Procedures adopted in Narco Analysis test, Brain Mapping test and Polygraph examination.

The Narco Analysis test uses chemical substances such as sodium pentothal which is injected into the body of the subject. The subject then enters a state of hypnosis wherein there is less inhibitions, which makes the subject respond to all the questions put to him/her. It induces a stupor in which mental elements with strong associated affects come to the surface, where they can be exploited by the therapist. There is a high possibility that the subject may reveal every detail which he/she may usually not do so in a conscious state.

The Brain Mapping test is also known as the Brain Electrical Activation Profile test in India. It employs electrodes as a tool that is attached to the head and face of the subject. The principle behind this type of testing is that when the subject is exposed to auditory or visual stimuli (pictures, videos and sounds) material related to a crime, the subject will emit P300 wave components which are electrical waves emitted from the subject's brain and the same gets recorded by the instrument.

The Polygraph examination is also commonly known as a lie detector test. The theory is that if a subject is more likely to be concerned with lying about the relevant facts of a crime, a hyper-arousal state is produced which is picked up by a person trained in reading polygraph results. The measurement of hyper-arousal state is based on a number of parameters such as heart rate, blood pressure, respiratory rate, skin conductance and electromyography.

Constitutionality of involuntary administration of Narco Analysis test, Brain Mapping test and Polygraph examination.

These forms of testing which are against the will of the accused would be violative of Article 20 (3) of the Constitution of India, 1950. Article 20 (3) deals with the right against self-incrimination and aims to prevent the forcible 'conveyance of personal knowledge that is relevant to the facts in issue'. It states that "no person accused of any offence shall be compelled to be a witness against himself". Thus, the tests that could expose a person to criminal charges, amounts to self-incrimination for the purpose of Article 20(3) and cannot be administered involuntarily. The protective scope of Article 20(3) extends to the investigative stage in criminal cases. An accused is entitled to some protection by having a choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. The compulsory administration of these techniques violates Article 20(3), since the underlying rationale of the right against self-incrimination is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. Section 24 (8) of the Indian Evidence Act, 1872 states that confessions caused by inducement, threat or promise are inadmissible in a court of law. Thus, the use of these forms of testing, if forced upon an accused, would amount to an encroachment of an individual's rights, liberties and freedom.

The Apex Court's view on Narco Analysis test, Brain Mapping test and Polygraph examination.

The case of Selvi & Ors. Versus The State of Karnataka¹ pertains to the legality of Narco Analysis test, Brain Mapping test and Polygraph examination. The main point of contemplation was the need for effective ways of investigation while balancing the right to personal liberty. The appeal was filed to challenge the involuntary administration of techniques as it is a violative of the right against self-incrimination as envisaged under Article 20 (3) of the Constitution of India, 1950. The appellant in this case contended that subjecting an accused to such tests is a violation of their fundamental rights, whereas the State contended that since it is their duty to perform an effective investigation and these tests help in bringing home the prosecution's case, the involuntary administration of these techniques ought to be a reasonable restriction on 'personal liberty' and should be admissible in a court of law.

The Apex Court placed reliance on various authorities including precedents from the United States of America and Canada. The three-judge bench held that the involuntary administration of these diagnostic techniques would amount to 'testimonial compulsion' which triggers the protection under Article 20(3) of the Constitution of India, 1950. It further held that these techniques cannot be used in a court of law as they have been obtained through compulsion. An accused or a witness cannot be made to forcefully undergo any of these tests. No technical justification can be legitimate that permits invasion into a person's mental privacy. The Apex Court further held that the use of these techniques is against the principle of right to fair trial. It rightly observed that these techniques cannot be made a reasonable restriction on personal liberty and the invocations of a compelling public interest cannot justify the dilution of the constitutional right against self-incrimination.

Although the use of these techniques is not admissible in a court of law, the Apex Court did leave scope for voluntary administration of the tests in regard to criminal investigation if the correct measures are in place. Section 27 of Evidence Act, 1872 permits the derivative use of custodial statements in the ordinary course of events and are not within the prohibition under Article 20(3) unless compulsion has been used in obtaining the information. Thus, any information or material that is subsequently discovered, basis the result of the voluntary administered test can be admitted in accordance with Section 27 of the Evidence Act, 1972. However, before the accused agrees to go through any of the tests, his/her lawyer and the concerned police should explain the physical, legal and emotional implications of the test. If subsequently, the accused agrees to subject himself/herself to the tests, his/her consent must be recorded before a judicial magistrate.

Recent Case Law

The High Court of Kerala in Louis versus The State of Kerala², rejected the petition of an accused who was seeking the Court's permission to voluntarily undergo a Narco Analysis test to support his statement under Section 313 of the Code of Criminal Procedure, 1973 to prove his innocence. The Court held that the revelations brought out during the Narco Analysis Test is under the influence of a particular drug and cannot be taken as a conscious act or a statement given by a person. The Court further held that there is a possibility of the accused himself making exculpatory statements to support his defence and there is no mechanism nor is the investigating agency equipped to assess the credibility of such revelations of the accused. Thus the Court concluded that such evidence to corroborate a statement under Section 313 of the Code of Criminal Procedure, 1973 is not sustainable in law.

Conclusion

The Apex Court clearly emphasized that no individual should be forcibly subjected to Narco Analysis test, Brain Mapping test or Polygraph examination, whether in the context of investigation in criminal cases or otherwise. If the techniques are forced upon a subject, it would be considered as an unwarranted intrusion into personal liberty. Room has however been left for the voluntary administration of these techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of the results of a voluntary administered test can be admitted, in accordance with Section 27 of the Evidence Act, 1872.

By - Lakshmi Raman & Vedanta Kishanchandani