Write a note regarding involuntary subjection of a person to Narco-analysis test, polygraph test, and brain mapping test with special reference to the latest judgments of the Supreme Court of India.

Question: Write a note regarding involuntary subjection of a person to Narco-analysis test, polygraph test, and brain mapping test with special reference to the latest judgments of the Supreme Court of India. [RJS 2016]

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Answer

The Deception Detection Tests (DDT) such as polygraph, narco-analysis, and brain-mapping have important clinical, scientific, ethical, and legal implications1. The DDTs are useful to know the concealed information related to crime. However, the use of these tests amounts to self-incrimination which is prohibited under Article 20(3) of the Indian Constitution. The provision says that no one can be compelled to give evidence against himself or to be a witness against himself, and therefore, any statement given during the narco-analysis test cannot be considered evidence in the constitutional framework of the country.

The infamous case of Supreme Court of State of Bombay v. Kathi Kalu Og had [1961 AIR 1808] court held that when police are carrying out the polygraph test without the consent of accusing is a clear violation of the right against self-incrimination enshrined under Article 20(3) of Indian Constitution. Bombay High Court had to clarify that If the accused is compelled to give a polygraph test against his will in order to get evidence then is it a violation of the right to silence hence the court held that the right against self-incrimination only work at the time of court proceedings and not to police interrogation.

In a 2010 landmark judgment of Smt. Selvi & Ors v. State of Karnataka [2010(7) SCC 263], the apex court of India has clearly stated that DDTs cannot be administered without consent. While in the earlier judgments, the courts were in favor of obtaining evidence through the use of DDT methods. In this judgment, the involuntary administration of DDT for the purpose of improving investigation efforts in criminal cases was questioned on the account of violation of fundamental rights such as:

1. ‘Right against self-incrimination’ enumerated in Article 20(3) of the Constitution, which states that no person accused of an offense shall be compelled to be a witness against himself/herself, and
2. Article 21 (Right to life and personal liberty) has been judicially expanded to include a ‘right against cruel, inhuman or degrading treatment.

The Supreme Court has put certain guidelines of the which is needed to be followed before enabling a polygraph analysis test and also said that consent of accuse needs to be taken before enabling polygraph analysis otherwise it will be a clear infringement of the right against self-incrimination of Indian Constitution.

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