South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

J. Venkatesan

The Supreme Court on Wednesday said it would be failing in its duty if it permitted any citizen to be forcibly subjected to narco-analysis, brain mapping and polygraph tests in violation of his privacy. Notwithstanding the fact that its judgment would benefit hardened criminals who had no regard for societal values, the court had a constitutional right to protect the rights of citizens.

A three-judge Bench headed by Chief Justice of India K.G. Balakrishnan said: “One of the main functions of constitutionally prescribed rights is to safeguard the interests of citizens in their interactions with the government. As guardians of these rights, we will be failing in our duty if we permit any citizen to be forcibly subjected to these tests.”

Unjustified intrusion

Irrespective of the need to expedite investigations in sensitive cases, no person, who was a victim of an offence, could be compelled to undergo any of these tests. Such forcible administration would be an unjustified intrusion into mental privacy and could lead to further stigma for the victim.

“It must be borne in mind that in constitutional adjudication our concerns are not confined to the facts at hand but extend to the implications of our decision for the whole population as well as future generations.”

The Bench said: “Forcing an individual to undergo any of these 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.”

Inhuman treatment

On the contention that these techniques could be read into the statute within the ambit of ‘medical examination’ in the Criminal Procedure Code, the Bench said such an expansive interpretation was not feasible. “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 a fair trial. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the right against self-incrimination.”

The Bench said: “It is also quite conceivable that a person could make an incriminating statement on being threatened with the prospective administration of any of these techniques. Conversely, a person who has been forcibly subjected to these techniques could be confronted with the results in a subsequent interrogation, thereby eliciting incriminating statements. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure, among others, the same cannot be the basis for compelling a person ‘to impart personal knowledge about a relevant fact’.”

The Bench said: “It is also quite conceivable that an individual may give his/her consent to undergo the said tests on account of threats, false promises or deception by the investigators. For example, a person may be convinced to give his/her consent after being promised that this would lead to early release from custody or dropping of charges. However, after the administration of the tests the investigators may renege on such promises. In such a case, the relevant inquiry is not confined to the apparent voluntariness of the act of undergoing the tests, but also includes an examination of the totality of circumstances. 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 law.”

“Only an aid”

The former CBI Director, R.K. Raghavan, welcoming the judgment, said: “These tests are a dubious tool in the hands of the investigator. It [test] has been more romanticised than the real benefit in the investigation. Within my knowledge, it has not served any useful purpose in any major investigation. It is only an aid.”

Source: The Hindu – 06.05.2010

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