The Supreme Court ruling declaring the use of narco-analysis, brain mapping and polygraph tests — unless consent is secured from the person being subjected to them — as 'illegal' and 'un-constitutional' comes as a big blow to investigative agencies. The apex court has determined that the use of these scientific techniques is in contravention of Article 20(3) of the Constitution which says that no person accused of any offence shall be compelled to be a witness against himself or herself. This newspaper believes the Supreme Court has, in this instance, erred in its narrow interpretation of a constitutional provision and in the application of moral principles of an individual's right to privacy. India is not a police state and narco-analysis, brain mapping or polygraph tests are not conducted at random on anybody and everybody, or to browbeat critics and opponents of the Government into submission. There are proper procedures in place to ensure that these techniques are not misused. Besides, narco-analysis, brain mapping and polygraph tests are resorted to by the police when they hit a wall while investigating serious crimes such as murder, financial fraud and terrorism to achieve a breakthrough that can, in turn, be used for gathering corroborative evidence. The results of these tests by themselves do not constitute evidence. In other words, they are useful for investigators in cases where hard or circumstantial evidence is virtually impossible to come by despite best efforts. For example, a person suspected to have plotted or aided a terrorist attack may have covered up his tracks. Or a fraudster may have taken care not to leave a paper trail. Or, as in the infamous murder of Arushi, the killer may have destroyed all evidence. In such cases, investigators do require means like narco-analysis, brain mapping and polygraph tests for a vital clue or to simply determine if the person suspected to have committed the crime is, in reality, innocent. We live in troubled times and in an imperfect world. Utopian values rooted in constitutionalism are desirable, but for that we must wait for a while. In any event, busting crime is a messy affair around the world; there is nothing unique about India.
Rights activists opposed to narco-analysis, brain mapping and polygraph tests absurdly claim that these scientific investigative techniques amount to obtaining confession through torture. This is absolutely untrue. Putting a suspect through what is commonly referred to as a 'lie detection' test is not the same as water boarding and similar methods that are used for extracting confession under duress. Custodial torture is abhorrent and has no place in a civilised, democratic country. But surely supervised, benign scientific lie detection tests do not qualify as custodial torture? As for an individual's right not to give evidence against himself or herself is concerned, taken to an extreme it could lead to a situation where men — and women — could disown paternity and paternal responsibility through the expedient means of refusing to undergo a DNA test. Would that be in order? More importantly, would the courts uphold the right of an individual to refuse to undergo a DNA test? Absolutism does not necessarily contribute to a better society.
