Read below the articles as published in Hindustan Times depicting the SC take on Narco Analysis Test in India. The complete articles have been produced for the Reader’s Benefit. The Post is not depictive of Author’s mind and is purely reflective of “AS IS” basis
The truth, the whole truth…
The Supreme Court’s ruling that non-voluntary narco-analysis and brain-mapping tests violate the Constitution was an observation that was as obvious as it was necessary. Article 20(3) is unequivocal about protecting the individual’s choice to speak or remain silent. Regardless of what they show in the movies about innovative methods of investigation, the rule of the law applies to criminals as well as the lawkeepers. As the SC stated on Wednesday, the need to protect a suspect against coercion is “irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory” — that is, whether it suggests the subject’s guilt or innocence.
There are some, however, who find the ruling to be naïve and defend narco-testing. One, with the test results not admissible in court as evidence anyway, it was always about obtaining ‘leads’ from suspects speaking under the influence of a ‘truth serum’, they say. By this logic, as the SC hints at, ‘third degree methods’ (read: torture) can be equally adept at breaking down a suspect’s resolve to hide the truth. The other point that those who are the pro-narco-testing make is that the ruling should apply to ‘normal’ criminals and a separate provision be made for those suspected of being terrorists or waging war against the State. You don’t have to be a cynic or a human rights-wallah to know that this is going down a very slippery slope where high emotions alone are used to fuel an argument. Once ‘qualitative’ parameters enter the scene, there is little scope of discretion being practised to crack different kinds of crime.
It would be relevant here to point out that the case against involuntary narco-testing was brought to the courts by Santokben Jadeja who has been accused of running a criminal nexus. Thus, the appeal to revoke narco-testing was not from any theoretical ‘rights of man’ quarter but as an argument from a defence counsel. To make distinctions between who falls under the narco-testing net and who doesn’t is to make a distinction between the very notion of investigative methods. And it is here that the ‘scientific’ methodology of narco-testing and brain-scanning fails to stand up to the test. As experts have pointed out, these practices are hardly empirical — the very reason that unlike, say, DNA tests or fingerprinting, they don’t count as evidence. The reaction from some police quarters after the Supreme Court is telling: all narco-tests are conducted, they say, after getting permission from the suspects. Next, we will hear that all confessions in custody are ‘unaided’ confessions. With public opinion not necessarily in support of the court ruling — and especially because it isn’t so — our custodians of law should be doubly vigilant that dodgy short-cuts are not taken to prove the guilt of those accused of a crime. This is not about giving the criminal an advantage; it’s about not blurring the difference between criminals and those who put them away.
Cops can’t force narco tests on suspects: Supreme Court
Investigating agencies can no longer subject a suspect, accused or witness to narco-analysis, brain-mapping or polygraph tests without their consent. In a historic verdict, the Supreme Court on Tuesday declared compulsory use of the tests as illegal as it violates the constitutional provisions of “right against self-incrimination” and “right to privacy”.
“Compulsory administration of these techniques is an unjustified intrusion into the mental privacy of an individual,” said a bench headed by Chief Justice K.G. Balakrishnan. It amounts to “cruel, inhuman or degrading treatment with regard to the language of evolving international human rights norms”.
The court permitted voluntary tests and said agencies could use information from any disclosure to facilitate their probe but couldn’t admit it as evidence. They should conduct tests according to National Human Rights Commission rules on lie-detector tests, it added.
The bench dismissed the plea of various agencies, including the CBI, that such “scientific tests” were a softer alternative to allegedly widely used “third degree methods”. It said: “Invocations of compelling public interest cannot justify the dilution of constitutional rights.” It added that relying on results gathered from these tests would come into conflict with the right to a fair trial.
Though it felt its decision would benefit hardened criminals, the bench said it was extended “for the whole population as well as future generations”.
Jurists hailed the judgment as landmark. “Policemen cannot be allowed to trifle with the liberties and constitutional right of citizens. They don’t want to work but force people to confess. This is a historic judgment that will preserve the human rights of everybody,” said senior advocate Dushyant Dave, who assisted the court in the matter.
Probe agencies have used narco-analysis, brain-mapping and polygraph tests in high-profile cases including the fake stamp paper scam, Nithari killings and Aarushi murder case.
No to mind games
The Supreme Court’s decision declaring forced narco-analysis and lie-detector (or brain mapping) tests unconstitutional is impeccable, not only in law, but also in terms of investigative probity and the integrity of policing. Some critics have described the judgement as a “blow” to investigative agencies. But this is nothing but a blow against shoddy, unscientific investigations and a pervasive psyche that seeks to substitute shortcuts for proper and modern methods of evidence-gathering and evaluation. It is significant that, in recent years, there had been increasing and often unproductive recourse to coercive narco and brain-mapping tests in a number of high-profile cases.
Constitutionally, an accused cannot be “compelled to be a witness against himself”, and the court has now clearly held that forcing a person to submit to these tests constitutes just such a compulsion. This settles the law on a subject that has produced divergent judgements in lower courts, with several cases in which the use of narco-analysis and lie-detector tests was upheld. This does not, of course, mean that there is no scope for such tests. It is only their coercive use that has been disallowed by the court. Where suspects are willing to submit voluntarily in an effort to ‘clear their name’ of particular allegations, judicious use of these tools remains possible, within the natural reservations that must arise from the imperfection of these methods.
Of course, an argument from expediency may arise: the threats of terrorism, proxy war and mass political violence in India have become so great that the ‘public interest’ demands the use of such methods. This, however, is a slippery slope that will end up with the justification of torture and other ‘shortcuts’ we have become habituated to. Crucially, however, such arguments are entirely defeated by an objective evaluation of the efficacy of these methods, and the deleterious impact they have on professional integrity and competence within the police.
‘Evidence’ yielded through either of these methods is, of course, not admissible in court. Advocates, however, argue that these can offer useful aids to investigation, leading to recoveries and substantive admissible evidence. The reality is, narco-analysis and lie detector tests are essentially in the realm of pseudo-science. They are far from reliable and, on the occasions that they may, in fact, yield acceptable results, are enormously dependent on the skills and sincerity of those who use these tools.
Narco-analysis reduces the subject to a deeply suggestible state and, like torture, in the hands of the wrong interrogators, can yield precisely the ‘confessions’ that are sought — whether or not these have any basis in fact. Given the broader conditions of the Indian investigative apparatus, it must be recognised that, to the extent that the use of such methods becomes widespread, these may well lead to the planting or concoction of ‘corroborative’ evidence and testimonies. Moreover, both narco-analysis and lie detector tests produce wildly divergent outcomes from interrogator to interrogator and from subject to subject. Individuals react very differently to these tests. Such testing not only produces unreliable data, but hardened criminals may well be able to, or be trained to, produce deceptive outcomes, effectively misdirecting or terminating productive investigations.
The crucial argument against such tests, however, arises from its general impact on the character and capacity for scientific investigation and professional policing. Increasing reliance on these tools is essentially an unreliable shortcut that obstructs the development of effective capabilities for scientific investigation and the creation of adequate forensic capacities within the law enforcement establishment.
There are a number of cases in the recent past — the Aarushi case prominent among these — where repeated and unproductive narco-tests have been sought to be substituted for utterly botched investigations and what, prima facie, appears to be the deliberate destruction of crucial evidence. There has been a veritable slew of recent cases — including the trial and acquittal of the two co-accused, Fahim Ansari and Sabahuddin, in the 26/11 Ajmal Kasab trial — where extremely shoddy investigative work has been manifest. Increasing reliance on shortcuts such as narco-analysis and brain mapping (and including torture) will only deepen the culture of investigative incompetence that is currently pervasive across the country.
The conditions of Indian policing in general, and the investigative apparatus in particular, are a disgrace to any modern nation, certainly to one that aspires to be a ‘great power’ in the conceivable future. This has been the result of decades of neglect by successive regimes, both at the Centre and in states. Instead of addressing the colossal cumulative deficit in capacities for policing, investigation and forensics, policymakers and the police leadership have been resorting to a range of slapdash methods that have undermined faith in enforcement agencies, even as they have largely failed to produce the desired results in terms of effective law-and-order management and prosecution of crime.
None of this is going to create the apparatus we need to fight the rising threats to internal security, though they may produce an occasional flash-in-the-pan ‘success’. In every sphere — the investigation of crimes, including terrorist crimes, is no exception — it must now be realised, there is no substitute for professionalism and efficiency, and for the creation of capacities for modern and scientific police work, and a competent and modern apparatus for internal security management.
Ajai Sahni is Executive Director, Institute for Conflict Management and South Asia Terrorism Portal
(Ajay Sahni is the author of this Article; views expressed by the author are personal. He is the Executive Director, Institute for Conflict Management and South Asia Terrorism Portal)
Law Commission likely to recommend ban on narco analysis test
The Law Commission of India is likely to recommend a ban on narco analysis test as it violates the basic human rights.
The Law Commission’s report to be tabled before the board next month for approval may suggest that revelations made under the influence of the drugs cannot be considered as reliable and violated basic human rights.
The proposed report claims that hardened criminals may lie despite being under the influence of drugs. Others may also successfully disguise actual facts.
The report claims that several police forces across the world have found narco tests as unreliable means to find truth.
Sources said the report would be submitted to the government after approval by the board members.
The Commission, headed by Justice A R Lakshmanan, took up the issue following a request from the Forensic Science Society of India which had expressed serious concern at the widespread use of narco analyses in police investigation during the past few years. The society claimed that such tests have been banned by several countries years ago.
“As of now, no firm opinion has been formed as we are still working on the report,” a senior Commission official told PTI.
It is not binding on the government to accept the recommendations made by the Commission.
The legislative intent of the law can best be judged if you know the language, Khalap said.
Replying to a question, he said that after the inventory or translation is done, it would depend on the state Legislative Assembly to change the laws or continue enacting them in the same form.
“We will just suggest to the state government what can be done after examining each law carefully,” he said.
The law commission members who met the media for the first time after the constitution of the body said that their mandate is to review or repeal obsolete laws in force in the state.
The commission expects to rectify defects in the existing laws and identify laws which require changes or amendments and make suitable modifications or amendments to the existing laws.
“The commission will generally examine the existing laws in the light of the directive principles of state policy and suggest ways of improvement and reform,” he said.