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Smt. Selvi Versus State of Karnataka

2010 AIR 1974, 2010 (5) SCR 381, 2010 (7) SCC 263, 2010 (5) JT 11, 2010 (4) SCALE 690 - Criminal Appeal No. 1267 of 2004 - Dated:- 5-5-2010 - 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 investiga .....

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all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings. 2. Objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent. Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future .....

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r strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is that these scientific techniques are a softer alternative to the regrettable and allegedly widespread use of third degree methods by investigators. 3. The involuntary administration of the impu .....

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protective scope of Article 20(3). It was further ruled that the verbal revelations made during a narcoanalysis test do not attract the bar of Article 20(3) since the inculpatory or exculpatory nature of these revelations is not known at the time of conducting the test. To address these 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 investi .....

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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 been raised with respect .....

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ivacy', both in a physical and mental sense. 5. The scientific validity of the impugned techniques has been questioned and it is argued that their results are not entirely reliable. For instance, the narcoanalysis technique involves the intravenous administration of sodium pentothal, a drug which lowers inhibitions on part of the subject and induces the person to talk freely. However, empirical studies suggest that the drug-induced revelations need not necessarily be true. Polygraph examinat .....

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ral dimensions of the right to a fair trial such as the requisite standard of proving guilt beyond reasonable doubt and the right of the accused to present a defence. We must be mindful of the fact that these requirements have long been recognised as components of personal liberty' under Article 21 of the Constitution. Hence it will be instructive to gather some insights about the admissibility of scientific evidence. 6. In the course of the proceedings before this Court, oral submissions we .....

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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 man .....

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iques is a reasonable restriction on personal liberty' as understood in the context of Article 21 of the Constitution? 8. Before answering these questions, it is necessary to examine the evolution and specific uses of the impugned techniques. Hence, a description of each of the test procedures is followed by an overview of their possible uses, both within and outside the criminal justice system. It is also necessary to gauge the limitations of these techniques. Owing to the dearth of Indian .....

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called a hydrosphygmograph. A similar device was used by psychologist William Marston during World War I in espionage cases, which proved to be a precursor to its use in the criminal justice system. In 1921, John Larson incorporated the measurement of respiration rate and by 1939 Leonard Keeler added skin conductance and an amplifier to the parameters examined by a polygraph machine. 10. The theory behind polygraph tests is that when a subject is lying in response to a question, he/she will pro .....

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changes in aspects such as respiration, blood pressure, blood flow, pulse and galvanic skin resistance. The truthfulness or falsity on part of the subject is assessed by relying on the records of the physiological responses. [See: Laboratory Procedure Manual - Polygraph Examination (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi - 2005)] 11. There are three prominent polygraph examination techniques: i. The relevant-irrelevant (R-I) technique ii. The c .....

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ession 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), M .....

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false denials. These responses are compared with the responses triggered by the relevant questions. Theoretically, a truthful subject will show greater physiological responses to the control questions which he/she has reluctantly answered falsely, than to the relevant questions, which the subject can easily answer truthfully. Conversely, a deceptive subject will show greater physiological responses while giving false answers to relevant questions in comparison to the responses triggered by fals .....

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, the result is compared to a standard numerical value to indicate the overall level of deception. The net conclusion may indicate truth, deception or uncertainty. 13. The use of polygraph examinations in the criminal justice system has been contentious. In this case, we are mainly considered with situations when investigators seek reliance on these tests to detect deception or to verify the truth of previous testimonies. Furthermore, litigation related to polygraph tests has also involved situa .....

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acted provisions 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 .....

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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 have been permitted for the purpose of screening public employees, both at the stage of recruitment and at regular intervals during the service-period. In the U.S.A., the widespread acceptance of polygraph tests for checking the antecedents and monitoring the conduct of public employees .....

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tionable because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained. The mental .....

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s will not be helpful. Errors may also result from memory-hardening', i.e. a process by which the subject has created and consolidated false memories about a particular incident. This commonly occurs in respect of recollections of traumatic events and the subject may not be aware of the fact that he/she is lying. 17. The errors associated with polygraph tests are broadly grouped into two categories, i.e., false positives' and false negatives'. A false positive' occurs when the re .....

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owever, 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 ra .....

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clusion was stated in its report, i.e. The Polygraph and Lie-Detection: Committee to Review the scientific evidence on the Polygraph (Washington D.C.: National Academies Press, 2003) at pp. 212-213: "Polygraph Accuracy: Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the .....

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can be consistently achieved. Theoretical Basis: The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing. Research Progress: Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strength .....

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ill bring only modest improvements in accuracy." 20. A Working Party of the British Psychological Society (BPS) also came to a similar conclusion in a study published in 2004. The key 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 te .....

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g 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 innocent man, suspected of murdering his beloved wife, is asked questions about his wife in a polygraph test, the memo .....

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when recognising crucial details of a crime. This premise has strong support in psychophysiological research (Fiedler, Schmidt & Stahl, 2002)." 21. Coming to judicial precedents, a decision reported as Frye v. United States, (1923) 54 App DC 46, dealt with a precursor to the polygraph which detected deception by measuring changes in systolic blood pressure. In that case the defendant was subjected to this test before the trial and his counsel had requested the court that the scientist w .....

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n this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological a .....

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cal 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 .....

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enactment of the Federal Rules of Evidence in 1975, wherein Rule 702 governed the admissibility of expert opinion testimony that was based on scientific findings. This rule provided that: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 23. It was hel .....

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everal other considerations will be applicable, such as: 7 whether the theory or technique in question can be and has been tested 7 whether it has been subjected to peer review and publication 7 its known or potential error rate 7 the existence and maintenance of standards controlling its operation 7 whether it has attracted widespread acceptance within the scientific community 24. It was further observed that such an inquiry should be a flexible one, and its focus must be solely on principles a .....

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#39; role to decide on the admission of expert testimony based on scientific techniques. It should also be kept in mind that Rule 403 of the Federal Rules of Evidence, 1975 empowers a trial judge to exclude any form of evidence if it is found that its probative value will be outweighed by its prejudicial effect. 25. Prior to the Daubert decision (supra.), most jurisdictions in the U.S.A. had disapproved of the use of polygraph tests in criminal cases. Some State jurisdictions had absolutely proh .....

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ions 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 .....

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bert (supra.) prescribed a more liberal criterion for determining the admissibility of scientific evidence, some Courts ruled that weightage could be given to polygraph results. For instance in United States v. Posado, 57 F.3d 428 (5th Circ. 1995), the facts related to a pre-trial evidentiary hearing where the defendants had asked for the exclusion of forty-four kilograms of cocaine that had been recovered from their luggage at an airport. The District Court had refused to consider polygraph evi .....

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bt that tremendous advances have been made in polygraph instrumentation and technique in the years since Frye. The test at issue in Frye measured only changes in the subject's systolic blood pressure in response to test questions. [Frye v. United States ...] Modern instrumentation detects changes in the subject's blood pressure, pulse, thoracic and abdominal respiration, and galvanic skin response. Current research indicates that, when given under controlled conditions, the polygraph tec .....

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graph 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 .....

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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 established standards for the admission of polygraph evidence. The said provision laid down that polygraph evidence would be admissible only when the following conditions are met: the examiner must have had at least 5 years experience in conducting polygraph tests and 20 hours of continuing education within the past year; the polygraph examinat .....

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that the expert opinion testimony regarding the polygraph results of defendant Galbreth is admissible. However, because the evidentiary reliability of opinion testimony regarding the results of a particular polygraph test is dependent upon a properly conducted examination by a highly qualified, experienced and skilful examiner, nothing in this opinion is intended to reflect the judgment that polygraph results are per se admissible. Rather, in the context of the polygraph technique, trial courts .....

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m a van which he had been driving. However, when he took an unstipulated polygraph test, the results suggested that he was not aware of the presence of drugs in the van. At the trial stage, the prosecution had moved to suppress the test results and the District Court had accordingly excluded the polygraph evidence. However, the Ninth Circuit Court remanded the case back after finding that the trial judge should have adopted the parameters enumerated in Daubert (supra.) to decide on the admissibi .....

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he 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 .....

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raph examination, shall not be admitted into evidence." 31. The facts were that Scheffer, a U.S. Air Force serviceman had faced court-martial proceedings because a routine urinalysis showed that he had consumed methamphetamines. However, a polygraph test suggested that he had been truthful in denying the intentional consumption of the drugs. His defence of innocent ingestion' was not accepted during the court-martial proceedings and the polygraph results were not admitted in evidence. T .....

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ight. 32. Eight judges agreed that testimony about polygraph test results should not be admissible on account of the inherent unreliability of the results obtained. Four judges agreed that reliance on polygraph results would displace the fact-finding role of the jury and lead to collateral litigation. In the words of Clarence Thomas, J., Id. at p. 309: "Rule 707 serves several legitimate interests in the criminal trial process. These interests include ensuring that only reliable evidence is .....

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polygraph results in accordance with the Daubert factors. However, the following stance was adopted, Id. at p. 312: "Although the degree of reliability of polygraph evidence 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 .....

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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 legitimately be concerned about the risk that juries will give excessive weight to the opinions of a polygrapher, clothed as they are .....

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entail assessments of such issues as whether the test and control questions were appropriate, whether a particular polygraph examiner was qualified and had properly interpreted the physiological responses, and whether other factors such as countermeasures employed by the examinee had distorted the exam results. Such assessments would be required in each and every case. It thus offends no constitutional principle for the President to conclude that a per se rule excluding all polygraph evidence is .....

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ation. It was observed that the inherent reliability of the test results is a sufficient ground to exclude the polygraph test results and expert testimony related to them. Stevens, J. filed a dissenting opinion in this case. 37. We have also come across a decision of the Canadian Supreme Court in R v Beland, [1987] 36 C.C.C. (3d) 481. In that case the respondents had been charged with conspiracy to commit robbery. During their trial, one of their accomplices had given testimony which directly im .....

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lts 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 o .....

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connection with the use of the polygraph. Polygraph evidence when tendered would be entirely self-serving and would shed no light on the real issues before the court. Assuming, as in the case at bar, that the evidence sought to be adduced would not fall within any of the well recognized exceptions to the operation of the rule - where it is permitted to rebut the allegation of a recent fabrication or to show physical, mental or emotional condition - it should be rejected. To do otherwise is to op .....

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ainst self- serving statements or, as it is sometimes called, the rule that a party cannot manufacture evidence for himself, and the falling foul will not be in any mere technical sense. The rule is sometimes applied in a mechanical unintelligent way to exclude evidence about which no realistic objection could be raised, as the leading case, Gillie v. Posho shows; but striking down defence polygraph evidence on this ground would be no mere technical reflex action of legal obscurantists. The poli .....

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e his lawyers will advise him to have several secret trial runs before the prosecution is approached. If nothing else, the dry runs will habituate him to the process and to the expected relevant questions." 39. On the possibility of using polygraph test results as character evidence, it was observed (Para. 14): "What is the consequence of this rule in relation to polygraph evidence? Where such evidence is sought to be introduced it is the operator who would be called as the witness and .....

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re, 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 o .....

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ding of a significant percentage of errors in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific. It exists within our established court procedures and must always be guarded against. The compelling reason, in my view, for the exclusion of the evidence of polygraph results in judicial proceedings is two-fold. First, the admission of polygraph evidence would run counter to the .....

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ombat, the determination of fact, including the veracity of parties and their witnesses, has been the duty of judges or juries upon an evaluation of the statements of witnesses. This approach has led to the development of a body of rules relating to the giving and reception of evidence and we have developed methods which have served well and have gained a wide measure of approval. They have facilitated the orderly conduct of judicial proceedings and are designed to keep the focus of the proceedi .....

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erefore 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 induc .....

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dium 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 Truth serum technique', 42(4) The Journal of Criminal Law, Criminology and Police Science 513-528 (Nov- Dec. 1951) at pp. 513-514]: "With the advent of anaesthesia about a century ago, it was observed that during the induction period and particularly during the recovery interval, patients were prone to make extremely .....

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loroform inhalations if needed. The pain relieving qualities of morphine are well known. Scopolamine appears to have the added property of blocking out memories of recent events. By the combination of these drugs in suitable dosage, morphine dulled labor pains without materially interfering with the muscular contractions of labor, while scopolamine wiped out subsequent memories of the delivery room ordeal. The technique was widely used in Europe but soon fell into disrepute among obstetricians o .....

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ich produced such utter candor, might be of value in obtaining factual information from persons who were thought to be lying. Dr. House's first paper presented in 1922 suggested drug administration quite similar to the standard twilight sleep' procedure: an initial dose of < grain of morphine sulphate together with 1/100 grain of scopolamine hydrobromide, followed at 20-30 minute intervals with smaller (1/200 - 1/400 grain) doses of scopolamine and periods of light chloroform anaesthe .....

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en 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 thr .....

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ss to discover the crux of the problem. To intelligently counteract such a force, it was first necessary to identify it. Thus, the use of sedative drugs, first to analyze the source of disturbance (narcoanalysis) and later to obtain the proper frame of mind in which the patient could and would talk out' his difficulties, and, as they say get them off his chest' - and thus relieve himself (narco-synthesis or narco-therapy) - was employed with signal success. In the narcoanalysis of war ne .....

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s the 1950's [See Project MKULTRA - The CIA's program of research in behavioral modification', On file with Schaffer Library of Drug Policy, Text available from <www.druglibrary.org>]. In recent years, the debate over the use of truth-serums' has been revived with demands for their use on persons suspected of involvement in terrorist activities. Coming to the test procedure, when the drug (sodium pentothal) is administered intravenously, the subject ordinarily descends into .....

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cteristics, namely:- 7 It facilitates handling of negative emotional responses (i.e. guilt, avoidance, aggression, frustration, non-responsiveness etc.) 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 fro .....

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esiologist, 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 recognised hospitals. While a psychiatrist and general physician perform the preliminary function of gauging whether the subject is mentally and physically fit to u .....

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ecution theories. Narcoanalysis tests have also been used to detect malingering' (faking of amnesia). The premise is that during the hypnotic stage' the subject is unable to wilfully suppress the memories associated with the relevant facts. Thus, it has been urged that drug-induced revelations can help to narrow down investigation efforts, thereby saving public resources. There is of course a very real possibility that information extracted through such interviews can lead to the uncover .....

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o refresh the memory of witnesses or to ascertain the mental capacity of persons to stand trial. Such uses can have a direct impact on the efficiency of investigations as well as the fairness of criminal trials. [See generally: George H. Dession, Lawrence Z. Freedman, Richard C. Donnelly and Frederick G. Redlich, Drug-Induced revelation and criminal investigation', 62 Yale Law Journal 315-347 (February 1953)] 47. It is also important to be aware of the limitations of the narcoanalysis' t .....

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e 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 .....

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sed in the course of the examination and the defendant did not object to the same. However, the test results showed that the subject's memory was not impaired and that he had been faking amnesia. At the trial, testimony about these findings was admitted, thereby leading to a conviction. Subsequently, Raymond Cens filed a civil suit against the psychiatrists alleging assault and illegal search. However, it was decided that the board had used routine psychiatric procedures and since the actual .....

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article published in 1961 [Andre A. Moenssens, Narcoanalysis in Law Enforcement', 52(4) The Journal of Criminal Law, Criminology and Police Science 453-458 (Nov.- Dec. 1961)] had surveyed some judicial precedents from the U.S.A. which dealt with the forensic uses of the narcoanalysis technique. The first reference is to a decision from the State of Missouri reported as State v. Hudson, 314 Mo. 599 (1926). In that case, the defence lawyer in a prosecution for rape attempted to rely on the ex .....

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classified otherwise than a self-serving declaration - is, in the present state of human knowledge, unworthy of serious consideration. We are not told from what well this serum is drawn or in what alembic its alleged truth compelling powers are distilled. Its origin is as nebulous as its effect is uncertain. ..." 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 influenc .....

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s 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 pento .....

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ar issue in Lindsey v. United States, 237 F. 2d 893 (9th Circ. 1956). In that case, the trial court had admitted a psychiatrist's opinion testimony which was based on a clinical examination that included psychological tests and a sodium pentothal induced interview. The subject of the interview was a fifteen-year old girl who had been sexually assaulted and had subsequently testified in a prosecution for rape. On cross-examination, the credibility of the victim's testimony had been doubte .....

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interview with the girl, while she was under narcosis, was also considered as evidence. The jury went on to record a finding of guilt. When the case was brought in appeal before the Ninth Circuit Court, the conviction was reversed on the ground that the defendant had been denied the due process of law'. It was held that before a prior consistent statement made under the influence of a sodium pentothal injection could be admitted as evidence, it should be scientifically established that the t .....

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alth 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 r .....

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ice officials obtained the services of a physician. In order to treat these withdrawal symptoms, the physician injected a combined dosage of 1/8 grain of Phenobarbital and 1/230 grain of Hyoscine. Hyoscine is the same as Scopolamine' which has been described earlier. This dosage appeared to have a calming effect on Townsend and after the physician's departure he promptly responded to questioning by the police and eventually made some confessional statements. The petitioner's statemen .....

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exclude the transcripts of the statements from the evidence. However, the trial judge denied this motion and admitted the court reporter's transcription of the confessional statements into evidence. Subsequently, a jury found Townsend to be guilty, thereby leading to his conviction. When the petitioner made a habeas corpus application before a Federal District Court, one of the main arguments advanced was that the fact of Scopolamine's character as a truth-serum had not been brought out .....

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examine the voluntariness of the confessional statements. Both the majority opinion as well as the dissenting opinion (Stewart, J.) concurred on the finding that a confession induced by the administration of drugs is constitutionally inadmissible in a criminal trial. On this issue, Warren, C.J. observed, 372 US 293 (1963), at pp. 307-308: "Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual's will wa .....

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ng 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 .....

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al. The drug-induced statements supposedly showed that the scheme was a joke or a prank. The trial court refused to admit the contents of this sodium amytal induced interview and the Fifth Circuit Court upheld this decision. In holding the same, it was also observed, Id. at p. 528: "Moreover, no drug-induced recall of past events which the subject is otherwise unable to recall is any more reliable than the procedure for inducing recall. Here both psychiatrists testified that sodium amytal d .....

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ews nor the expert testimony relating to the same were given any weightage. The facts were that three individuals, namely Solomon, Wesley and George (a minor at the time of the crime) were accused of having committed robbery and murder by arson. After their arrest, they had changed their statements about the events relating to the alleged offences. Subsequently, Wesley gave his consent for a sodium amytal induced interview and the same was administered by a psychiatrist named Dr. Montgomery. The .....

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dence before it. Solomon and Wesley had contended that the trial court should have excluded the testimony given by 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 be .....

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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 refreshed by hypnosis are admissible, with the fact of hypnosis relevant to credibility only [United States v. Adams, 581 F.2d 193, 198-199 (9th Cir. 1978) ...], cert. denied. We have caut .....

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effects of sodium amytal as well as the statements made during his own drug- induced interview. The intent was to rehabilitate Wesley's credibility after the prosecution had impeached it with an earlier confession. The trial court had held that even though narcoanalysis was not reliable enough to admit into evidence, Dr. Montgomery could testify about the statements made to him by Wesley, however without an explanation of the circumstances. On this issue, the Ninth Circuit Court referred to .....

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stated, 753 F.2d 1522, at p. 1526: "Dr. Montgomery testified also that narcoanalysis is useful as a source of information that can be valuable if verified through other sources. At one point he testified that it would elicit an accurate statement of subjective memory, but later said that the subject could fabricate memories. He refused to agree that the subject would be more likely to tell the truth under narcoanalysis than if not so treated. Wesley wanted to use the psychiatric testimony .....

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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 ho .....

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ascertain the extent to which the reliability of such procedures has attained general acceptance within the relevant scientific community." (Id. at p. 1344) Furthermore, the expert witnesses who had appeared at the trial had given conflicting accounts about the utility of a sodium-amytal induced interview for ascertaining the mental state of a subject with regard to past events. It was stated, Id. at p. 1348: "On the two occasions that this Court has considered the questions, we have c .....

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y sodium amytal as unreliable to ascertain truth. Thus, the trial court's ruling excluding Dr. Sadoff's testimony in the guilt phase was consistent with our precedents, with the weight of authority throughout the country, and also with contemporary scientific knowledge as reflected by the expert testimony." (internal citations omitted) 61. Since a person subjected to the narcoanalysis technique is in a half-conscious state and loses awareness of time and place, this condition can be .....

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questioned by a police officer who had training in the use of hypnotic methods. During the deliberate interruptions in the interrogation sessions, the boy had fallen into a mild hypnotic state and had eventually confessed to the commission of the murder. He later repeated the admissions before the investigating officers and signed 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 .....

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e 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 .....

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admissible. It was also held that the rule in Ibrahim v. R (supra.) that a statement must be induced by fear of prejudice' or hope of advantage' in order to be considered involuntary was not a comprehensive test. The word voluntary' should be given its ordinary and natural meaning so that the circumstances which existed in the present case could also be described as those which resulted in involuntary statements. 64. In a concurring opinion, Beetz., J. drew a comparison between state .....

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violence in the case at bar. There is not even any evidence of bodily contact between Horvath and Sergeant Proke, but through the use of an interrogation technique involving certain physical elements such as a hypnotic quality of voice and manner, a police officer has gained unconsented access to what in a human being is of the utmost privacy, the privacy of his own mind. As I have already indicated, it is my view that this was a form of violence or intrusion of a moral or mental nature, more su .....

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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), .....

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nd that such hypnotically-refreshed testimony was the only defence available to the defendant in the circumstances. In such circumstances, it would of course be open to the prosecution to contest the reliability of the testimony given during the trial stage by showing that it had been bolstered by the statements made during hypnosis. It may be recalled that a similar line of reasoning had been adopted in United States v. Solomon, 753 F. 2d 1522 (9th Circ. 1985), where for the purpose of admissib .....

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estion is the Brain Electrical Activation Profile test', also known as the P300 Waves test'. It is a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring event-related potentials' (ERP) i.e. electrical wave forms emitted by the brain after it has absorbed an external event. An ERP measurement is the recognition of specif .....

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70 University of Missouri at Kansas City Law Review 891-920 (Summer 2002) at p. 893] 68. By the late 19th century it had been established that the brain functioned by emitting electrical impulses and the technology to measure them was developed in the form of the electroencephalograph (EEG) which is now commonly used in the medical field. Brain wave patterns observed through an EEG scan are fairly crude and may reflect a variety of unrelated brain activity functions. It was only with the develo .....

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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& .....

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will be duly recorded by the instruments. By examining the records of these wave components the examiner can make inferences about the individual's familiarity with the information related to the crime. [Refer: Laboratory Procedure Manual - Brain Electrical Activation Profile (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi - 2005)] 70. The P300 wave test was the precursor to other neuroscientific techniques such as Brain Fingerprinting' develop .....

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itial P300 stimulus has occurred. This extended response bears a correlation with the cognitive processing that takes place slightly beyond the P300 wave and continues in the range of 300-800 milliseconds after the exposure to the stimulus. This extended brain wave component has been named as the MERMER (Memory-and- Encoding-Related-Multifaceted-Electroencephalographic Response) effect. [See generally: Lawrence A. Farwell, Brain Fingerprinting: A new paradigm in criminal investigations and count .....

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f counter-terrorism and intelligence operations, but it prompts the same legal questions that can be raised 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 .....

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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 concerns for surveying customer preferences and developing targeted advertising schemes. They could also be used to judge mental skills in the educational and employment-related settings since cognitive .....

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, in Judy Illes (ed.), Neuroethics - Defining the issues in theory, practice and policy (Oxford University Press, 2005) at pp. 245-263] 73. Even though the P300 Wave component has been the subject of considerable research, its uses in the criminal justice system have not received much scholarly attention. Dr. Lawrence Farwell's Brain Fingerprinting' technique has attracted considerable publicity but has not been the subject of any rigorous independent study. Besides this preliminary doub .....

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ation. For example, in the aftermath of crimes that receive considerable media-attention the subject can be exposed to the test stimuli in many ways. Such exposure could occur by way of reading about the crime in newspapers or magazines, watching television, listening to the radio or by word of mouth. A possibility of prior exposure to the stimuli may also arise if the investigators unintentionally reveal crucial facts about the crime to the subject before conducting the test. The subject could .....

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elated 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 neurol .....

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same had allegedly been committed in the course of an attempted robbery. A crucial component of the incriminating materials was the testimony of his accomplice. However, many years later it emerged that the accomplice's testimony was prompted by an offer of leniency from the investigating police and doubts were raised about the credibility of other witnesses as well. Subsequently it was learnt that at the time of the trial, the police had not shared with the defence some investigative repor .....

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cantation by the prosecution's primary witness, the past suppression of police investigative reports which implicated another suspect and the results of the Brain Fingerprinting' tests. However, the District Court denied this application for post-conviction relief. This was followed by an appeal before the Supreme Court of Iowa. 76. The appellate court concluded that Harrington's appeal was timely and his action was not time barred. The appellant was granted relief in light of a due .....

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in Fingerprinting' test and did not even inquire into their relevance or reliability. In fact it was stated: "Because the scientific testing evidence is not necessary to a resolution of this appeal, we give it no further consideration." [659 N.W.2d 509, at p. 516] 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 appli .....

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aining 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 and analyzed in numerous .....

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h a brain fingerprinting test result was raised as error and discussed by the Iowa Supreme Court ( a novel computer-based brain testing'). However, while the lower court in Iowa appears to have admitted the evidence under non-Daubert circumstances, the test did not ultimately factor into the Iowa Supreme Court's published decision in any way." Accordingly, the following conclusion was stated, Id. at p. 836: "18. Therefore, based upon the evidence presented, we find the Brain Fi .....

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cedure manuals, the impugned tests are being conducted at the direction of jurisdictional courts even without obtaining the consent of the intended test subjects. In most cases these tests are conducted conjunctively wherein the veracity of the information revealed through narcoanalysis is subsequently tested through a polygraph examination or the BEAP test. In some cases the investigators could first want to ascertain the capacity of the subject to deceive (through polygraph examination) or his .....

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rson 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 sett .....

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swers to these questions rest on the permissibility of subjecting individuals to these tests without their consent. I. Whether the involuntary administration of the impugned techniques violates the right against self- incrimination' enumerated in Article 20(3) of the Constitution? 80. Investigators could seek reliance on the impugned tests to extract information from a person who is suspected or accused of having committed a crime. Alternatively these tests could be conducted on witnesses to .....

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h the rule against double-jeopardy' and the rule against retrospective criminalisation' enumerated in Article 20, it is one of the fundamental protections that controls interactions between individuals and the criminal justice system. Article 20(3) reads as follows: "No person accused of any offence shall be compelled to be a witness against himself." 81. The interrelationship between the right against self- incrimination' and the right to fair trial' has been recognise .....

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t). In the International Covenant on Civil and Political Rights (ICCPR), Article 14(3)(g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. In the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that Everybody charged with .....

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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, 19 .....

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s conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order." 83. Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it w .....

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empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens' cooperation during the course of investigation, they cannot override the constitutional protections .....

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incrimination, there is also a rule against adverse inferences 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, Pr .....

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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' 85. The right of refusal to answer questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the right to fair trial'. There are competing versions about the .....

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dant was required to answer all questions posed by the judges and prosecutors during the trial and the failure to do so would attract punishments that often involved physical torture. It was the resistance to this practice of compelling the accused to speak which led to demands for a right to silence'. 86. In an academic commentary, Leonard Levy (1969) had pointed out that the doctrinal origins of the right against self- incrimination could be traced back to the Latin maxim Nemo tenetur seip .....

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hamber and the High Commissions. Most scholarship has focussed on the sedition trial of John Lilburne (a vocal critic of Charles I, the then monarch) in 1637, when he refused to answer questions put to him on the ground that he had not been informed of the contents of the written complaint against him. John Lilburne went on to vehemently oppose the use of ex-officio oaths, and the Parliament of the time relented by abolishing the Star Chamber and the High Commission in 1641. This event is regard .....

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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 tria .....

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their own defence in criminal proceedings continued for a long time thereafter. The Star Chamber and the High Commissions had mostly tried cases involving religious non-conformists and political dissenters, thereby attracting considerable criticism. Even after their abolition, the defendants in criminal courts did not have the right to be represented by a lawyer ( right to counsel') or the right to request the presence of defence witnesses ( right of compulsory process'). Hence, defendan .....

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viction. With the passage of time, the right of a criminal defendant to be represented by a lawyer eventually emerged in the common law tradition. A watershed in this regard was the Treason Act of 1696 which provided for a right to counsel' as well as compulsory process' in cases involving offences such as treason. Gradually, the right to be defended by a counsel was extended to more offences, but the role of the counsel was limited in the early years. For instance defence lawyers could .....

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l procedure of the ecclesiastical courts and had thus been followed in other courts as well. The obvious problem with compelling the accused to testify on his own behalf is that an ordinary person lacks the legal training to effectively 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 impor .....

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ilt 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 segregation between the testimonial and defensive functions is now accepted as .....

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ogation might be used as evidence against him during the trial stage. 90. The judgment in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, at pp. 438-439, referred to the following extract from a decision of the US Supreme Court in Brown v. Walker, 161 US 591 (1896), which had later been approvingly cited by Warren, C.J. in Miranda v. Arizona, 384 US 436 (1966): "The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of in .....

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pparent connection with a crime under investigation, the case with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand fo .....

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o 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 ensurin .....

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trial and the subsequent verdict. Therefore, the purpose of the rule against involuntary confessions' is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts. 92. The concerns about the voluntariness' of .....

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right against self-incrimination' is a vital safeguard against torture and other third-degree methods' that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such short-cuts' will compromise the diligence required for conducting .....

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agreed among those who have devoted serious thought to these problems that few things could be more harmful to the detection of crime or conviction of the real culprit, few things more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigatio .....

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o 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 a .....

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stem of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state- individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contests with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private .....

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his is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable dou .....

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g run, that investigation 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 .....

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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 considered as evidence during trial but there was no prohibition against relying on statements made involuntarily during investigation. Wigmore argued that the privilege against self-incrimination should be viewed as a right that was confined to the trial stage, since the judge can inter .....

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hil Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven: Yale University Press, 1997) at pp. 65-70; Mike Redmayne, Re-thinking the Privilege against Self- incrimination', 27 Oxford Journal of Legal Studies 209-232 (Summer 2007)] It is argued that in aiming to create a fair state-individual balance in criminal cases, the task of the investigators and prosecutors is made unduly difficult by allowing the accused to remain silent. If the overall intent of the criminal .....

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hat when investigators are under pressure to deliver results there is an inadvertent tendency to rely on methods involving coercion, threats, inducement or deception in spite of the legal prohibitions against them. Questions have also been raised about conceptual inconsistencies in the way that courts have expanded the scope of this right. One such objection is that if the legal system is obliged to respect the mental privacy of individuals, then why is there no prohibition against compelled tes .....

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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 .....

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requirement of due process for a trial in the state courthouse." I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject? 99. The respondents have submitted that the compulsory administration of the impugned tests will only be sought to boost investigation efforts and that the test results by themselves will not be admissible as evidence. The next prong of this position is that if the test results enable the investigators to disco .....

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of the words accused of any offence' in Article 20(3) - i.e. whether the protection is available only to persons who are formally accused in criminal cases, or does it extend to include suspects and witnesses as well as those who apprehend incrimination in cases other than the one being investigated? Thirdly, we must evaluate the evidentiary value of independent materials that are subsequently discovered with the help of the test results. In light of the theory of confirmation by subsequent .....

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r Article 20(3) should be narrowly construed as a trial right or a broad protection that extends to the stage of investigation has been conclusively answered by our Courts. In M.P. Sharma v. Satish 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- .....

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ttitude 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 witness' is not merely in respect of testimonial compulsion in the court room but may well extend .....

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the minority opinion, Das Gupta, J. affirmed the same position, Id. at p. 40: "If the protection was intended to be confined to being a witness in Court then really it would have been an idle protection. It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do proved in court through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. T .....

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pression to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Article 20(3).This is precisely what Section 161(2) means. That sub-section relates to oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and the Code are coterminus in the protective area. While the code may be changed, the Constitution is more enduring. Therefore, we have .....

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lf- 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 .....

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tice promoted by this case is that it is only after a person has knowingly and intelligently' waived of these rights after receiving a warning that the statements made thereafter can be admitted as evidence. The safeguards were prescribed in the following manner, Id. at pp. 444-445: "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure .....

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y questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can b .....

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a suspect in a custodial environment. This was done in recognition of the fact that methods involving deception and psychological pressure were routinely used and often encouraged in police interrogations. Emphasis was placed on the ability of the person being questioned to fully comprehend and understand the content of the stipulated warning. It was held, Id. at pp. 457-458: "In these cases, we might not find the defendant's statements to have been involuntary in traditional terms. Our .....

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ntimidation, 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 .....

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we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain .....

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also to have counsel present during any questioning if the defendant so desires." 106. The majority decision in Miranda (supra.) was not a sudden development in U.S. constitutional law. The scope of the privilege against self-incrimination had been progressively expanded in several prior decisions. The notable feature was the recognition of the interrelationship between the Fifth Amendment and the Fourteenth Amendment's guarantee that the government must observe the due process of law& .....

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is a presumption of compulsion 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 .....

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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 supposed to be acquainted with the facts and circumstances of the case' in the course of examination by the police. The language of this provision is as follows: 161. Examination of witnesses by police. (1) Any police officer making an investigation under this Chapter, or .....

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rfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. 109. Therefore the right against self-incrimination' protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers co .....

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construction, if applicable to Article 20(3), approximates the constitutional clause to the explicit statement of the prohibition in Section 161(2). This latter provision meaningfully uses the expression expose himself to a criminal charge'. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him to criminal charges." It was further observed, Id. at pp. 451-452 (Para. 50): " To be a wi .....

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ctive 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 pr .....

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Section 132 of the Evidence Act reads:- "132. Witness not excused from answering on ground that answer will criminate. - A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a pe .....

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at are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings. In administrative and quasi-criminal proceedings, the protection of Article 20(3) becomes available only afte .....

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at p. 438: "The scheme of the relevant sections is that the investigation begins broadly with a view to examine the management of the affairs of the company to find out whether any irregularities have been committed 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 .....

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2. 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 Magistrate competent to try or send to another Magistrate for trial of the offence. Where a .....

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laint is lodged by an officer competent in that behalf before the Magistrate." 113. In Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600, one of the contentious issues was whether the statements recorded by a Railway Police Force (RPF) officer during an inquiry under the Railway Property (Unlawful Possession) Act, 1996 would attract the protection of Article 20(3). Sarkaria, J. held that such an inquiry was substantially different from an investigation contemplated under the .....

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ordinarily results in his prosecution in court. In the instant case no such formal accusation has been made against the appellant when his statements in question were recorded by the RPF Officer." What constitutes incrimination' for the purpose of Article 20(3)? 114. We can now examine the various circumstances that could expose a person to criminal charges'. The scenario under consideration is one where a person in custody is compelled to reveal information which aids the investig .....

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ishing 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 ar .....

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clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Article 20(3) if elicited by pressure from the mouth of the accused. An answer acquires confessional status only if, in terms or substantially, all the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3) strikes at confessions and self- incriminations but leaves untouched .....

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r a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. [...] But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. [...]" (internal citations omitted) "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to .....

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sional per se nor guilty in tendency but merely relevant facts which, viewed in any setting, does not have a sinister import. To spread the net so wide is to make a mockery of the examination of the suspect, so necessitous in the search for truth. Overbreadth undermines, and we demur to such morbid exaggeration of a wholesome protection. ... In Kathi Kalu Oghad's case, this Court authoritatively observed, on the bounds between constitutional proscription and testimonial permission: In order .....

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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 t .....

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be unreliable unless they have been subjected to cross- examination or judicial scrutiny. The scheme created by the Code of Criminal Procedure and the Indian Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a judicial magistrate which can be given weightage. The doctrine of excluding the fruits of a poisonous tree' has been incorporated in Sections 24, 25 and 26 of the India .....

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grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 25. Confession to police officer not proved. - No confession made to a police officer shall be proved as against a person accused of any offence. 26. Confession by accused while in custody of police not to be proved against him. - No confession made by any person whilst he is in the custody of a police offi .....

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r, 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 .....

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ivative 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 compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). The re .....

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It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of cl. (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of s. 27 of the Evidence Act are not within the prohibition aforesaid, unl .....

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ent which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it." 121. The minority opinion also agreed with the majority's conclusion on this point since Das Gupta, J., held at p. 47: "Section 27 provides that when any fact is deposed to as discovered in conseque .....

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s; 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 infr .....

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in due course. Taking this reasoning forward, it was held that the compulsory administration of the impugned tests should be permissible since the same does not necessarily lead to the extraction of inculpatory evidence. We are unable to agree with this reasoning. 123. The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage. The exclusionary rule in evidence law mandates that i .....

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ment on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the right against self-incrimination' will be rendered meaningless. The law confers on any person' who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. F .....

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t direct use entails that a witness will not be prosecuted on the basis of the statements made to the investigators. A protection against derivative use implies that a person will 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 .....

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liance 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 concealing crucial details. Such situations could very well arise when a person who is a co- accused is offered immunity from pr .....

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the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b) of Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented b .....

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police or by the Court." 127. The 180th Report of the Law Commission of India (May 2002) dealt with this very issue. It considered arguments for diluting the rule against adverse inferences from silence'. Apart from surveying several foreign statutes and decisions, the report took note of the fact that Section 342(2) of the erstwhile Code of Criminal Procedure, 1898 permitted the trial judge to draw an inference from the silence of the accused. However, this position was changed with t .....

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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 .....

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se tests could face the risk of custodial violence, increased police surveillance or harassment thereafter. Even a person who is compelled to undergo these tests could face such adverse consequences on account of the contents of the test results if they heighten the investigators' suspicions. Each of these consequences, though condemnable, fall short of the requisite standard of exposure to criminal charges and penalties' that has been enumerated in Section 161(2) of the CrPC. Even thoug .....

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ecided that practices such as solitary confinement' and the use of bar- fetters in jails were violative of Article 21. Hence, in circumstances where persons who refuse to answer questions during the investigative stage are exposed to adverse consequences of a non-penal nature, the inquiry should account for the expansive scope of Article 21 rather than the right contemplated by Article 20(3). I-B. Whether the results derived from the impugned techniques amount to testimonial compulsion' .....

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nature, some forms of testimonial acts lie outside the scope of Article 20(3). For instance, even though acts such as compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration with facts or materials that the investigators are already acquainted with. The relevant consideration for extending the protection of Article 20(3) is whether the materials are .....

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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 administra .....

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al answers such as Yes' or No', but the results are based on the measurement of changes in several physiological characteristics rather than these verbal responses. In the BEAP test, the subject is not required to give any verbal responses at all and inferences are drawn from the measurement of electrical activity in the brain. In the impugned judgments, it has been held that the results obtained from both the Polygraph examination and the BEAP test do not amount to testimony' thereb .....

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stigation into the affairs of a company (following allegations of misappropriation and embezzlement) amounted to an infringement of Article 20(3). The search warrants issued under Section 96 of the erstwhile Code of Criminal Procedure, 1898 authorised the investigating agencies to search the premises and seize the documents maintained by the said company. The relevant observations were made by Jagannadhadas, J., at pp. 1087-1088: "The phrase used in Article 20(3) is to be a witness'. A .....

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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 d .....

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pressions of an accused person for purposes of comparison. Sections 5 and 6 of the Identification of Prisoners Act empowered a Magistrate to obtain the photograph or measurements of an accused person. In respect of Section 27 of the Evidence Act, there was an agreement between the majority and the minority opinions that the use of compulsion to extract custodial statements amounts to an exception to the theory of confirmation by subsequent facts'. We have already referred to the relevant obs .....

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ng evidence' in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. Furnishing evidence' in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that - though they may have intended to protect an accused .....

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of law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution- makers were aware of the existing law, for example, Section 73 of the Evidence Act or Section 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920). The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not to be a witness'. To be a witness' means imparting knowledge in respect of relevant fact, by mea .....

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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 t .....

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r which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a .....

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not included within the expression to be a witness'. In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person atleast probable, considered by itself .....

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which is outside the limit of testimony'." 134. Hence, B.P. Sinha, C.J. construed the expression to be a witness' 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 .....

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pretation. 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, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, .....

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ys associated with evidence, so that to say that to be a witness' is to furnish evidence' is really to keep to the natural meaning of the words. It is clear from the scheme of the various provisions, dealing with the matter that the governing idea is that to be evidence, the oral statement or a statement contained in a document, shall have a tendency to prove a fact - whether it be a fact in issue or a relevant fact - which is sought to be proved. Though this definition of evidence is in .....

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as the production of documents which though not containing his own knowledge would have a tendency to make probable the existence of a fact in issue or a relevant fact." 135. Even though Das Gupta, J. saw no difference between the scope of the expressions to be a witness' and to furnish evidence', the learned judge agreed with the majority's conclusion that for the purpose of invoking Article 20(3) the evidence must be incriminating by itself. This entailed that evidence could b .....

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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 prosecuto .....

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with the conclusion reached by the majority of the Bench that there is no infringement of Art. 20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of s. 73 of the Indian Evidence Act; though we have not been able to agree with the view of our learned brethren that to be a witness' in Art. 2 .....

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or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to personal testimony' thereby coming within the prohibition contemplated by Article 20(3). In most cases, such personal testimony' can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparis .....

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iscover fresh facts or materials that could be relevant to the ongoing investigation. 137. The recognition of the distinction between testimonial acts and physical evidence for the purpose of invoking Article 20(3) of the Constitution finds a close parallel in some foreign decisions. In Armando Schmerber 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 treatmen .....

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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 to ex .....

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stand, to assume a stance, to walk, or to make a particular gesture.' However, it was cautioned that the privilege applied to testimonial communications, irrespective of what form they might take. Hence it was recognised that the privilege not only extended to verbal communications, but also to written words as well as gestures intended to communicate [for, e.g., pointing or nodding]. This line of thinking becomes clear because the majority opinion indicated that the distinction between tes .....

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dy function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege is as broad as the mischief against which it seeks to guard.' []&quo .....

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gical 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 .....

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ek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence ... The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to t .....

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as the introduction of provisions for medical examination with the overhauling of the Code of Criminal Procedure in 1973. Sections 53 and 54 of the CrPC contemplate the medical examination of a person who has been arrested, either at the instance of the investigating officer or even the arrested person himself. The same can also be done at the direction of the jurisdictional court. 141. However, there were no provisions for authorising such a medical examination in the erstwhile Code of Criminal .....

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sed there is no knowing where such procedure would stop. Any such examination without the consent of the accused would amount to an assault and I am quite satisfied that the police are not entitled without statutory authority to commit assaults upon prisoners for the purpose of procuring evidence against them. If the legislature desires that evidence of this kind should be given, it will be quite simple to add a short section to the Code of Criminal Procedure expressly giving power to order such .....

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lled 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 wh .....

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ticle 20(3) to testimony - written or oral. [Fn ...] The Supreme Court's judgment in Kathi Kalu should be taken as overruling the view taken in some earlier decisions, [Fn 6, 7 ] invalidating provisions similar to Section 5, Identification of Prisoners Act, 1920. The position in the U.S.A. has been summarised [Fn 8 - Emerson G., Due Process and the American Criminal Trial', 33 Australian Law Journal 223, 231 (1964)] Less certain is the protection accorded to the defendant with regard to .....

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n of the contents of his intestines? The literature on this aspect of self- incrimination is voluminous. [Fn ...] The short and reasonably accurate answer to the question posed is that almost all such physical acts can be required. [Fn ...] Influenced by the historical development of the doctrine, its purpose, and the need to balance the conflicting interests of the individual and society, the courts have generally restricted the protection of the Fifth Amendment to situations where the defendan .....

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al examination during the course of investigation, irrespective of the subject's consent. [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 re .....

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ivorce 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 was no ordinary statutory basis for the same. It was observed, Id. at p. 508: "Yet again the primary duty of a court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is no .....

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y. In certain cases medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so. In matrimonial disputes, the court also has a conciliatory role to play - even for the said purpose it may .....

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nvestigators and courts to compel the production of DNA samples has been approved by the Orissa High Court in Thogorani v. State of Orissa, 2004 Cri L J 4003 (Ori). 145. At this juncture, it should be noted that the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination, especially with regard to the extraction of bodily substances. The amended provision reads: 53. Examination of accused by medical practitio .....

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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) exami .....

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edical Council Act , 1956 (102 of 1956) and whose name has been entered in a State Medical Register. (emphasis supplied) 146. The respondents have urged that the impugned techniques should be read into the relevant provisions - i.e. Sections 53 and 54 of CrPC. As described earlier, a medical examination of an arrested person can be directed during the course of an investigation, either at the instance of the investigating officer or the arrested person. It has also been clarified that it is with .....

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and the examiners to resort to a reasonable degree of physical force for conducting the same. 147. The contentious provision is the Explanation to Sections 53, 53-A and 54 of the CrPC (amended in 2005) which has been reproduced above. It has been contended that the phrase modern and scientific techniques including DNA profiling and such other tests' should be liberally construed to include the impugned techniques. It was argued that even though the narcoanalysis technique, polygraph examinat .....

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their use can be governed by older statutes which had been framed to regulate the older technologies used for similar purposes. 148. On the other hand, the counsel for the appellants have contended that the Parliament was well aware of the impugned 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 physic .....

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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 purpose of invoking the right against self-incrimination. T .....

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f the CrPC does not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination among others. This demonstrates that the amendment to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts. 150. However, the submissions touching on the legislative intent require some reflection. While it is most likely that the Parliament was well aware of the impugned techniques at the time .....

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ments about the interpretation of statutes with regard to scientific advancements. To address this aspect, we can refer to some extracts from a leading commentary on the interpretation of statutes [See: Justice G.P. Singh, Principles of Statutory Interpretation, 10th edn. (New Delhi: Wadhwa & Co. Nagpur, 2006) at pp. 239-247]. The learned author has noted, at pp. 240-241: "Reference to the circumstances existing at the time of the passing of the statute does not, therefore, mean that th .....

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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 .....

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e cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the ext .....

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or which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?' attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself." (internal citations omitted) 151. The learned author has further taken note .....

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within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern society which is fast moving must be presumed to be aware of an enlarged meaning the .....

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ctions 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 t .....

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al examination' under the Code of Criminal Procedure, 1973. 153. However, it must be borne in mind that even though the impugned techniques have not been expressly enumerated in the CrPC, there is no statutory prohibition against them either. It is a clear case of silence in the law. Furthermore, in circumstances where an individual consents to undergo these tests, there is no dilution of Article 20(3). In the past, the meaning and scope of the term investigation' has been held to includ .....

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rein it was held that a blood sample can be compulsorily extracted during a medical examination' conducted under Section 53 of the CrPC. At that time, the collection of blood samples was not expressly contemplated in the said provision. Nevertheless, the Court had ruled that the phrase examination of a person' should be read liberally so as to include an examination of what is externally visible on a body as well as the examination of an organ inside the body. [See p. 1689, Para 13] 154. .....

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keeping in mind that 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 techniq .....

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numerates 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 treatment of punishment'. Emphasis was placed on Principle 4 which reads: Principle 4 It is a contravention of medical ethics for health personnel, particularly physicians: To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a mann .....

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e statutory provisions for directing a medical examination are an example of the same. Fields such as forensic toxicology have become important in criminal- justice systems all over the world and doctors are frequently called on to examine bodily substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses of medical expertise is the fact that testimonial .....

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cope of Article 20(3) read with Section 161(2), CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form ca .....

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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 t .....

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ence and thereby excluded from the protective scope of Article 20(3). We must refer back to the substance of the decision in Kathi Kalu Oghad (supra.) which equated a testimonial act with the imparting of knowledge by a person who has personal knowledge of the facts that are in issue. It has been recognised in other decisions that such personal knowledge about relevant facts can also be communicated through means other than oral or written statements. For example in M.P. Sharma's case (supra .....

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in of evidence needed for prosecution. 159. We must also highlight that there is nothing to show that the learned judges in Kathi Kalu Oghad (supra.) had contemplated the impugned techniques while discussing the scope of the phrase to be a witness' for the purpose of Article 20(3). At that time, the transmission of knowledge through means other than speech or writing was not something that could have been easily conceived of. Techniques such as polygraph examination were fairly obscure and w .....

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;To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and 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 d .....

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ificant 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 extraction of personal knowledge' through such means. 161. During the administration of a polyg .....

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g silent and offering substantive information. The requirement of a positive volitional act' becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition. 162. Some academics have also argued that the results obtained from tests such as polygraph examination are testimonial' acts that should come within the prohibition of the right against self-incrimination. For instance, Michael S. Pardo (2008) has observed [Cited from: Michael S. .....

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imself to be an authority, or (2) what propositions the defendant would assume authority for and would invite reliance upon, were he to testify truthfully." 163. Ronald J. Allen and M. Kristin Mace (2004) have offered a theory that the right against self-incrimination is meant to protect an individual in a situation where the State places reliance on the substantive results of cognition'. The following definition of cognition' has been articulated to explain this position [Cited fro .....

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al 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 r .....

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R 1954 SC 300, the Supreme Court included within the protection of the self- incrimination rule all positive volitional acts which furnish evidence. This by itself would have made all or any interrogation impossible. The test - as stated in Kathi Kalu Oghad (AIR 1961 SC 1808) - retains the requirement of personal volition and states that self- incrimination' must mean conveying information based upon the personal knowledge of the person giving information. By either test, the information sou .....

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d tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of testimonial compulsion', thereby attracting the protective shield of Article 20(3). II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on personal liberty' as understood in the context of Article 21 of the Constitution? 166. The preceding discussion does not conclusively address the contentions before us. Article 20(3) protects a pers .....

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ich may result in civil liability. It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others. 167. In order to account for these possibilities, we must examine whether the involuntary administration of any of these test .....

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fe 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 .....

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l liberty'. 169. There are several ways in which the involuntary administration of either of the impugned tests could be viewed as a restraint on personal liberty'. The most obvious indicator of restraint is the use of physical force to ensure that an unwilling person is confined to the premises where the tests are to be conducted. Furthermore, the drug-induced revelations or the substantive inferences drawn from the measurement of the subject's physiological responses can be describ .....

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ubsequently exposed to harmful consequences, though not of a penal nature. We have already expressed our concern with situations where the contents of the test results could prompt investigators to engage in custodial abuse, surveillance or undue harassment. We have also been apprised of some instances where the investigation agencies have leaked the video-recordings of narcoanalysis interviews to media organisations. This is an especially worrisome practice since the public distribution of thes .....

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ice 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 .....

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esponses, the comparison can be sustained to examine whether puncturing the skin with a needle or an injection is an unreasonable restraint on personal liberty'. 173. The decision given by the U.S. Supreme Court in Rochin v. California, 342 US 165 (1952), recognised the threshold of conduct that shocks the conscience' for deciding when the extraction of physical evidence offends the guarantee of due process of law'. With regard to the facts in that case, Felix Frankfurter, J. had dec .....

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contents - this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerce .....

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stitutionality of Section 129-A of the Bombay Prohibition Act, 1949. This provision empowered prohibition officers and police personnel to produce a person for medical examination', which could include the collection of a blood sample. The said provision authorised the use of all means reasonably necessary to secure the production of such person or the examination of his body or the collection of blood necessary for the test'. Evidently, the intent behind this provision was to enforce th .....

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olate 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 .....

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itary service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors. Likewise, we note that a majority of our States have either enacted statutes in some form authorizing tests of this nature or permit findings so obtained to be admitted in evidence. We therefore conclude that a blood test taken by a skilled technician is no .....

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r shocking to the conscience in taking the blood of the appellant in the instant case in order to establish his guilt. So far as the question of causing hurt is concerned, even causing of some pain may technically amount to hurt as defined by Section 319 of the Indian Penal Code. But pain might be caused even if the accused is subjected to a forcible medical examination. For example, in cases of rape it may be necessary to examine the private parts of the culprit. If a culprit is suspected to ha .....

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easonably necessary for that purpose may be used. Therefore, whatever discomfort that may be caused when samples of blood and semen are taken from 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 t .....

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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 the course of administering the impugned techniques are not limited to physical confinement and the extraction of bodily substances. All the three techniqu .....

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ht to privacy, the right against cruel, inhuman or degrading treatment and the right to fair trial. Applicability of the right to privacy' 177. In Sharda v. Dharampal, (supra.) this Court had upheld the power of a civil court to order the medical examination of a party to a divorce proceeding. In that case, the medical examination was considered necessary for ascertaining the mental condition of one of the parties and it was held that a civil court could direct the same in the exercise of it .....

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appropriate to structure the present discussion around extracts from that opinion. 178. In M.P. Sharma (supra.), it had been noted that the Indian Constitution did not explicitly include a right to privacy' in a manner akin to the Fourth Amendment of the U.S. Constitution. In that case, this distinction was one of the reasons for upholding the validity of search warrants issued for documents required to investigate charges of misappropriation and embezzlement. Similar issues were discussed .....

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hese 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 ascert .....

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rrelationship between Article 21 and 19, thereby requiring the State to demonstrate the reasonableness' of placing such restrictions on personal liberty' [This approach was later endorsed by Bhagwati, J. in Maneka Gandhi v. Union of India, AIR 1978 SC 597, see p. 622]. Subba Rao, J. held that the right to privacy is an essential ingredient of personal liberty' and that the right to personal liberty is a right of an individual to be free from restrictions or encroachments on his perso .....

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Para. 28: "The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute." Assuming that the fundamental right explicitly guaranteed to a .....

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e a convict intended to publish his autobiography which described the involvement of some politicians and businessmen in illegal activities. Since the publication of this work was challenged on grounds such as the invasion of privacy among others, the Court ruled on the said issue. It was held that the right to privacy could 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 e .....

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IR 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. Thi .....

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was ruled that in respect of HIV-positive persons, the duty of confidentiality between the doctor and patient could be compromised in order to protect the health of other individuals. With respect to the facts in that case, Saghir Ahmad, J. held, at Para. 26-28: "When a patient was found to be HIV (+), its disclosure by the Doctor could not be violative of either the rule of confidentiality or the patient's right of privacy as the lady with whom the patient was likely to be married was .....

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efines the offence of a Negligent act likely to spread infection of disease dangerous to life' and Section 270 contemplates a Malignant act likely to spread infection of disease dangerous to life'.] A similar question was addressed by the Andhra Pradesh High Court in M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd., AIR 2001 AP 502, at pp. 513- 514: "There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himsel .....

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e 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 ha .....

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respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for th .....

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n convicted for them. The statutory basis for the retention of physical samples taken from suspects was Section 64(1A) of the Police and Criminal Evidence Act, 1984. This provision also laid down that these samples could only be used for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution'. This section had been amended to alter the older position which provided that physical samples taken from suspects were meant to be de .....

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although the retention of such material interfered with the Art. 8(1) rights of the individuals ( right to respect for private and family life') from whom it had been taken, that interference was justified by Art. 8(2). It was further reasoned that the purpose of the impugned amendment, the language of which was very similar to Art. 8(2), was obvious and lawful. Nor were the adverse consequences to the individual disproportionate to the benefit to the public. It was held, at Para. 17: " .....

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ty 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, a .....

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ccount the position of the accused, the victim and his or her family, and the public." On the question of whether the retention of material samples collected from suspects who had not been convicted was violative of the Prohibition against Discrimination' under Art. 14 of the EctHR, it was observed, (2003) 1 All ER 148 (CA), at p. 162: "In the present circumstances when an offence is being investigated or is the subject of a charge it is accepted that fingerprints and samples may b .....

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en the compulsory administration of the impugned techniques with the DNA profiling technique. In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53-A and 54 of the CrPC. It must also be clarified that a DNA profile' is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DN .....

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ch as fingerprints for the purpose of comparison and identification does not amount to a testimonial act 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 .....

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iament 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 connection may also be made to Sections 269 and 270 of the Indian Penal Code. Constitutionality of these laws, if challenge is thrown, may be upheld." 190. However, it is important for us to dis .....

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onial acts and physical evidence, simply because Article 20(3) is not applicable to a proceeding of a civil nature. 191. Moreover, a distinction must be made between the character of restraints placed on the right to privacy. While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forc .....

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y provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person to impart personal knowledge about a relevant fact'. The theory of interrelationship of rights mandates that the 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 in .....

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n 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 stat .....

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amine some other dimensions of Article 21. Safeguarding the right against cruel, inhuman or degrading treatment' 194. We will now examine whether the act of forcibly subjecting a person to any of the impugned techniques constitutes cruel, inhuman or degrading treatment', when considered by itself. This inquiry will account for the permissibility of these techniques in all settings, including those where a person may not be subsequently prosecuted but could face adverse consequences of a .....

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. observed at pp. 518-519: "True, our Constitution has no due process' clause or the VIII Amendment; but, in this branch of law, after Cooper [(1970) 1 SCC 248] and Maneka Gandhi, [(1978) 1 SCC 248] the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down by Article 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part .....

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icle 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanize and civilize the lifestyle within the carcers. The operation of Articles 14, 19 and 21 may be pared down 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 pri .....

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ho 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 laboratory or a hospital would .....

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because we are aware of certain instances where persons are questioned in the course of investigations without being brought on the record as witnesses. Such omissions on part of investigating agencies should not be allowed to become a ground for denying the protections that are available to a person in custody. 196. The appellants have also drawn our attention to some international conventions and declarations. For instance in the Universal Declaration of Human Rights [GA Res. 217 A (III) of De .....

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sent to medical or scientific experimentation." Special emphasis was placed on the definitions of torture' as well as cruel, inhuman or degrading treatment or punishment' in Articles 1 and 16 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. Article 1 1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes .....

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m, 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 o .....

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which relate to extradition or expulsion. 197. We were also alerted to the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment [GA Res. 43/173, 76th plenary meeting, 9 December 1988] which have been adopted by the United Nations General Assembly. Principles 1, 6 and 21 hold relevance for us: Principle 1 All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human per .....

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etained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time. Principle 21 1. It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person. 2. No detained person while being interrogated shall be .....

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, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. 199. Having surveyed these materials, it is necessary to clarify that we are not absolutely bound by the contents of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) [Hereinafter Tor .....

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tion 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 .....

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inflict any pain or suffering. Furthermore, it has been contended that the actual administration of either the narcoanalysis technique, polygraph examination or the BEAP test does not involve a condemnable degree of physical pain or suffering'. Even though some physical force may be used or threats may be given to compel a person to undergo the tests, it was argued that the administration of these tests ordinarily does not result in physical injuries. [See: Linda M. Keller, Is Truth Serum T .....

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n and the BEAP test, the test subject remains fully conscious during the tests but does not immediately know the nature and implications of the results derived from the same. However, when he/she later learns about the contents of the revelations, they may prove to be incriminatory or be in the nature of testimony that can be used to prosecute other individuals. We have also highlighted the likelihood of a person making incriminatory statements when he/she is subsequently confronted with the tes .....

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expressed our concern 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 .....

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g 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 tests, but also includes an examination of the totality of circumstances. 203. Such a possibility had been outlined by the National Human Rights Commission which had published Guidelines relating to administration of Polygraph test (Lie Detector test) on an accused (2000)'. Th .....

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s much as this invasive test is not authorised by law, it must perforce be regarded as illegal and unconstitutional unless it is voluntarily undertaken under non-coercive circumstances. If the police action of conducting a lie detector test is not authorised by law and impermissible, the only basis on which it could be justified is, if it is volunteered. There is a distinction between: (a) volunteering, and (b) being asked to volunteer. This distinction is of some significance in the light of th .....

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e examined whether such volunteering was under coercive circumstances or not. In the second and third examples, the police implicitly (in the second example) and explicitly (in the third example) link up the taking of the lie detector test to allowing the accused to go free." 204. We can also contemplate a possibility that even when an individual freely consents to undergo the tests in question, the resulting testimony cannot be readily characterised as voluntary in nature. This is attribut .....

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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 .....

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nsent. In this respect, we can re- emphasize Principle 6 and 21 of the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment (1988). The explanation to Principle 6 provides that: "The term cruel, inhuman or degrading treatment or punishment' should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, tem .....

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39;. It is also quite evident that all the three impugned techniques can be described as methods of interrogation which impair the test subject's capacity of decision or judgment'. Going by the language of these principles, we hold that the compulsory administration of the impugned techniques constitutes cruel, inhuman or degrading treatment' in the context of Article 21. It must be remembered that the law disapproves of involuntary testimony, irrespective of the nature and degree of .....

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nal Defence in the Age of Terrorism - Torture', 48 New York Law School Law Review 201-274 (2003/2004)] 206. It would also be wrong to sustain a comparison between the forensic uses of these techniques and the practice 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 cu .....

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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 of the impugned techniques should be permitted at least for investigative purposes, and if .....

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of the key components of the right to fair trial'. 208. The decision of this Court in D.K. Basu v. State of West Bengal, AIR 1997 SC 610, had stressed upon the entitlement of a person in custody to consult a lawyer. Access to legal advice is an essential safeguard so that an individual can be adequately apprised of his constitutional and statutory rights. This is also a measure which checks custodial abuses. However, the involuntary administration of any of the impugned tests can lead to a .....

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bject is not immediately aware of the contents of the drug-induced revelations or substantive inferences, it also conceivable that the investigators may chose not to communicate them to the subject even after completing the tests. In fact statements may be recorded or charges framed without the knowledge of the test subject. At the stage of trial, the prosecution is obliged to supply copies of all incriminating materials to the defendant but reliance on the impugned tests could curtail the oppor .....

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alysis 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 f .....

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e inherent limitations such as the subject having had prior exposure' to the probes' which are used as stimuli. Furthermore, this technique has not been the focus of rigorous independent studies. The questionable scientific reliability of these techniques comes into conflict with the standard of proof beyond reasonable doubt' which is an essential feature of criminal trials. 211. Another factor that merits attention is the role of the experts who administer these tests. While the con .....

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invention and development of certain techniques are perceived to have an interest in their promotion. Hence, it is quite likely that such persons may give unduly favourable responses about the reliability of the techniques in question. 212. Even though India does not have a jury system, the use of the impugned techniques could impede the fact-finding role of a trial judge. This is a special concern in our legal system, since the same judge presides over the evidentiary phase of the trial as well .....

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ges are expected to be impartial and objective in their evaluation of evidence, one can never discount the possibility of undue public pressure in some cases, especially when the test results appear to be inculpatory. We have already expressed concerns with situations where media organisations have either circulated the video-recordings of narcoanalysis interviews or broadcasted dramatized re-constructions, especially in sensational criminal cases. 213. Another important consideration is that of .....

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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. L .....

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n offence can be compelled to undergo any of the tests in question. Such a forcible administration would be an unjustified intrusion into mental privacy and could lead to further stigma for the victim. Examining the compelling public interest' 215. The respondents have contended that even if the compulsory administration of the impugned techniques amounts to a seemingly disproportionate intrusion into personal liberty, their investigative use is justifiable since there is a compelling public .....

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among others. It was suggested that if investigators are allowed to rely on these tests, the results could help in uncovering plots, apprehending suspects and preventing armed attacks as well as the commission of offences. Reference was also made to the frequently discussed Ticking Bomb' scenario. This hypothetical situation examines the choices available to investigators when they have reason to believe that the person whom they are interrogating is aware of the location of a bomb. The dil .....

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ve 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 .....

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ghts. 217. Even though the main task of constitutional adjudication is to safeguard the core organising principles of our polity, we must also highlight some practical concerns that strengthen the case against the involuntary administration of the tests in question. Firstly, the claim that the results obtained from these techniques will help in extraordinary situations is questionable. All of the tests in question are those which need to be patiently administered and the forensic psychologist or .....

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mplex process that involves accounting for distortions such as countermeasures' used by the subject and weather conditions among others. In a BEAP test, there is always the possibility of the subject having had prior exposure to the probes' that are used as stimuli. All of this is a gradually unfolding process and it is not appropriate to argue that the test results will always prove to be crucial in times of exigency. It is evident that both the tasks of preparing for these tests and in .....

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r line of reasoning since one form of improper behaviour is sought to be replaced by another. What this will result in is that investigators will increasingly seek reliance on the impugned techniques rather than engaging in a thorough investigation. The widespread use of third-degree' interrogation methods so as to speak is a separate problem and needs to be tackled through long-term solutions such as more emphasis on the protection of human rights during police training, providing adequate .....

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ught 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 .....

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whole population as well as the future generations. Sometimes there are apprehensions about judges imposing their personal sensibilities through broadly worded terms such as substantive due process', but in this case our inquiry has been based on a faithful understanding of principles entrenched in our Constitution. In this context it would be useful to refer to some observations made by the Supreme Court of Israel in Public Committee Against Torture in Israel v. State of Israel, H.C. 5100 / .....

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future. Ruling against such methods, Aharon Barak, J. held at p. 26: "This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law' and recognition of an individual's liberty constitutes an important component in its understanding of security." CONCLUSION 221. In our .....

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sed 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 resul .....

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he 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 expansive interpretation is not feasible in light of the rule of ejusdem generis' and the considerations which govern the interpretation of statutes in relation to sc .....

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justify the dilution of constitutional rights such as the right against self-incrimination'. 223. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provi .....

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