narco,brain mapping
ankit gupta
(Querist) 20 August 2008
This query is : Resolved
respected sir/mam
do you think the narco,or the bain mapping tests are voilative of article 21 of the indian constitution or not?????
Srinivas.B.S.S.T
(Expert) 20 August 2008
I dont think so but the relavancy of the tests and the validity of the tests is an ambiguity so far as the judiciary is concerned.
K.C.Suresh
(Expert) 21 August 2008
Dear Gupta, As you know the accused is presumed to be innocent, -That it is for the prosecution to establish his guilt, and -That the accused need not make any statement against his will. -These propositions emanate from an apprehension that if compulsory examination of an accused were to be permitted then force and torture may be used against him to entrap him into fatal contradictions. The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.
Art. 20(3) which embody this privilege reads, “No person accused of any offence shall be compelled to be a witness against himself”. On analysis, this provision will be found to contain the following components:
-It is a right available to a person “accused of an offence”;
-It is a protection against such “compulsion” “to be a witness”;
-It is a protection against such “compulsion” resulting in his giving evidence against himself.
All the three ingredients must necessarily coexist before the protection of Art 20(3) can be claimed. If any of these ingredients is missing, Art. 20(3) cannot be invoked. The application of narco analysis 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. Section 45 of the Indian Evidence Act, 1872 does allow experts’ opinions in certain cases. However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.
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. It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs 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.
In a 2006 judgment (Dinesh Dalmia v State), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary."
In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narco analysis are not admissible in evidence.
In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling after hearing arguments for three days from various parties, including Solicitor General Goolam E. Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to assist the court in the case. Telgi and his accomplices are facing probe by various states' police and other investigative agencies for their alleged criminal acts. These accused people have challenged the legality of the use polygraph, brain mapping and narco-analysis by the investigative agencies to probe the crime.
The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum
