Introduction
The entire country witnessed yet another brutal and inhumane rape and murder of a 2nd year PG Medical Student at RG Kar College and Hospital, Kolkata. After country-wide protests and insufficiency of the Kolkata Police to probe in the matter, the Kolkata High Court transferred the case to the Central Bureau of Investigation (hereinafter, “CBI”) for investigation. The CBI’s recent plea to the Kolkata Special Court to conduct polygraph tests on the accused persons, including the Former Principal Sandip Ghosh, the arrested Civic Volunteer and 5 others, was allowed. Experts from the Central Forensic Science Laboratory in Delhi will conduct these tests.
A polygraph test, also known as a lie detector test, involves three phases: the pretest interview, the testing phase, and the post-test phase. The individual is subjected to measuring devices, such as a sphygmomanometer, pneumographs, and electrodes, on the subject. Polygraph tests measure a person’s physiological responses while they answer questions.
Another form of such a test is the narco-analysis test. The procedure entails the administration of a substance known as sodium pentothal, diluted with distilled water, into the body of the subject. This treatment effectively neutralizes the person’s imagination, thereby facilitating the disclosure of accurate information pertaining to the crime. Consequently, the narco-analysis test is commonly referred to as ‘truth serum’. The principle on which a narco-analysis works is the human mind’s subconscious stage. It operates on the premise that individuals typically experience stress while lying, resulting in detectable and measurable physiological reactions to psychological stimuli (i.e., the questions).
In this article, the Author discusses the constitutional validity of such psycho-analysis tests in the light of Article 20(3) (Right against Self-Incrimination) and Article 21 (Right to Privacy) of the Indian Constitution (hereinafter, “the Constitution”). These tests, while may be potentially valuable for investigations, raise significant constitutional issues. The author further analyses how allowing such tests creates and imbalance of power between the law enforcement agencies and the accused.
Constitutional Validity of Psycho-Analysis Tests in a Criminal Investigation
Narcoanalysis is performed only in the “rarest of the rare” cases. The proponents of this test argue that this saves the accused from third-degree torture to compel them to tell the truth or ‘confess’ during an investigation. Third-degree torture is a police interrogation technique that uses physical or mental suffering to force confessions or other information from suspects. Often times, the police use extreme measures, the “traditional methods” of an investigation, which may leave the accused with physical harm. Every accused is innocent until proven guilty. In cases of third-degree methods, an innocent is tortured only enough so as to not blur the line of difference between causing them harm and investigating. In the case of Raghbir Singh v. State of Haryana, the Supreme Court held that third degree torture by police and investigating agencing is not just shameful but it also violates the fundamental rights of these individuals, rendering these methods illegal. However, the reality of investigations in our country remains the same, where such methods are inevitable in the process of ‘securing justice.’
The opponents to narcoanalysis, however, argue that the same is unconstitutional and inhumane. It violates Article 20(3) of the Constitution which provides for the fundamental right against self-incrimination. State of Bombay v. Kathi Kalu Oghad had defined the scope of “what it means to be a witness.” The Supreme Court of India (hereinafter, “SC”) held that Article 20(3) extends to “compelled personal testimony”. The Court laid down two essentials to invoke protection under Article 20(3). The accused must have been “compelled” to convey their personal knowledge and that this information must be incriminatory in nature, making a case against the accused himself.
The SC in its transformative judgement in Selvi vs. State of Karnataka, held the techniques of psycho-analysis as unconstitutional. Karnataka government’s Forensic Science Laboratory had subjected the accused and alleged Naxalites to its “truth serum” under the influence of which, they “sang like canaries.” The SC held that being a witness is not limited to physical or oral evidence, it also includes psychological and mental testimonies. Any evidence obtained without voluntary consent is not admissible in any court of law. And hence, when personal autonomy and choice is compromised or interfered with, and a testimony which a person may not have given in his full senses is obtained, it is not permissible.
The Court drew its interpretation from two landmark cases, M.P. Sharma v Satish Chandra and State of Bombay v. Kathi Kalu Oghad (supra). In the former, the Court held that a search and seizure conducted by the police did not constitute “compulsion” as defined in Article 20(3), as the accused was not being coerced into any action. The latter laid down the scope of a personal testimony, as explained previously.
The Indian Evidence Act, 1872 does not allow results of a polygraph test as admissible evidence in a case and hence, it does not hold any evidentiary value. The results of the test may, however, hold corroboratory value, as an expert opinion allowed under Section 45A of the Indian Evidence Act, but cannot be the sole basis of a suspect’s conviction or acquittal. A narco-analysis test can only hold an evidentiary value when the accused is undergoing it voluntarily, and the decision is made on a free-will, without any coercion.
The fundamental principle of the right against self-incrimination is the right to remain silent. Miranda vs. Arizonalaid down the “nemo tenetur prodere accusare seipsum” maxim, which implies that “no man is bound to accuse himself.” In Sarwan Singh v. State of Punjab, it was held that accused should be given at least 24 hours to think whether he wants to make the confession or not.
Violation of the Right to Privacy
Any infliction of physical or mental pain and duress by an investigating authority, upon an individual, constitutes custodial torture. By this means, involuntary and coerced polygraph tests also constitute mental duress and hence, torture. In DK Basu vs. State of Bengal, the SC described ‘custodial torture’ as “a naked violation of human dignity and degradation that destroys self-esteem of the victim and does not even spare his personality.” The Court also laid down guidelines, the DK Basu Guidelines, in cases of arrest or detention as preventive measures guarding the arrested individual’s rights under Article 21 of the Constitution.
The defendants of polygraph or lie-detector tests argue that this is a well-protected test, in line with the rule of law as under Sections 160-167 Code of Criminal Procedure (hereinafter, “CrPC”). However, the invasive nature of this test overrules this argument. This is not only illegal but also scientifically unproven to be trustworthy and hence, the results cannot be held to be conclusive. Since the participant in a lie detector test after being subjected to the truth serum is in a sub-conscious state, the responses are not given in free will and are hence, coerced. Investigators can also create questions in a way that may elicit self-incriminating responses.
Every individual has the Right to Silence, as under Section 161 of the CrPC which specifies that he has the right not to answer any questions put to him “which would have a tendency to expose that person to a criminal accusation, punishment or relinquishment.” The SC in Nandini Sathpathy v. P.L.Dani, held that a person has the right to remain silent throughout an investigation.
Imbalance of Power between the State and the Accused
In India, polygraph tests’ constitutionality hinges on a careful balancing between the individual’s right to privacy and against self-incrimination and the state’s need for efficient law enforcement. This balancing act is crucial to guarantee that justice is delivered while upholding fundamental rights.
The Balance of Power theory postulates that a criminal law system must strike a balance between the power endowed upon the State to follow through an investigation and employ justice and the protection to an accused, including the ability to defend himself. India largely relies on a due-process model of the criminal legal system. This model places the procedure and rights of both the victim and the accused at the forefront. It protects against potential arbitrary action by the government.
The primary argument for using polygraph tests is to resolve deadlocks in investigations and enable progress. This, however, takes the extreme of marginalising the individual’s rights and hence, creating an imbalance in favour of the State.
The Chief Justice of India, Dr DY Chandrachud, while speaking at an event, explained the delicate balance between the State’s interest in effective law enforcement and an individual’s fundamental rights. He highlighted the need to uphold the due process of law by the enforcement agencies. In an investigation, the State is put on a higher stand with its “investigating powers”. However, this is checked and balanced with the fundamental rights against self-incrimination and of privacy and dignity, endowed by the Constitution.
National Human Rights Commission Guidelines
In 1997, Shri Inder P. Choudhrie, lodged in the Shimla Sub-jail, petitioned to the National Human Rights Commission (hereinafter “NHRC”) against the torture and forced polygraph test being imposed on him without his consent. The NHRC held that it is necessary to formulate guidelines since a lie detector test is not regulated by law. NHRC released these guidelines as a preventive measure until the legislature can put a law in place.
The guidelines were three-faceted. It outlines the need of consent in the aspects of voluntariness, information and documentation. A polygraph test can only be conducted on a person where they give free and voluntary consent, with an option to refuse. This must be an informed decision, with the person having the knowledge of the legal consequences, objectives, and procedure of the test. Lastly, this consent must be judicially documented and hence, given in front of a judicial magistrate.
The NHRC guidelines emphasize the necessity of obtaining informed, voluntary consent before administering psycho-analysis tests, ensuring that any such procedure complies with legal and ethical standards.
Conclusion
Polygraph and narcoanalysis tests have been time and again used during investigations to “meet the ends of justice.” But is justice only a victim-centric idea? Do the accused, who are “innocent until proven guilty”, not entitled to fair trial and justice? There is no doubt that every victim deserves justice to be served. But the Indian Constitution holds the principle of the rule of law to its core and hence, justice can only be served in its truest sense when the rights and dignity of both the victim and the accused are preserved.
An important question, we need to ask is whether such heinous and inhumane crimes like the Kolkata rape and murder case, justify these tests? Further, who decides the graveness of a crime and whether the crime is ‘henious enough’ to allow blurring the lines of privacy and justice? On a moral ground, these questions sure answer in the affirmative. However, the law may disagree. While psycho-analytic tests might offer investigative advantages, their use must be carefully weighed against fundamental constitutional rights. Ensuring that justice is served while respecting the rights and dignity of all individuals involved remains a critical challenge in balancing state interests with individual freedoms.
The Author is a Senior Editor at the Constitutional Law Society and a third-year student of National Law University Odisha, Cuttack.
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