of the main functions of constitutionally prescribed rights is to safeguard the interests of citizens in their interactions with the government. As the guardians of these rights, we will be failing in our duty if we permit any citizen to be forcibly subjected to the tests in question. One could argue that some of the parties who will benefit from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge that is relevant to the facts in issue'. The results obtained from each of the impugned tests bear a `testimonial' character and they cannot be categorised as material evidence. 222. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of `substantive due process' which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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