The Supreme Court on Wednesday held as unconstitutional narco-analysis, polygraph and brain electrical activation profile or brain-mapping tests, in a blow to cops who were increasingly using the procedures as investigation tools.
In an order which virtually spells
the demise of the practices which have become popular with cops, the SC said they cannot be used even on those accused of serial killings and bomb blasts as they are violative of fundamental right of a citizen not to incriminate himself and his right to privacy under Articles 20(3) and 21 of the Constitution, respectively.
“No individual should be forcibly subjected to any of these techniques in question, whether in the context of investigation in any criminal cases or otherwise,” the apex court said.
On the face of it, the development is a jolt to investigators, considering that the tests in question have fetched them leads leading to breakthroughs in serious cases, including terror-related ones. But not every policeman was happy with the reliance on these unorthodox methods which led investigators to neglect more rigorous methods whose results would clear legal scrutiny. Some investigators often found statements made by the accused undergoing tests as flights of fancy which sent them on wild goose chases.
“The compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms,” said a Bench comprising Chief Justice K G Balakrishnan and Justices R V Raveendran and J M Panchal.
FAILING THE JUDICIAL TEST
The Ruling: SC holds narco-analysis, polygraph and brain-mapping tests on accused as violating two fundamental rights:
Article 20.3 that disallows self-incrimination and guarantees right to silence
Article 21 that guarantees right to privacy
What It Means
Virtually ends role of such scientific & drug-induced tests. Even if accused consents to the test, results won't be admissible as evidence. Also, tests with consent will have to follow NHRC guidelines
Cases Affected
These high-profile accused won't undergo narco test now
D G Vanzara in Sohrabuddin fake encounter case
Santokben Jadeja, Gujarat's ‘godmother'
Ramalinga Raju & V Srinivasan in Rs 7,000cr Satyam scam case
Trend began with Godhra probe: Narcoanalysis as a police investigation tool first acquired prominence in 2002 in the Godhra train attack probe and has since become a golden ticket for agencies probing high profile cases. Within three months after the Godhra attack in February 2002, seven persons accused of burning the train were brought to the Sree Sayaji General hospital in Vadodara for narco-analysis. SC okays voluntary tests
New Delhi: The SC judgment on narco tests was reserved by the Bench over two years ago on January 25, 2008.
While this judgment left the police and other agencies to legitimately employ DNA test for investigation, the apex court did not clarify as to what would happen to those cases where the prosecution had solely or to a large extent relied on the evidence gathered through the three faulted tests. Legal experts feel that with the SC ruling that it was a violation of fundamental rights, those convicted on the basis of evidence collected through narco-analysis, polygraph or brain mapping could move the court for retrial of their cases.
Giving the thumbs down to these three tests favoured by the Centre, the Bench by a unanimous 251-page judgment said this verdict might appear to help hardened criminals who have no regard for societal values, but as the constitutional court it could not overlook the clear breach of a citizen’s fundamental right if he was forced to undergo these tests.
While ruling that there was no room under the existing criminal law system coupled with the constitutionally guaranteed fundamental rights to allow the investigating agencies to employ these methods, it did open a small window by saying this judgment would not stand in the way of those voluntarily agreeing to undergo these scientific tests.
While adopting the guidelines framed by National Human Rights Commission (NHRC) for administration of polygraph (lie-detector), narco-analysis and brain-mapping test on those volunteering for it, the apex court said the results of these voluntary tests would still not be admissible as evidence. “Any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted,” it said.
The judgment, authored for the Bench by CJI Balakrishnan, said it cannot strike a balance when to allow the investigating agency to use these scientific tests and with what moderation, as it was the job of the legislature to embark on such an exercise.
When it was said that narco, polygraph and brain-mapping tests could be a good tool to unearth conspiracies for future terror strikes, the SC said it was for the legislature to decide in which manner should such tests be permitted.
It also rejected the argument that these tests had made the police not to resort to the age-old third-degree method to extract evidence. It said: "This is a circular line of reasoning since one form of improper behaviour is sought to be replaced by another. What this will result in is that the investigators will increasingly seek reliance on these techniques than engaging in thorough investigation."
In an order which virtually spells
the demise of the practices which have become popular with cops, the SC said they cannot be used even on those accused of serial killings and bomb blasts as they are violative of fundamental right of a citizen not to incriminate himself and his right to privacy under Articles 20(3) and 21 of the Constitution, respectively.
“No individual should be forcibly subjected to any of these techniques in question, whether in the context of investigation in any criminal cases or otherwise,” the apex court said.
On the face of it, the development is a jolt to investigators, considering that the tests in question have fetched them leads leading to breakthroughs in serious cases, including terror-related ones. But not every policeman was happy with the reliance on these unorthodox methods which led investigators to neglect more rigorous methods whose results would clear legal scrutiny. Some investigators often found statements made by the accused undergoing tests as flights of fancy which sent them on wild goose chases.
“The compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms,” said a Bench comprising Chief Justice K G Balakrishnan and Justices R V Raveendran and J M Panchal.
FAILING THE JUDICIAL TEST
The Ruling: SC holds narco-analysis, polygraph and brain-mapping tests on accused as violating two fundamental rights:
Article 20.3 that disallows self-incrimination and guarantees right to silence
Article 21 that guarantees right to privacy
What It Means
Virtually ends role of such scientific & drug-induced tests. Even if accused consents to the test, results won't be admissible as evidence. Also, tests with consent will have to follow NHRC guidelines
Cases Affected
These high-profile accused won't undergo narco test now
D G Vanzara in Sohrabuddin fake encounter case
Santokben Jadeja, Gujarat's ‘godmother'
Ramalinga Raju & V Srinivasan in Rs 7,000cr Satyam scam case
Trend began with Godhra probe: Narcoanalysis as a police investigation tool first acquired prominence in 2002 in the Godhra train attack probe and has since become a golden ticket for agencies probing high profile cases. Within three months after the Godhra attack in February 2002, seven persons accused of burning the train were brought to the Sree Sayaji General hospital in Vadodara for narco-analysis. SC okays voluntary tests
New Delhi: The SC judgment on narco tests was reserved by the Bench over two years ago on January 25, 2008.
While this judgment left the police and other agencies to legitimately employ DNA test for investigation, the apex court did not clarify as to what would happen to those cases where the prosecution had solely or to a large extent relied on the evidence gathered through the three faulted tests. Legal experts feel that with the SC ruling that it was a violation of fundamental rights, those convicted on the basis of evidence collected through narco-analysis, polygraph or brain mapping could move the court for retrial of their cases.
Giving the thumbs down to these three tests favoured by the Centre, the Bench by a unanimous 251-page judgment said this verdict might appear to help hardened criminals who have no regard for societal values, but as the constitutional court it could not overlook the clear breach of a citizen’s fundamental right if he was forced to undergo these tests.
While ruling that there was no room under the existing criminal law system coupled with the constitutionally guaranteed fundamental rights to allow the investigating agencies to employ these methods, it did open a small window by saying this judgment would not stand in the way of those voluntarily agreeing to undergo these scientific tests.
While adopting the guidelines framed by National Human Rights Commission (NHRC) for administration of polygraph (lie-detector), narco-analysis and brain-mapping test on those volunteering for it, the apex court said the results of these voluntary tests would still not be admissible as evidence. “Any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted,” it said.
The judgment, authored for the Bench by CJI Balakrishnan, said it cannot strike a balance when to allow the investigating agency to use these scientific tests and with what moderation, as it was the job of the legislature to embark on such an exercise.
When it was said that narco, polygraph and brain-mapping tests could be a good tool to unearth conspiracies for future terror strikes, the SC said it was for the legislature to decide in which manner should such tests be permitted.
It also rejected the argument that these tests had made the police not to resort to the age-old third-degree method to extract evidence. It said: "This is a circular line of reasoning since one form of improper behaviour is sought to be replaced by another. What this will result in is that the investigators will increasingly seek reliance on these techniques than engaging in thorough investigation."
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