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2010 (5) TMI 907 - SC - Indian LawsInvoluntary administration of scientific techniques - narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test - improving investigation in criminal cases - involves tensions between the desirability of efficient investigation and the preservation of individual liberties - Implications of permitting the use of techniques - fundamental rights to all citizens - Whether the results gathered from the impugned tests amount to testimonial compulsion', thereby attracting the prohibition of Article 20(3 ) - HELD THAT - we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as personal testimony', since they are a means for imparting personal knowledge about relevant facts'. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of testimonial compulsion', thereby attracting the protective shield of Article 20(3). Whether the involuntary administration of the impugned techniques is a reasonable restriction on personal liberty' as understood in the context of Article 21 of the Constitution? The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of personal liberty' under Article 21. Hence, our understanding of the right to privacy' should account for its intersection with Article 20(3). Furthermore, the rule against involuntary confessions' as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual's decision to 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. It is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person's mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self-incrimination'. However, this determination does not account for circumstances where a person could be subjected to any of the impugned tests but not exposed to criminal charges and the possibility of conviction. In such cases, he/she could still face adverse consequences such as custodial abuse, surveillance, undue harassment and social stigma among others. Whether the act of forcibly subjecting a person to any of the impugned techniques constitutes cruel, inhuman or degrading treatment', when considered by itself - 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 the examiner has to be very skilful and thorough while interpreting the results. In a narcoanalysis tes t the subject is likely to divulge a lot of irrelevant and incoherent information. The subject is as likely to divulge false information as he/she is likely to reveal useful facts. Sometimes the revelations may begin to make sense only when compared with the testimony of several other individuals or through the discovery of fresh materials. In a polygraph test , interpreting the results is a complex process that involves accounting for distortions such as countermeasures' used by the subject and weather conditions among others. In a BEAP test , there is always the possibility of the subject having had prior exposure to the probes' that are used as stimuli. All of this is a gradually unfolding process and it is not appropriate to argue that the test results will always prove to be crucial in times of exigency. It is evident that both the tasks of preparing for these tests and interpreting their results need considerable time and expertise. the compulsory administration of the impugned techniques violates the right against self- incrimination'. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the CrPC it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible conveyance of personal knowledge that is relevant to the facts in issue'. The results obtained from each of the impugned tests bear a testimonial' character and they cannot be categorised as material evidence. We are of view that forcing an individual to undergo any of the impugned techniques violates the standard of substantive due process' which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an 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 scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to cruel, inhuman or degrading treatment' with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the right to fair trial'. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the right against self-incrimination'. Therefore, 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, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. T he National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the Narcoanalysis technique' and the Brain Electrical Activation Profile' test. The text of these guidelines has been reproduced. The present batch of appeals is disposed of accordingly.
Issues Involved:
1. Involuntary administration of narcoanalysis, polygraph examination, and Brain Electrical Activation Profile (BEAP) tests. 2. Violation of the right against self-incrimination under Article 20(3) of the Constitution. 3. Reasonableness of restrictions on personal liberty under Article 21 of the Constitution. 4. Admissibility of evidence derived from the impugned techniques. 5. Professional ethics of medical personnel involved in administering these techniques. 6. Scientific validity and reliability of the impugned techniques. 7. Procedural safeguards and guidelines for administering these techniques. Detailed Analysis: 1. Involuntary Administration of Impugned Techniques: The legal questions in these criminal appeals concern the involuntary administration of narcoanalysis, polygraph examination, and BEAP tests. These techniques have been used to improve investigation efforts in criminal cases. The core issue is the tension between efficient investigation and the preservation of individual liberties. 2. Violation of Right Against Self-Incrimination (Article 20(3)): The involuntary administration of these techniques raises questions about the protective scope of the right against self-incrimination under Article 20(3) of the Constitution. It has been argued that the information extracted through these methods cannot be equated with testimonial compulsion because the test subject is not required to give verbal answers. However, the Court held that such techniques do amount to testimonial compulsion and thus violate Article 20(3). 3. Reasonableness of Restrictions on Personal Liberty (Article 21): The Court examined whether the provisions in the Code of Criminal Procedure, 1973, that provide for medical examination during the investigation can be expansively read to include these techniques. It was necessary to discuss the principles governing the interpretation of statutes in light of scientific advancements. The Court also considered whether the involuntary administration of these techniques violates the right against cruel, inhuman, or degrading treatment, which is part of the right to personal liberty under Article 21. 4. Admissibility of Evidence: The scientific validity and reliability of these techniques were questioned. The Court noted that empirical studies suggest that the drug-induced revelations need not necessarily be true. The reliability of polygraph examination and BEAP tests has been repeatedly questioned. The Court held that the results of these tests cannot be admitted as evidence if obtained through compulsion. 5. Professional Ethics of Medical Personnel: Questions were raised about the professional ethics of medical personnel involved in administering these techniques. The Court noted that the involvement of doctors in criminal investigations has long been recognized as an exception to the physician-patient privilege. However, the ethical concerns regarding the administration of these tests were acknowledged. 6. Scientific Validity and Reliability: The Court noted that the scientific validity of these techniques is questionable. The narcoanalysis technique involves the intravenous administration of sodium pentothal, which lowers inhibitions and induces the person to talk freely. However, the revelations may not necessarily be true. Polygraph examination and BEAP tests are methods for lie-detection and gauging familiarity with crime-related information, but their reliability has been questioned in empirical studies. 7. Procedural Safeguards and Guidelines: The Court emphasized the need for procedural safeguards and guidelines for the voluntary administration of these techniques. The National Human Rights Commission's guidelines for the administration of polygraph tests should be strictly adhered to, and similar safeguards should be adopted for narcoanalysis and BEAP tests. Conclusion: The Court held that no individual should be forcibly subjected to any of the impugned techniques, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, the voluntary administration of these techniques is permissible, provided certain safeguards are in place. The test results by themselves cannot be admitted as evidence, but any information or material subsequently discovered with the help of voluntarily administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.
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