Introduction
Recently, Lie-Detection has been the most debated topic amongst the legal fraternity,
media and common masses. Lie-Detection test, the development of new tools of
investigation has led to the emergence of scientific tools of interrogation. With recent
advent of technologies in every sphere of life, criminal investigation is no more left out of
its effects. Lie-Detection is one of such scientific forms of investigation in which some
sort of statement from the accused is acquired which might form evidence. The
Evidence Act is completely silent on such employment of scientific process. Such
process has often been criticized as against the tenets of Constitution and on the other
hand has been upheld as a necessity to evaluate some complicated issues.
Lie-Detection poses several questions at the intersection of law, medicine and ethics. Is
the procedure for Lie-Detection is violative of the rights against self-incrimination,
guaranteed under Article 20 (3) of Constitution? It figured prominently in the news
recently when it became eye of storm and sparked off the debate when media played
the role of Unnao rape case2,in utter Pradesh. Accused subjected to Lie-Detection test
when he demanded Narco testfor justice and for the faith in criminal justice system.
Constitutional & Legal Provisions on Lie-Detection in India
Brain mapping and lie detector tests against the will of the accused would be violative of
Article 20 (3) of the Constitution. The main provision regarding crime investigation and
trial in the Indian Constitution is Art. 20(3). It deals with the privilege against
self-incrimination. The privilege against `self incrimination is a fundamental canon of
Common law criminal jurisprudence. Art. 20(3) which embodies this privilege says, “No
person accused of any offence shall be compelled to be a witness against himself”.
Subjecting the accused to undergo the test, as has been done by the investigative
agencies in India, is considered by many as a blatant violation of Art.20 (3) of
Constitution.
The application of Lie-Detection test involves the fundamental question pertaining to
judicial matters and also to Human Rights. The legal position of applying this technique
as an investigative aid raises genuine issues like encroachment of an individual’s rights,
liberties and freedom. In case of State Bombay v. Kathikalu, it was held that it must be
shown that the accused was compelled to make statement likely to be incriminative of
himself. Compulsion means duress, which includes threatening, beating or
imprisonment of wife, parent or child of person. Thus where the accused makes a
confession without any inducement, threat or promise art 20(3) does not apply. Thus,
the privilege against self-incrimination enables the maintenance of human privacy and
observance of civilized standards in the enforcement of criminal justice.
The right against forced self-incrimination, widely known as the Right to Silence is
enshrined in the Code of Criminal Procedure (CrPC) and the Indian Constitution. In the
CrPC, the legislature has guarded a citizen’s right against self-incrimination. S.161 (2)
of the Code of Criminal Procedure states that every person “is bound to answer
truthfully all questions, put to him by a police officer, other than questions the answers to
which would have a tendency to expose that person to a criminal charge, penalty or
forfeiture”. It is said that Lie-Detection constitutes mental torture and thus violates the
right to life under Article 21 as it deals with right to privacy. Again, law against intrusion
in privacy of individual would not allow brain fingerprinting evidence to be given in court.
Right to Silence has been granted to the accused by virtue of the pronouncement in the
case of Nandini Sathpathy v. P.L.Dani, no one can forcibly extract statements from the
accused, who has the right to keep silent during the course of interrogation
(investigation). By the administration of these tests, forcible intrusion into one’s mind is
being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.
She claimed that she had a right of silence by virtue of Article 20(3) of the Constitution
and Section 161 (2) of Cr. P.C. The Apex Court upheld her pleas. Moreover, the tests
like Lie-Detection are not considered very reliable. Studies done by various medical
associations in the US adhere to the view that truth serums do not induce truthful
statements and subjects in such a condition of trance under the truth serum may give
false or misleading answers. In M.P.Sharma v. Satish Chandra, the Supreme Court
observed that since the words used in Article 20(3) were “to be a witness” and not “to
appear as a witness” the protection is extended to compelled evidence obtained outside
the Courtroom
The term “Right to Privacy” is generic term encompassing various rights recognized to
be inherent concept or ordered liberty. The right to be left alone on right of a person to
be free from unwarranted publicity is Right to Privacy This Right to Privacy is implicit in
the right to life and liberty guaranteed to the citizens of India by Article 21 of the
constitution of India. None can publish anything covering the above matters without his
consent whether truthful or otherwise and whether laudatory or critical. If done so, it will
be violating right to privacy of person concerned and would be liable in an action for
damages. In Indian constitution protection of life, liberty and freedom has throughout
interpreted and Article 14, 19, 21 are best example for any constitution against right to
privacy.
Practice of Lie-Detection in India
A few democratic countries, India most notably, still continue to use Lie-Detection.
Lie-Detection is not openly permitted for investigative purposes in most developed and
democratic countries. In India, the Lie-Detection test is done by a team comprising of an
anesthesiologist, a psychiatrist, a clinical/ forensic psychologist, an audio-videographer,
and supporting nursing staff. The forensic psychologist prepares the report about the
revelations, which is accompanied by a compact disc of audio-video recordings. The
strength of the revelations, if necessary, is further verified by subjecting the person to
polygraph and brain mapping tests.
Now a days, Lie-Detection is steadily being mainstreamed into investigations, court
hearings, and laboratories in India. The judgment of an eleven-judge bench in the case
of State of Bombay v. KathiKalu Oghad, where it was observed that self-incrimination
means conveying information based upon personal knowledge of the person and
cannot include merely the mechanical process of producing documents in court. In Ram
Jawayya Kupar’s case It has been held that executive power cannot intrude on either
constitutional rights and liberty, or for that matter any other rights of a person and it has
also been observed that in absence of any law an intrusion in fundamental rights must
be struck down as unconstitutional.
Admissibility of Lie-Detection in the court
Lie-Detection is considered as a tool or aid in collecting and supporting evidence.
However doubts are raised whether it amounted to testimonial compulsion in judiciary
and violation of human right, individual liberty and freedom. Lawyers are divided on
whether the results of Lie-Detection and P300 tests are admissible as evidence in
courts, as they claim that confessions made by a semiconscious person is not
admissible in court. A Lie-Detection test report has some validity but is not totally
admissible in court, which considers the circumstances under which it was obtained and
assessed its admissibility. Results of such tests can be used to get admissible evidence,
can be collaborated with other evidence or to support other evidence. But if the result of
this test is not admitted in a court, it cannot be used to support any other evidence
obtained the course of routine investigation.
In India, Lie-Detection was first used in 2002 in the Godhra carnage case. It was also in
the news after the famous Arun Bhatt kidnapping case in Gujarat wherein the accused
had appeared before NHRC and the Supreme Court of India against undergoing the
Lie-Detection . It was again in the news in the Telgi stamp paper scam when Abdul
Karim Telgi was taken to the test in December 2003. Though in the case of Telgi,
immense amount of information was yielded, but doubts were raised about its value as
evidence. Lie-Detection was in the limelight in the context of infamous Nithari village
(Noida) serial killings. The two main accused in the Nithari serial killings Mohinder Singh
Pandher and Surendra Kohli have undergone Lie-Detection tests in Gandhinagar in
Gujarat.
Criticism of Lie-Detection test
Lie-Detection has been criticized on the ground that it is not 100% accurate. It has been
found hat certain subjects made totally false statements. It is not much help in case of
malingers or evasive, untruthful person. For its success a competent and skilled
interviewer is required who is trained in putting recent and successful questions.
Lie-Detection test is a restoration of memory which the suspect had forgotten. This test
result may be doubtful if the test is used for the purposes of confession of crimes.
Suspects of crimes may, under the influence of drugs, deliberately withhold information
or may give untrue account of incident persistely. Lie-Detection is not recommended as
an aid to criminal investigation. In medical uses like in treatment of psychiatric disorder
the Lie-Detection may be useful. Unless the test is conducted with the consent of the
suspect it should not be used in criminal investigation.
Right to self incrimination: Is it against public interest
The other view regarding the legal validity of Lie-Detection test is that it is used as an
aid for collecting evidence and helps in investigation and thus does not amount to
testimonial compulsion. Thus it does not violate the constitutional provision regarding
protection against self-incrimination. Supporters of Lie-Detection test are of view that it
is particularly useful when there is a requirement to elicit required information for
preventing any offences by terrorist. However its application must be assessed
objectively so that it can be replaced by existing conventional method of interrogation
which brought shame, ignominy and disrepute to police leading to erosion of credibility
of criminal justice system. Lie-Detection can evolve as viable effective alternate to
barbaric third degree methods. Care however must be taken that this procedure is not
misused or abused by investigating officer and should be correlated with corroborative.
Recently, In a major blow to investigating agencies, the Supreme Court in the case of
Selvi v. State of Karnataka held the use of Lie-Detection, brain-mapping and polygraph
tests on accused, suspects and witnesses without their consent as unconstitutional and
violation of the ‘right to privacy’. A three-Judge Bench of Chief Justice K.G.
Balakrishnan and Justices R.V. Raveendran and J.M. Panchal, in a 251-page judgment,
said:
“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.”
The judges said:
“The compulsory administration of the impugned techniques violates the right against
self-incrimination. The test results cannot be admitted in evidence if they have been
obtained through the use of compulsion. Article 20 (3) of the Constitution [No person
accused of any offence shall be compelled to be a witness against himself] protects an
individual’s choice between speaking and remaining silent, irrespective of whether the
subsequent testimony proves to be inculpatory or exculpatory.”
The Bench further said:
“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.”
The CJI said:
“It is our considered opinion that subjecting a person to the impugned techniques in an
involuntary manner violates the prescribed boundaries of privacy.”
The Bench held that if these techniques were used compulsorily if would violate Article
20 (3). The Bench made it clear that even when the subject had given consent to
undergo any of these tests, the test results by themselves could not 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.”
In the case of Rojo George Vs. Deputy Superintendent of Police while allowing the
narco analysis test Court is of the opinion that in present day the criminals started to
use very sophisticated and modern techniques for committing the crime. So the
conventional method of investigation and questioning to the criminals will not be
successful for solution and there is need to utilize some new techniques such as
polygraph, brain mapping and narco analysis.
Conclusion
The present criminal justice system is possessed with individual liberty and freedom and
in this context a safe passage is unavoidable to criminals due to weakness in the
criminal justice system leading to dilution of evidence. Since the validity of the test and
admissibility of Lie-Detection has been quashed by the Apex court taking into
consideration the circumstances under which it is obtained, the possibility of justice has
weakened. It is submitted that if the provision of administering Lie- Detection test is
made compulsory for the accused /witness in grave offences, it may pave the way for
improving the quality of criminal justice through strengthening of evidence system. This
move will bring about a qualitative change in the criminal justice. But a big question
mark on the validity of thecLie Detection test when the demanding for justice by
accused person.The Narco test can be said to be unethical, when everything in
investigating fails. Every person is innocent until proven guilty, and the same aspect
should be maintained while carrying out any criminal investigation