Selvi
& Ors. Vs. State of Karnataka & ANR. [2010] INSC 340 (5 May 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 1267
of 2004 Smt. Selvi & Ors. ... Appellants Versus State of Karnataka
...Respondent With Criminal Appeal Nos. 54 of 2005, 55 of 2005, 56-57 of 2005,
58-59 of 2005, 1199 of 2006, 1471 of 2007, and Nos.987 &
990 of
2010 [Arising out of SLP (Crl.) Nos. 10 of 2006 and 6711 of 2007]
K.G.
Balakrishnan, C.J.I.
Leave
granted in SLP (Crl.) Nos. 10 of 2006 and 6711 of 2007.
1. The
legal questions in this batch of criminal appeals relate to the involuntary
administration of certain scientific techniques, namely narcoanalysis,
polygraph examination and the Brain Electrical Activation Profile (BEAP) test
for the 1 purpose of improving investigation efforts in criminal cases.
This
issue has received considerable attention since it involves tensions between
the desirability of efficient investigation and the preservation of individual
liberties. Ordinarily the judicial task is that of evaluating the rival
contentions in order to arrive at a sound conclusion. However, the present case
is not an ordinary dispute between private parties. It raises pertinent
questions about the meaning and scope of fundamental rights which are available
to all citizens. Therefore, we must examine the implications of permitting the
use of the impugned techniques in a variety of settings.
2.
Objections have been raised in respect of instances where individuals who are
the accused, suspects or witnesses in an investigation have been subjected to
these tests without their consent. Such measures have been defended by citing
the importance of extracting information which could help the investigating
agencies to prevent criminal activities in the future as well as in
circumstances where it is difficult to gather evidence through ordinary means.
In some of the 2 impugned judgments, reliance has been placed on certain provisions
of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens
to fully co-operate with investigation agencies. It has also been urged that
administering these techniques does not cause any bodily harm and that the
extracted information will be used only for strengthening investigation efforts
and will not be admitted as evidence during the trial stage. The assertion is
that improvements in fact-finding during the investigation stage will
consequently help to increase the rate of prosecution as well as the rate of
acquittal. Yet another line of reasoning is that these scientific techniques
are a softer alternative to the regrettable and allegedly widespread use of
`third degree methods' by investigators.
3. The
involuntary administration of the impugned techniques prompts questions about
the protective scope of the `right against self-incrimination' which finds
place in Article 20(3) of our Constitution. In one of the impugned judgments,
it has 3 been held that the information extracted through methods such as
`polygraph examination' and the `Brain Electrical Activation Profile (BEAP)
test' cannot be equated with `testimonial compulsion' because the test subject
is not required to give verbal answers, thereby falling outside the protective
scope of Article 20(3). It was further ruled that the verbal revelations made
during a narcoanalysis test do not attract the bar of Article 20(3) since the
inculpatory or exculpatory nature of these revelations is not known at the time
of conducting the test. To address these questions among others, it is
necessary to inquire into the historical origins and rationale behind the `right
against self-incrimination'. The principal questions are whether this right
extends to the investigation stage and whether the test results are of a
`testimonial' character, thereby attracting the protection of Article 20(3).
Furthermore, we must examine whether relying on the test results or materials
discovered with the help of the same creates a reasonable likelihood of
incrimination for the test subject.
4. We
must also deal with arguments invoking the guarantee of `substantive due
process' which is part and parcel of the idea of `personal liberty' protected
by Article 21 of the Constitution. The first question in this regard is whether
the provisions in the Code of Criminal Procedure, 1973 that provide for
`medical examination' during the course of investigation can be read
expansively to include the impugned techniques, even though the latter are not
explicitly enumerated. To answer this question, it will be necessary to discuss
the principles governing the interpretation of statutes in light of scientific
advancements. Questions have also been raised with respect to the professional
ethics of medical personnel involved in the administration of these techniques.
Furthermore,
Article 21 has been judicially expanded to include a `right against cruel, inhuman
or degrading treatment', which requires us to determine whether the involuntary
administration of the impugned techniques violates this right whose scope
corresponds with evolving international human rights norms. We must also
consider 5 contentions that have invoked the test subject's `right to privacy',
both in a physical and mental sense.
5. The
scientific validity of the impugned techniques has been questioned and it is
argued that their results are not entirely reliable. For instance, the narco analysis
technique involves the intravenous administration of sodium pentothal, a drug
which lowers inhibitions on part of the subject and induces the person to talk
freely. However, empirical studies suggest that the drug-induced revelations
need not necessarily be true.
Polygraph
examination and the BEAP test are methods which serve the respective purposes
of lie-detection and gauging the subject's familiarity with information related
to the crime.
These
techniques are essentially confirmatory in nature, wherein inferences are drawn
from the physiological responses of the subject. However, the reliability of
these methods has been repeatedly questioned in empirical studies. In the
context of criminal cases, the reliability of scientific evidence bears a
causal link with several dimensions of the right to a fair trial such as the
requisite standard of proving guilt beyond 6 reasonable doubt and the right of
the accused to present a defence. We must be mindful of the fact that these
requirements have long been recognised as components of `personal liberty'
under Article 21 of the Constitution. Hence it will be instructive to gather
some insights about the admissibility of scientific evidence.
6. In the
course of the proceedings before this Court, oral submissions were made by Mr.
Rajesh Mahale, Adv. (Crl. App.
No. 1267
of 2004), Mr. Manoj Goel, Adv. (Crl. App. Nos. 56-57 of 2005), Mr. Santosh
Paul, Adv. (Crl. App. No. 54 of 2005) and Mr. Harish Salve, Sr. Adv. (Crl. App.
Nos. 1199 of 2006 and No. 1471 of 2007) - all of whom argued against the
involuntary administration of the impugned techniques.
Arguments
defending the compulsory administration of these techniques were presented by
Mr. Goolam E. Vahanvati, Solicitor General of India [now Attorney General for
India] and Mr. Anoop G. Choudhari, Sr. Adv. who appeared on behalf of the Union
of India. These were further supported by Mr. T.R. Andhyarujina, Sr. Adv. who
appeared on behalf of the Central 7 Bureau of Investigation (CBI) and Mr.
Sanjay Hegde, Adv. who represented the State of Karnataka. Mr. Dushyant Dave,
Sr. Adv., rendered assistance as amicus curiae in this matter.
7. At
this stage, it will be useful to frame the questions of law and outline the
relevant sub-questions in the following manner:
I.
Whether the involuntary administration of the impugned techniques violates the
`right against self-incrimination' enumerated in Article 20(3) of the
Constitution? I-A. Whether the investigative use of the impugned techniques
creates a likelihood of incrimination for the subject? I-B. Whether the results
derived from the impugned techniques amount to `testimonial compulsion' thereby
attracting the bar of Article 20(3)? 8 II. Whether the involuntary
administration of the impugned techniques is a reasonable restriction on
`personal liberty' as understood in the context of Article 21 of the
Constitution?
8. Before
answering these questions, it is necessary to examine the evolution and
specific uses of the impugned techniques. Hence, a description of each of the
test procedures is followed by an overview of their possible uses, both within
and outside the criminal justice system. It is also necessary to gauge the
limitations of these techniques. Owing to the dearth of Indian decisions on
this subject, we must look to precedents from foreign jurisdictions which deal
with the application of these techniques in the area of criminal justice.
DESCRIPTIONS
OF TESTS - USES, LIMITATIONS AND PRECEDENTS Polygraph Examination
9. The
origins of polygraph examination have been traced back to the efforts of
Lombroso, a criminologist who experimented 9 with a machine that measured blood
pressure and pulse to assess the honesty of persons suspected of criminal
conduct.
His
device was called a hydrosphygmograph. A similar device was used by
psychologist William Marston during World War I in espionage cases, which
proved to be a precursor to its use in the criminal justice system. In 1921,
John Larson incorporated the measurement of respiration rate and by 1939
Leonard Keeler added skin conductance and an amplifier to the parameters
examined by a polygraph machine.
10. The
theory behind polygraph tests is that when a subject is lying in response to a
question, he/she will produce physiological responses that are different from
those that arise in the normal course. During the polygraph examination,
several instruments are attached to the subject for measuring and recording the
physiological responses. The examiner then reads these results, analyzes them
and proceeds to gauge the credibility of the subject's answers. Instruments
such as cardiographs, pneumographs, cardio-cuffs and sensitive electrodes are
used in the course of polygraph examinations.
10 They
measure changes in aspects such as respiration, blood pressure, blood flow,
pulse and galvanic skin resistance. The truthfulness or falsity on part of the
subject is assessed by relying on the records of the physiological responses.
[See:
Laboratory
Procedure Manual - Polygraph Examination (Directorate of Forensic Science,
Ministry of Home Affairs, Government of India, New Delhi - 2005)]
11. There
are three prominent polygraph examination techniques:
i. The
relevant-irrelevant (R-I) technique ii. The control question (CQ) technique
iii. Directed Lie-Control (DLC) technique Each of these techniques includes a
pre-test interview during which the subject is acquainted with the test
procedure and the examiner gathers the information which is needed to finalize
the questions that are to be asked. An important objective of this exercise is
to mitigate the possibility of a feeling of surprise on part of the subject
which could be triggered by unexpected questions. This is significant because
11 an expression of surprise could be mistaken for physiological responses that
are similar to those associated with deception.
[Refer:
David Gallai, `Polygraph evidence in federal courts:
Should it
be admissible?' 36 American Criminal Law Review 87-116 (Winter 1999) at p. 91].
Needless to say, the polygraph examiner should be familiar with the details of
the ongoing investigation. To meet this end the investigators are required to
share copies of documents such as the First Information Report (FIR),
Medico-Legal Reports (MLR) and Post-Mortem Reports (PMR) depending on the
nature of the facts being investigated.
12. The
control-question (CQ) technique is the most commonly used one and its procedure
as well as scoring system has been described in the materials submitted on
behalf of CBI. The test consists of control questions and relevant questions.
The control questions are irrelevant to the facts being investigated but they
are intended to provoke distinct physiological responses, as well as false
denials. These responses are compared with the responses triggered by the
relevant 12 questions. Theoretically, a truthful subject will show greater
physiological responses to the control questions which he/she has reluctantly
answered falsely, than to the relevant questions, which the subject can easily
answer truthfully.
Conversely,
a deceptive subject will show greater physiological responses while giving
false answers to relevant questions in comparison to the responses triggered by
false answers to control questions. In other words, a guilty subject is more
likely to be concerned with lying about the relevant facts as opposed to lying
about other facts in general. An innocent subject will have no trouble in
truthfully answering the relevant questions but will have trouble in giving
false answers to control questions. The scoring of the tests is done by
assigning a numerical value, positive or negative, to each response given by
the subject. After accounting for all the numbers, the result is compared to a
standard numerical value to indicate the overall level of deception. The net
conclusion may indicate truth, deception or uncertainty.
13. The
use of polygraph examinations in the criminal justice system has been
contentious. In this case, we are mainly considered with situations when
investigators seek reliance on these tests to detect deception or to verify the
truth of previous testimonies. Furthermore, litigation related to polygraph
tests has also involved situations where suspects and defendants in criminal
cases have sought reliance on them to demonstrate their innocence. It is also
conceivable that witnesses can be compelled to undergo polygraph tests in order
to test the credibility of their testimonies or to question their mental
capacity or to even attack their character.
14.
Another controversial use of polygraph tests has been on victims of sexual
offences for testing the veracity of their allegations. While several states in
the U.S.A. have enacted provisions to prohibit such use, the text of the
Laboratory Procedure Manual for Polygraph Examination [supra.] indicates that
this is an acceptable use. In this regard, Para 3.4 (v) of the said Manual
reads as follows:
14
"(v) In cases of alleged sex offences such as intercourse with a female
child, forcible rape, indecent liberties or perversion, it is important that
the victim, as well as the accused, be made available for interview and
polygraph examination. It is essential that the polygraph examiner get a first
hand detailed statement from the victim, and the interview of the victim
precede that of the suspect or witnesses. ..."
[The
following article includes a table which lists out the statutorily permissible
uses of polygraph examination in the different state jurisdictions of the
United States of America:
Henry T.
Greely and Judy Illes, `Neuroscience based lie- detection: The urgent need for
regulation', 33 American Journal of Law and Medicine, 377-421 (2007)]
15. The
propriety of compelling the victims of sexual offences to undergo a polygraph
examination certainly merits consideration in the present case. It must also be
noted that in some jurisdictions polygraph tests have been permitted for the
purpose of screening public employees, both at the stage of recruitment and at
regular intervals during the service-period.
In the
U.S.A., the widespread acceptance of polygraph tests for checking the
antecedents and monitoring the conduct of 15 public employees has encouraged
private employers to resort to the same. In fact the Employee Polygraph
Protection Act, 1998 was designed to restrict their use for employee screening.
This
development must be noted because the unqualified acceptance of `Lie-detector
tests' in India's criminal justice system could have the unintended consequence
of encouraging their use by private parties.
16.
Polygraph tests have several limitations and therefore a margin for errors. The
premise behind these tests is questionable because the measured changes in
physiological responses are not necessarily triggered by lying or deception.
Instead,
they could be triggered by nervousness, anxiety, fear, confusion or other
emotions. Furthermore, the physical conditions in the polygraph examination
room can also create distortions in the recorded responses. The test is best
administered in comfortable surroundings where there are no potential
distractions for the subject and complete privacy is maintained. The mental
state of the subject is also vital since a person in a state of depression or
hyperactivity is likely to 16 offer highly disparate physiological responses
which could mislead the examiner. In some cases the subject may have suffered
from loss of memory in the intervening time-period between the relevant act and
the conduct of the test. When the subject does not remember the facts in
question, there will be no self-awareness of truth or deception and hence the
recording of the physiological responses will not be helpful.
Errors
may also result from `memory-hardening', i.e. a process by which the subject
has created and consolidated false memories about a particular incident. This
commonly occurs in respect of recollections of traumatic events and the subject
may not be aware of the fact that he/she is lying.
17. The
errors associated with polygraph tests are broadly grouped into two categories,
i.e., `false positives' and `false negatives'. A `false positive' occurs when
the results indicate that a person has been deceitful even though he/she
answered truthfully. Conversely a `false negative' occurs when a set of
deceptive responses is reported as truthful. On account of such inherent
complexities, the qualifications and competence 17 of the polygraph examiner
are of the utmost importance. The examiner needs to be thorough in preparing
the questionnaire and must also have the expertise to account for extraneous
conditions that could lead to erroneous inferences.
18.
However, the biggest concern about polygraph tests is that an examiner may not
be able to recognise deliberate attempts on part of the subject to manipulate
the test results. Such `countermeasures' are techniques which are deliberately
used by the subject to create certain physiological responses in order to
deceive the examiner. The intention is that by deliberately enhancing one's
reaction to the control questions, the examiner will incorrectly score the test
in favour of truthfulness rather than deception. The most commonly used
`countermeasures' are those of creating a false sense of mental anxiety and
stress at the time of the interview, so that the responses triggered by lying
cannot be readily distinguished.
19. Since
polygraph tests have come to be widely relied upon for employee screening in
the U.S.A., the U.S. Department of 18 Energy had requested the National
Research Council of the National Academies (NRC) to review their use for
different purposes. The following conclusion was stated in its report, i.e. The
Polygraph and Lie-Detection: Committee to Review the scientific evidence on the
Polygraph (Washington D.C.: National Academies Press, 2003) at pp. 212-213:
"Polygraph
Accuracy: Almost a century of research in scientific psychology and physiology
provides little basis for the expectation that a polygraph test could have
extremely high accuracy. The physiological responses measured by the polygraph
are not uniquely related to deception. That is, the responses measured by the
polygraph do not all reflect a single underlying process: a variety of
psychological and physiological processes, including some that can be
consciously controlled, can affect polygraph measures and test results.
Moreover, most polygraph testing procedures allow for uncontrolled variation in
test administration (e.g., creation of the emotional climate, selecting
questions) that can be expected to result in variations in accuracy and that
limit the level of accuracy that can be consistently achieved.
Theoretical
Basis: The theoretical rationale for the polygraph is quite weak, especially in
terms of differential fear, arousal, or other emotional states that are
triggered in response to relevant or comparison questions. We have not found
any serious effort at construct validation of polygraph testing.
Research
Progress: Research on the polygraph has not progressed over time in the manner
of a typical scientific field. It has not accumulated knowledge or strengthened
its scientific underpinnings in any significant manner.
19
Polygraph research has proceeded in relative isolation from related fields of
basic science and has benefited little from conceptual, theoretical, and
technological advances in those fields that are relevant to the
psychophysiological detection of deception.
Future
Potential: The inherent ambiguity of the physiological measures used in the
polygraph suggests that further investments in improving polygraph technique
and interpretation will bring only modest improvements in accuracy."
20. A
Working Party of the British Psychological Society (BPS) also came to a similar
conclusion in a study published in 2004. The key finding is reproduced below,
[Cited from: A Review of the current scientific status and fields of
application of polygraph deception detection - Final Report (6 October, 2004)
from The British Psychological Society (BPS) Working Party at p. 10]:
"A
polygraph is sometimes called a lie detector, but this term is misleading. A
polygraph does not detect lies, but only arousal which is assumed to accompany
telling a lie.
Polygraph
examiners have no other option than to measure deception in such an indirect
way, as a pattern of physiological activity directly related to lying does not
exist (Saxe, 1991). Three of the four most popular lie detection procedures
using the polygraph (Relevant/Irrelevant Test, Control Question Test and
Directed Lie Test, ...) are built upon the premise that, while answering
so-called `relevant' questions, liars will 20 be more aroused than while
answering so-called `control' questions, due to a fear of detection (fear of
getting caught lying). This premise is somewhat naive as truth tellers may also
be more aroused when answering the relevant questions, particularly: (i) when
these relevant questions are emotion evoking questions (e.g. when an innocent
man, suspected of murdering his beloved wife, is asked questions about his wife
in a polygraph test, the memory of his late wife might re-awaken his strong
feelings about her); and (ii) when the innocent examinee experiences fear,
which may occur, for example, when the person is afraid that his or her honest
answers will not be believed by the polygraph examiner. The other popular test
(Guilty Knowledge Test, ...) is built upon the premise that guilty examinees
will be more aroused concerning certain information due to different orienting
reactions, that is, they will show enhanced orienting responses when
recognising crucial details of a crime.
This
premise has strong support in psychophysiological research (Fiedler, Schmidt
& Stahl, 2002)."
21.
Coming to judicial precedents, a decision reported as Frye v. United States,
(1923) 54 App DC 46, dealt with a precursor to the polygraph which detected
deception by measuring changes in systolic blood pressure. In that case the
defendant was subjected to this test before the trial and his counsel had
requested the court that the scientist who had conducted the same should be
allowed to give expert testimony about the results. Both the trial court and
the appellate court rejected the request for admitting such testimony. The
appellate court 21 identified the considerations that would govern the
admissibility of expert testimony based on scientific insights. It was held,
Id. at p. 47:
"...
Just when a scientific principle or discovery crosses the line between the experimental
and demonstrable stages is difficult to define. Somewhere in this twilight zone
the evidential force of the principle must be recognized, and while courts will
go a long way in admitting expert testimony deduced from a well- recognized
scientific principle or discovery, the thing from which the deduction is made
must be sufficiently established to have gained general acceptance in the
particular field in which it belongs.
We think
the systolic blood pressure deception test has not yet gained such standing and
scientific recognition among physiological and psychological authorities as
would justify the courts in admitting expert testimony deduced from the
discovery, development, and experiments thus far made."
22. The
standard of `general acceptance in the particular field' governed the
admissibility of scientific evidence for several decades. It was changed much
later by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc.,
509 US 579 (1993). In that case the petitioners had instituted proceedings
against a pharmaceutical company which had marketed `Bendectin', a prescription
drug. They had alleged 22 that the ingestion of this drug by expecting mothers
had caused birth defects in the children born to them. To contest these allegations,
the pharmaceutical company had submitted an affidavit authored by an
epidemiologist. The petitioners had also submitted expert opinion testimony in
support of their contentions. The District Court had ruled in favour of the
company by ruling that their scientific evidence met the standard of `general
acceptance in the particular field' whereas the expert opinion testimony
produced on behalf of the petitioners did not meet the said standard. The Court
of Appeals for the Ninth Circuit upheld the judgment and the case reached the
U.S. Supreme Court which vacated the appellate court's judgment and remanded
the case back to the trial court. It was unanimously held that the `general
acceptance' standard articulated in Frye (supra.) had since been displaced by
the enactment of the Federal Rules of Evidence in 1975, wherein Rule 702
governed the admissibility of expert opinion testimony that was based on
scientific findings. This rule provided that:
23 If
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
23. It
was held that the trial court should have evaluated the scientific evidence as
per Rule 702 of the Federal Rules of Evidence which mandates an inquiry into
the relevance as well as the reliability of the scientific technique in
question. The majority opinion (Blackmun, J.) noted that the trial judge's
first step should be a preliminary assessment of whether the testimony's
underlying reasoning or methodology is scientifically valid and whether it can
be properly applied to the facts in issue. Several other considerations will be
applicable, such as:
7 whether
the theory or technique in question can be and has been tested 7 whether it has
been subjected to peer review and publication 7 its known or potential error
rate 24 7 the existence and maintenance of standards controlling its operation
7 whether it has attracted widespread acceptance within the scientific
community
24. It
was further observed that such an inquiry should be a flexible one, and its
focus must be solely on principles and methodology, not on the conclusions that
they generate. It was reasoned that instead of the wholesale exclusion of
scientific evidence on account of the high threshold of proving `general
acceptance in the particular field', the same could be admitted and then
challenged through conventional methods such as cross-examination, presentation
of contrary evidence and careful instructions to juries about the burden of
proof. In this regard, the trial judge is expected to perform a `gate-keeping'
role to decide on the admission of expert testimony based on scientific
techniques. It should also be kept in mind that Rule 403 of the Federal Rules
of Evidence, 1975 empowers a trial judge to exclude any form of evidence if it
is found that its probative value will be outweighed by its prejudicial effect.
25. Prior
to the Daubert decision (supra.), most jurisdictions in the U.S.A. had
disapproved of the use of polygraph tests in criminal cases. Some State
jurisdictions had absolutely prohibited the admission of polygraph test
results, while a few had allowed consideration of the same if certain
conditions were met. These conditions included a prior stipulation between the
parties to undergo these tests with procedural safeguards such as the
involvement of experienced examiners, presence of counsel and proper recording
to enable subsequent scrutiny. A dissonance had also emerged in the treatment
of polygraph test results in the different Circuit jurisdictions, with some
jurisdictions giving trial judges the discretion to enquire into the reliability
of polygraph test results on a case-by-case basis.
26. For
example, in United States v. Piccinonna, 885 F.2d 1529 (11th Circ. 1989), it
was noted that in some instances polygraphy satisfied the standard of `general
acceptance in the particular field' as required by Frye (supra.). It was held
that 26 polygraph testimony could be admissible under two situations, namely
when the parties themselves agree on a stipulation to this effect or for the
purpose of impeaching and corroborating the testimony of witnesses. It was
clarified that polygraph examination results could not be directly used to
bolster the testimony of a witness. However, they could be used to attack the
credibility of a witness or even to rehabilitate one after his/her credibility
has been attacked by the other side.
Despite
these observations, the trial court did not admit the polygraph results on
remand in this particular case.
27.
However, after Daubert (supra.) prescribed a more liberal criterion for
determining the admissibility of scientific evidence, some Courts ruled that
weightage could be given to polygraph results. For instance in United States v.
Posado, 57 F.3d 428 (5th Circ. 1995), the facts related to a pre-trial
evidentiary hearing where the defendants had asked for the exclusion of
forty-four kilograms of cocaine that had been recovered from their luggage at
an airport. The District Court had refused to consider polygraph evidence given
by the 27 defendants in support of their version of events leading up to the
seizure of the drugs and their arrest. On appeal, the Fifth Circuit Court held
that the rationale for disregarding polygraph evidence did not survive the
Daubert decision. The Court proceeded to remand the case to the trial court and
directed that the admissibility of the polygraph results should be assessed as
per the factors enumerated in Daubert (supra.). It was held, Id. at p. 434:
"There
can be no doubt that tremendous advances have been made in polygraph
instrumentation and technique in the years since Frye. The test at issue in
Frye measured only changes in the subject's systolic blood pressure in response
to test questions. [Frye v. United States ...] Modern instrumentation detects
changes in the subject's blood pressure, pulse, thoracic and abdominal respiration,
and galvanic skin response. Current research indicates that, when given under
controlled conditions, the polygraph technique accurately predicts truth or
deception between seventy and ninety percent of the time. Remaining controversy
about test accuracy is almost unanimously attributed to variations in the
integrity of the testing environment and the qualifications of the examiner.
Such variation also exists in many of the disciplines and for much of the
scientific evidence we routinely find admissible under Rule 702. [See McCormick
on Evidence 206 at 915 & n. 57] Further, there is good indication that
polygraph technique and the requirements for professional polygraphists are
becoming progressively more standardized. In addition, polygraph technique has
been and continues to be subjected to extensive study and publication. Finally,
polygraph is 28 now so widely used by employers and government agencies alike.
To
iterate, we do not now hold that polygraph examinations are scientifically
valid or that they will always assist the trier of fact, in this or any other
individual case. We merely remove the obstacle of the per se rule against
admissibility, which was based on antiquated concepts about the technical
ability of the polygraph and legal precepts that have been expressly overruled
by the Supreme Court."
(internal
citations omitted)
28.
Despite these favourable observations, the polygraph results were excluded by
the District Court on remand.
However,
we have come across at least one case decided after Daubert (supra.) where a
trial court had admitted expert opinion testimony about polygraph results. In
United States v. Galbreth, 908 F. Supp 877 (D.N.M. 1995), the District Court
took note of New Mexico Rule of Evidence 11-707 which established standards for
the admission of polygraph evidence.
The said
provision laid down that polygraph evidence would be admissible only when the
following conditions are met: the examiner must have had at least 5 years
experience in conducting polygraph tests and 20 hours of continuing education
within the past year; the polygraph examination 29 must be tape recorded in its
entirety; the polygraph charts must be scored quantitatively in a manner
generally accepted as reliable by polygraph experts; all polygraph materials
must be provided to the opposing party at least 10 days before trial;
and all
polygraph examinations conducted on the subject must be disclosed. It was found
that all of these requirements had been complied with in the facts at hand. The
District Court concluded with these words, Id. at p. 896:
"...
the Court finds that the expert opinion testimony regarding the polygraph
results of defendant Galbreth is admissible. However, because the evidentiary
reliability of opinion testimony regarding the results of a particular
polygraph test is dependent upon a properly conducted examination by a highly
qualified, experienced and skilful examiner, nothing in this opinion is
intended to reflect the judgment that polygraph results are per se admissible.
Rather, in the context of the polygraph technique, trial courts must engage
upon a case specific inquiry to determine the admissibility of such
testimony."
29. We
were also alerted to the decision in United States v. Cordoba, 104 F.3d 225
(9th. Circ. 1997). In that case, the Ninth Circuit Court concluded that the
position favouring absolute exclusion of unstipulated polygraph evidence had
effectively been overruled in Daubert (supra.). The defendant 30 had been convicted
for the possession and distribution of cocaine since the drugs had been
recovered from a van which he had been driving. However, when he took an
unstipulated polygraph test, the results suggested that he was not aware of the
presence of drugs in the van. At the trial stage, the prosecution had moved to
suppress the test results and the District Court had accordingly excluded the
polygraph evidence. However, the Ninth Circuit Court remanded the case back
after finding that the trial judge should have adopted the parameters
enumerated in Daubert (supra.) to decide on the admissibility of the polygraph
test results. It was observed, Id.
at p.
228:
"With
this holding, we are not expressing new enthusiasm for admission of
unstipulated polygraph evidence. The inherent problematic nature of such
evidence remains. As we noted in Brown, polygraph evidence has grave potential
for interfering with the deliberative process. [Brown v. Darcy, 783 F.2d 1389
(9th Circ. 1986) at 1396-1397] However, these matters are for determination by
the trial judge who must not only evaluate the evidence under Rule 702, but
consider admission under Rule 403. Thus, we adopt the view of Judge Jameson's
dissent in Brown that these are matters which must be left to the sound
discretion of the trial court, consistent with Daubert standards."
30. The
decisions cited above had led to some uncertainty about the admissibility of
polygraph test results. However, this uncertainty was laid to rest by an
authoritative ruling of the U.S. Supreme Court in United States v. Scheffer,
523 US 303 (1998). In that case, an eight judge majority decided that Military
Rule of Evidence 707 (which made polygraph results inadmissible in
court-martial proceedings) did not violate an accused person's Sixth Amendment
right to present a defence.
The
relevant part of the provision follows:
"(a)
Notwithstanding any other provision of law, the results of a polygraph
examination, the opinion of a polygraph examiner, or any reference to an offer
to take, failure to take, or taking of a polygraph examination, shall not be
admitted into evidence."
31. The
facts were that Scheffer, a U.S. Air Force serviceman had faced court-martial
proceedings because a routine urinalysis showed that he had consumed
methamphetamines.
However,
a polygraph test suggested that he had been truthful in denying the intentional
consumption of the drugs. His defence of `innocent ingestion' was not accepted
during the court-martial proceedings and the polygraph results were not 32
admitted in evidence. The Air Force Court of Criminal Appeals affirmed the
decision given in the court-martial proceedings but the Court of Appeals for
the Armed Forces reversed the same by holding that an absolute exclusion of
polygraph evidence (offered to rebut an attack on the credibility of the
accused) would violate Scheffer's Sixth Amendment right to present a defence.
Hence, the matter reached the Supreme Court which decided that the exclusion of
polygraph evidence did not violate the said constitutional right.
32. Eight
judges agreed that testimony about polygraph test results should not be
admissible on account of the inherent unreliability of the results obtained.
Four judges agreed that reliance on polygraph results would displace the
fact-finding role of the jury and lead to collateral litigation. In the words
of Clarence Thomas, J., Id. at p. 309:
"Rule
707 serves several legitimate interests in the criminal trial process. These
interests include ensuring that only reliable evidence is introduced at trial,
preserving the jury's role in determining credibility, and avoiding litigation
that is collateral to the primary purpose of the trial. The rule is neither
arbitrary nor disproportionate in promoting these ends. Nor does it 33
implicate a sufficiently weighty interest of the defendant to raise a
constitutional concern under our precedents."
33. On
the issue of reliability, the Court took note of some Circuit Court decisions
which had permitted trial courts to consider polygraph results in accordance
with the Daubert factors. However, the following stance was adopted, Id. at p.
"...
Although the degree of reliability of polygraph evidence may depend upon a
variety of identifiable factors, there is simply no way to know in a particular
case whether a polygraph examiner's conclusion is accurate, because certain
doubts and uncertainties plague even the best polygraph exams. Individual
jurisdictions therefore may reasonably reach differing conclusions as to
whether polygraph evidence should be admitted. We cannot say, then, that
presented with such widespread uncertainty, the President acted arbitrarily or
disproportionately in promulgating a per se rule excluding all polygraph
evidence."
34. Since
a trial by jury is an essential feature of the criminal justice system in the
U.S.A., concerns were expressed about preserving the jury's core function of
determining the credibility of testimony. It was observed, Id. at p. 314:
"
... Unlike other expert witnesses who testify about factual matters outside the
jurors' knowledge, such as the analysis of fingerprints, ballistics, or DNA
found at a crime scene, a polygraph expert can supply the jury only 34 with
another opinion, in addition to its own, about whether the witness was telling
the truth. Jurisdictions, in promulgating rules of evidence, may legitimately
be concerned about the risk that juries will give excessive weight to the
opinions of a polygrapher, clothed as they are in scientific expertise and at
times offering, as in respondent's case, a conclusion about the ultimate issue
in the trial. Such jurisdictions may legitimately determine that the aura of
infallibility attending polygraph evidence can lead jurors to abandon their
duty to assess credibility and guilt. ..."
35. On
the issue of encouraging litigation that is collateral to the primary purpose
of a trial, it was held, Id. at p. 314:
"...
Allowing proffers of polygraph evidence would inevitably entail assessments of
such issues as whether the test and control questions were appropriate, whether
a particular polygraph examiner was qualified and had properly interpreted the
physiological responses, and whether other factors such as countermeasures
employed by the examinee had distorted the exam results. Such assessments would
be required in each and every case. It thus offends no constitutional principle
for the President to conclude that a per se rule excluding all polygraph
evidence is appropriate. Because litigation over the admissibility of polygraph
evidence is by its very nature collateral, a per se rule prohibiting its
admission is not an arbitrary or disproportionate means of avoiding it."
36. In
the same case, Kennedy, J. filed an opinion which was joined by four judges.
While there was agreement on the questionable reliability of polygraph results,
a different stand 35 was taken on the issues pertaining to the role of the jury
and the concerns about collateral litigation. It was observed that the inherent
reliability of the test results is a sufficient ground to exclude the polygraph
test results and expert testimony related to them. Stevens, J. filed a
dissenting opinion in this case.
37. We
have also come across a decision of the Canadian Supreme Court in R v Beland,
[1987] 36 C.C.C. (3d) 481. In that case the respondents had been charged with
conspiracy to commit robbery. During their trial, one of their accomplices had
given testimony which directly implicated them. The respondents contested this
testimony and after the completion of the evidentiary phase of the trial, they
moved an application to re-open their defence while seeking permission for each
of them to undergo a polygraph examination and produce the results in evidence.
The trial judge denied this motion and the respondents were convicted. However,
the appellate court allowed their appeal from conviction and granted an order
to re-open the trial and directed that the polygraph results be 36 considered.
On further appeal, the Supreme Court of Canada held that the results of a
polygraph examination are not admissible as evidence. The majority opinion
explained that the admission of polygraph test results would offend some well
established rules of evidence. It examined the `rule against oath-helping'
which prohibits a party from presenting evidence solely for the purpose of bolstering
the credibility of a witness.
Consideration
was also given to the `rule against admission of past or out-of-court
statements by a witness' as well as the restrictions on producing `character
evidence'. The discussion also concluded that polygraph evidence is
inadmissible as `expert evidence'.
38. With
regard to the `rule against admission of past or out- of-court statements by a
witness', McIntyre, J. observed (in Para. 11):
"...
In my view, the rule against admission of consistent out-of-court statements is
soundly based and particularly apposite to questions raised in connection with
the use of the polygraph. Polygraph evidence when tendered would be entirely
self-serving and would shed no light on the real issues before the court.
Assuming, as in the case at bar, that the evidence sought to be 37 adduced
would not fall within any of the well recognized exceptions to the operation of
the rule - where it is permitted to rebut the allegation of a recent
fabrication or to show physical, mental or emotional condition - it should be
rejected. To do otherwise is to open the trial process to the time-consuming
and confusing consideration of collateral issues and to deflect the focus of
the proceedings from their fundamental issue of guilt or innocence. This view
is summarized by D.W. Elliott in `Lie-Detector Evidence: Lessons from the
American Experience' in Well and Truly Tried (Law Book Co., 1982), at pp.
129-30:
A
defendant who attempts to put in the results of a test showing this
truthfulness on the matters in issue is bound to fall foul of the rule against
self- serving statements or, as it is sometimes called, the rule that a party
cannot manufacture evidence for himself, and the falling foul will not be in
any mere technical sense. The rule is sometimes applied in a mechanical
unintelligent way to exclude evidence about which no realistic objection could
be raised, as the leading case, Gillie v. Posho shows; but striking down
defence polygraph evidence on this ground would be no mere technical reflex action
of legal obscurantists. The policy behind the doctrine is a fundamental one,
and defence polygraph evidence usually offends it fundamentally. As some judges
have pointed out, only those defendants who successfully take examinations are
likely to want the results admitted. There is no compulsion to put in the first
test results obtained. A defendant can take the test many times, if necessary
"examiner- shopping", until he gets a result which suits him.
Even
stipulated tests are not free of this taint, because of course his lawyers will
advise him to have several secret trial runs before the prosecution is
approached. If nothing else, the dry runs will habituate him to the process and
to the expected relevant questions."
39. On
the possibility of using polygraph test results as character evidence, it was
observed (Para. 14):
"...
What is the consequence of this rule in relation to polygraph evidence? Where
such evidence is sought to be introduced it is the operator who would be called
as the witness and it is clear, of course, that the purpose of his evidence
would be to bolster the credibility of the accused and, in effect, to show him
to be of good character by inviting the inference that he did not lie during
the test.
In other
words, it is evidence not of general reputation but of a specific incident and
its admission would be precluded under the rule. It would follow, then, that
the introduction of evidence of the polygraph tests would violate the character
evidence rule."
40.
Mcintyre, J. offered the following conclusions (at Paras. 18, 19 and 20):
"18.
In conclusion, it is my opinion, based upon a consideration of rules of
evidence long established and applied in our courts, that the polygraph has no
place in the judicial process where it is employed as a tool to determine or to
test the credibility of witnesses. It is frequently argued that the polygraph
represents an application of modern scientific knowledge and experience to the
task of determining the veracity of human utterances. It is said that the
courts should welcome this device and not cling to the imperfect methods of the
past in such an important task. This argument has a superficial appeal, but, in
my view, it cannot prevail in the face of realities of court procedures.
19. I
would say at once that this view is not based on a fear of the inaccuracies of
the polygraph. On that 39 question we were not supplied with sufficient
evidence to reach a conclusion. However, it may be said that even the finding
of a significant percentage of errors in its results would not, by itself, be
sufficient ground to exclude it as an instrument for use in the courts. Error
is inherent in human affairs, scientific or unscientific. It exists within our
established court procedures and must always be guarded against. The compelling
reason, in my view, for the exclusion of the evidence of polygraph results in
judicial proceedings is two-fold. First, the admission of polygraph evidence
would run counter to the well established rules of evidence which have been
referred to.
Second,
while there is no reason why the rules of evidence should not be modified where
improvement will result, it is my view that the admission of polygraph evidence
will serve no purpose which is not already served. It will disrupt proceedings,
cause delays, and lead to numerous complications which will result in no
greater degree of certainty in the process than that which already exists.
20. Since
litigation replaced trial by combat, the determination of fact, including the
veracity of parties and their witnesses, has been the duty of judges or juries
upon an evaluation of the statements of witnesses. This approach has led to the
development of a body of rules relating to the giving and reception of evidence
and we have developed methods which have served well and have gained a wide
measure of approval. They have facilitated the orderly conduct of judicial
proceedings and are designed to keep the focus of the proceedings on the
principal issue, in a criminal case, the guilt or innocence of the accused.
What would be served by the introduction of evidence of polygraph readings into
the judicial process? To begin with, it must be remembered that however
scientific it may be, its use in court depends on the human intervention of the
operator. Whatever results are recorded by the polygraph instrument, their
nature and significance reach the trier of fact through the mouth 40 of the
operator. Human fallibility is therefore present as before, but now it may be
said to be fortified with the mystique of science. ..."
Narcoanalysis
technique
41. This
test involves the intravenous administration of a drug that causes the subject
to enter into a hypnotic trance and become less inhibited. The drug-induced
hypnotic stage is useful for investigators since it makes the subject more
likely to divulge information. The drug used for this test is sodium pentothal,
higher quantities of which are routinely used for inducing general anaesthesia
in surgical procedures. This drug is also used in the field of psychiatry since
the revelations can enable the diagnosis of mental disorders.
However,
we have to decide on the permissibility of resorting to this technique during a
criminal investigation, despite its' established uses in the medical field. The
use of `truth-serums' and hypnosis is not a recent development. Earlier
versions of the narcoanalysis technique utilised substances such as scopolamine
and sodium amytal. The following extracts from an article trace the evolution
of this technique, [Cited from:
41 C.W.
Muehlberger, `Interrogation under Drug-influence: The so-called Truth serum
technique', 42(4) The Journal of Criminal Law, Criminology and Police Science
513-528 (Nov- Dec. 1951) at pp. 513-514]:
"With
the advent of anaesthesia about a century ago, it was observed that during the
induction period and particularly during the recovery interval, patients were
prone to make extremely naove remarks about personal matters, which, in their
normal state, would never have revealed.
Probably
the earliest direct attempt to utilize this phenomenon in criminal
interrogation stemmed from observations of a mild type of anaesthesia commonly
used in obstetrical practice during the period of about 1903-1915 and known as
`Twilight sleep'. This anaesthesia was obtained by hypodermic injection of
solutions of morphine and scopolamine (also called `hyoscine') followed by
intermittent chloroform inhalations if needed. The pain relieving qualities of
morphine are well known. Scopolamine appears to have the added property of
blocking out memories of recent events. By the combination of these drugs in suitable
dosage, morphine dulled labor pains without materially interfering with the
muscular contractions of labor, while scopolamine wiped out subsequent memories
of the delivery room ordeal. The technique was widely used in Europe but soon
fell into disrepute among obstetricians of this country, largely due to
overdosage.
During
the period of extensive use of `twilight sleep' it was a common experience that
women who were under drug influence, were extremely candid and uninhibited in
their statements. They often made remarks which obviously would never have been
uttered when in their 42 normal state. Dr. Robert E. House, an observant
physician practising in Ferris, Texas, believed that a drug combination which
was so effective in the removal of ordinary restraints and which produced such
utter candor, might be of value in obtaining factual information from persons
who were thought to be lying.
Dr.
House's first paper presented in 1922 suggested drug administration quite
similar to the standard `twilight sleep' procedure: an initial dose of <
grain of morphine sulphate together with 1/100 grain of scopolamine
hydrobromide, followed at 20-30 minute intervals with smaller (1/200 - 1/400
grain) doses of scopolamine and periods of light chloroform anaesthesia. Subjects
were questioned as they recovered from the light chloroform anaesthesia and
gave answers which subsequently proved to be true. Altogether, Dr. House
reported about half-a-dozen cases, several of which were instrumental in
securing the release of convicts from State prisons, he also observed that,
after returning to their normal state, these subjects had little or no
recollection of what had transpired during the period of interrogation. They
could not remember what questions had been asked, nor by whom; neither could
they recall any answers which they had made."
42. The
use of the `Scopolamine' technique led to the coining of the expression `truth
serum'. With the passage of time, injections of sodium amytal came to be used
for inducing subjects to talk freely, primarily in the field of psychiatry. The
author cited above has further observed, Id. at p. 522:
"During
World War II, this general technique of delving into a subject's inner
consciousness through the instrumentality of narcotic drugs was widely used in
the 43 treatment of war neuroses (sometimes called `Battle shock' or `shell
shock'). Fighting men who had been through terrifically disturbing experiences
often times developed symptoms of amnesia, mental withdrawal, negativity,
paralyses, or many other mental, nervous, and physical derangements. In most
instances, these patients refused to talk about the experiences which gave rise
to the difficulty, and psychiatrists were at a loss to discover the crux of the
problem. To intelligently counteract such a force, it was first necessary to
identify it. Thus, the use of sedative drugs, first to analyze the source of
disturbance (narcoanalysis) and later to obtain the proper frame of mind in
which the patient could and would `talk out' his difficulties, and, as they say
`get them off his chest' - and thus relieve himself (narco-synthesis or
narco-therapy) - was employed with signal success.
In the
narcoanalysis of war neuroses a very light narcosis is most desirable. With
small doses of injectable barbiturates (sodium amytal or sodium pentothal) or
with light inhalations of nitrous oxide or somnoform, the subject pours out his
pent-up emotions without much prodding by the interrogator."
43. It
has been shown that the Central Investigation Agency (C.I.A.) in the U.S.A. had
conducted research on the use of sodium pentothal for aiding interrogations in
intelligence and counter-terrorism operations, as early as the 1950's [See
`Project MKULTRA - The CIA's program of research in behavioral modification', On
file with Schaffer Library of Drug Policy, Text available from
<www.druglibrary.org>]. In recent 44 years, the debate over the use of
`truth-serums' has been revived with demands for their use on persons suspected
of involvement in terrorist activities. Coming to the test procedure, when the
drug (sodium pentothal) is administered intravenously, the subject ordinarily
descends into anaesthesia in four stages, namely:
(i) Awake
stage (ii) Hypnotic stage (iii) Sedative stage (iv) Anaesthetic stage
44. A relatively
lighter dose of sodium pentothal is injected to induce the `hypnotic stage' and
the questioning is conducted during the same. The hypnotic stage is maintained
for the required period by controlling the rate of administration of the drug.
As per the materials submitted before us, the behaviour exhibited by the
subject during this stage has certain specific characteristics, namely:- 7 It
facilitates handling of negative emotional responses (i.e. guilt, avoidance,
aggression, 45 frustration, non-responsiveness etc.) in a positive manner.
7 It
helps in rapid exploration and identification of underlying conflicts in the
subject's mind and unresolved feelings about past events.
7 It
induces the subject to divulge information which would usually not be revealed
in conscious awareness and it is difficult for the person to lie at this stage
7 The reversal from this stage occurs immediately when the administration of
the drug is discontinued.
[Refer:
Laboratory Procedure Manual - Forensic Narco-Analysis (Directorate of Forensic
Science, Ministry of Home Affairs, Government of India, New Delhi - 2005); Also
see John M. Macdonald, `Truth Serum', 46(2) The Journal of Criminal Law,
Criminology and Police Science 259-263 (Jul.-Aug. 1955)]
45. The
personnel involved in conducting a `narcoanalysis' interview include a forensic
psychologist, an anaesthesiologist, 46 a psychiatrist, a general physician or
other medical staff and a language interpreter if needed. Additionally a
videographer is required to create video-recordings of the test for subsequent
scrutiny. In India, this technique has been administered either inside forensic
science laboratories or in the operation theatres of recognised hospitals.
While a psychiatrist and general physician perform the preliminary function of
gauging whether the subject is mentally and physically fit to undergo the test,
the anaesthesiologist supervises the intravenous administration of the drug. It
is the forensic psychologist who actually conducts the questioning. Since the
tests are meant to aid investigation efforts, the forensic psychologist needs
to closely co-operate with the investigators in order to frame appropriate
questions.
46. This
technique can serve several ends. The revelations could help investigators to
uncover vital evidence or to corroborate pre-existing testimonies and
prosecution theories.
Narcoanalysis
tests have also been used to detect `malingering' (faking of amnesia). The
premise is that during the `hypnotic 47 stage' the subject is unable to wilfully
suppress the memories associated with the relevant facts. Thus, it has been
urged that drug-induced revelations can help to narrow down investigation
efforts, thereby saving public resources. There is of course a very real
possibility that information extracted through such interviews can lead to the
uncovering of independent evidence which may be relevant. Hence, we must
consider the implications of such derivative use of the drug- induced
revelations, even if such revelations are not admissible as evidence. We must
also account for the uses of this technique by persons other than investigators
and prosecutors. Narcoanalysis tests could be requested by defendants who want
to prove their innocence. Demands for this test could also be made for purposes
such as gauging the credibility of testimony, to refresh the memory of
witnesses or to ascertain the mental capacity of persons to stand trial.
Such uses
can have a direct impact on the efficiency of investigations as well as the
fairness of criminal trials. [See generally: George H. Dession, Lawrence Z.
Freedman, Richard C. Donnelly and Frederick G. Redlich, `Drug-Induced 48
revelation and criminal investigation', 62 Yale Law Journal 315-347 (February
1953)]
47. It is
also important to be aware of the limitations of the `narcoanalysis' technique.
It does not have an absolute success rate and there is always the possibility
that the subject will not reveal any relevant information. Some studies have
shown that most of the drug-induced revelations are not related to the relevant
facts and they are more likely to be in the nature of inconsequential
information about the subjects' personal lives. It takes great skill on part of
the interrogators to extract and identify information which could eventually
prove to be useful. While some persons are able to retain their ability to
deceive even in the hypnotic state, others can become extremely suggestible to
questioning. This is especially worrying, since investigators who are under
pressure to deliver results could frame questions in a manner that prompts
incriminatory responses. Subjects could also concoct fanciful stories in the
course of the `hypnotic stage'. Since the responses of different individuals
are bound to vary, there is 49 no uniform criteria for evaluating the efficacy
of the `narcoanalysis' technique.
48. In an
article published in 1951, C.W. Muehlberger (supra.) had described a French
case which attracted controversy in 1948. Raymond Cens, who had been accused of
being a Nazi collaborator, appeared to have suffered an apoplectic stroke which
also caused memory loss. The French Court trying the case had authorised a
board of psychiatrists to conduct an examination for ascertaining the
defendant's amnesia. The narcoanalysis technique was used in the course of the
examination and the defendant did not object to the same.
However,
the test results showed that the subject's memory was not impaired and that he
had been faking amnesia. At the trial, testimony about these findings was
admitted, thereby leading to a conviction. Subsequently, Raymond Cens filed a
civil suit against the psychiatrists alleging assault and illegal search.
However, it was decided that the board had used routine psychiatric procedures
and since the actual physical damage to the defendant was nominal, the
psychiatrists were 50 acquitted. At the time, this case created quite a stir
and the Council of the Paris Bar Association had passed a resolution against
the use of drugs during interrogation. [Refer C.W. Muehlberger (1951) at p.
527; The Raymond Cens case has also been discussed in the following article:
J.P. Gagnieur, `The Judicial use of Psychonarcosis in France', 40(3) Journal of
Criminal Law and Criminology 370-380 (Sept.-Oct. 1949)]
49. An
article published in 1961 [Andre A. Moenssens, `Narcoanalysis in Law
Enforcement', 52(4) The Journal of Criminal Law, Criminology and Police Science
453-458 (Nov.- Dec. 1961)] had surveyed some judicial precedents from the
U.S.A. which dealt with the forensic uses of the narcoanalysis technique. The
first reference is to a decision from the State of Missouri reported as State
v. Hudson, 314 Mo. 599 (1926). In that case, the defence lawyer in a
prosecution for rape attempted to rely on the expert testimony of a doctor. The
doctor in turn declared that he had questioned the defendant after injecting a
truth-serum and the defendant had denied his guilt while in a drug-induced
state. The trial court had refused 51 to admit the doctor's testimony by
finding it to be completely unreliable from a scientific viewpoint. The
appellate court upheld the finding and made the following observation, Id. at
p. 602:
"Testimony
of this character - barring the sufficient fact that it cannot be classified
otherwise than a self-serving declaration - is, in the present state of human
knowledge, unworthy of serious consideration. We are not told from what well
this serum is drawn or in what alembic its alleged truth compelling powers are
distilled.
Its
origin is as nebulous as its effect is uncertain. ..."
50. In
State v. Lindemuth, 56 N.M. 237 (1952) the testimony of a psychiatrist was not
admitted when he wanted to show that the answers given by a defendant while
under the influence of sodium pentothal supported the defendant's plea of
innocence in a murder case. The trial court's refusal to admit such testimony
was endorsed by the appellate court, and it was noted, Id. at p. 243:
"Until
the use of the drug as a means of procuring the truth from people under its
influence is accorded general scientific recognition, we are unwilling to
enlarge the already immense field where medical experts, apparently equally
qualified, express such diametrically opposed views on the same facts and
conditions, to the despair of the court reporter and the bewilderment of the
fact- finder."
51.
However, Andre Moenssens (1961) also took note of a case which appeared to
endorse an opposing view. In People v. Jones, 42 Cal. 2d 219 (1954), the trial
court overruled the prosecution's objection to the introduction of a
psychiatrist's testimony on behalf of the defendant. The psychiatrist had
conducted several tests on the defendant which included a sodium pentothal
induced interview. The Court found that this was not sufficient to exclude the
psychiatrist's testimony in its entirety. It was observed that even though the
truth of statements revealed under narcoanalysis remains uncertain, the results
of the same could be clearly distinguished from the psychiatrist's overall
conclusions which were based on the results of all the tests considered
together.
52. At
the federal level, the U.S. Court of Appeals for the Ninth Circuit dealt with a
similar issue in Lindsey v. United States, 237 F. 2d 893 (9th Circ. 1956). In
that case, the trial court had admitted a psychiatrist's opinion testimony
which was based on a clinical examination that included psychological tests and
53 a sodium pentothal induced interview. The subject of the interview was a
fifteen-year old girl who had been sexually assaulted and had subsequently
testified in a prosecution for rape. On cross-examination, the credibility of
the victim's testimony had been doubted and in an attempt to rebut the same,
the prosecution had called on the psychiatrist. On the basis of the results of
the clinical examination, the psychiatrist offered his professional opinion
that the victim had been telling the truth when she had repeated the charges
that were previously made to the police. This testimony was admitted as a prior
consistent statement to rehabilitate the witness but not considered as
substantive evidence. Furthermore, a tape recording of the psychiatrist's
interview with the girl, while she was under narcosis, was also considered as
evidence. The jury went on to record a finding of guilt. When the case was
brought in appeal before the Ninth Circuit Court, the conviction was reversed
on the ground that the defendant had been denied the `due process of law'. It
was held that before a prior consistent statement made under the influence of a
sodium pentothal injection could be admitted as evidence, it 54 should be
scientifically established that the test is absolutely accurate and reliable in
all cases. Although the value of the test in psychiatric examinations was
recognised, it was pointed out that the reliability of sodium pentothal tests
had not been sufficiently established to warrant admission of its results in
evidence. It was stated that "Scientific tests reveal that people thus
prompted to speak freely do not always tell the truth". [Cited from Andre
A. Moenssens (1961) at pp. 455- 456]
53. In
Lawrence M. Dugan v. Commonwealth of Kentucky, 333 S.W.2d. 755 (1960), the
defendant had been given a truth serum test by a psychiatrist employed by him.
The trial court refused to admit the psychiatrist's testimony which supported
the truthfulness of the defendant's statement. The defendant had pleaded
innocence by saying that a shooting which had resulted in the death of another person
had been an accident.
The trial
court's decision was affirmed on appeal and is was reasoned that no court of
last resort has recognised the admissibility of the results of truth serum
tests, the principal 55 ground being that such tests have not attained
sufficient recognition of dependability and reliability.
54. The
U.S. Supreme Court has also disapproved of the forensic uses of truth-inducing
drugs in Townsend v. Sain, 372 US 293 (1963). In that case a heroin addict was
arrested on the suspicion of having committed robbery and murder.
While in
custody he began to show severe withdrawal symptoms, following which the police
officials obtained the services of a physician. In order to treat these
withdrawal symptoms, the physician injected a combined dosage of 1/8 grain of
Phenobarbital and 1/230 grain of Hyoscine. Hyoscine is the same as
`Scopolamine' which has been described earlier.
This
dosage appeared to have a calming effect on Townsend and after the physician's
departure he promptly responded to questioning by the police and eventually
made some confessional statements. The petitioner's statements were duly
recorded by a court reporter. The next day he was taken to the office of the
prosecutor where he signed the transcriptions of the statements made by him on
the previous day. [The facts of 56 this case have also been discussed in:
Charles E. Sheedy, `Narcointerrogation of a Criminal Suspect', 50(2) The
Journal of Criminal Law, Criminology and Police Science 118-123 (July- Aug
1959) at pp. 118-119]
55. When
the case came up for trial, the counsel for the petitioner brought a motion to
exclude the transcripts of the statements from the evidence. However, the trial
judge denied this motion and admitted the court reporter's transcription of the
confessional statements into evidence. Subsequently, a jury found Townsend to
be guilty, thereby leading to his conviction. When the petitioner made a habeas
corpus application before a Federal District Court, one of the main arguments
advanced was that the fact of Scopolamine's character as a truth-serum had not
been brought out at the time of the motion to suppress the statements or even
at the trial before the State Court. The Federal District Court denied the
habeas corpus petition without a plenary evidentiary hearing, and this decision
was affirmed by the Court of Appeals. Hence, the matter came before the U.S.
Supreme 57 Court. In an opinion authored by Earl Warren, C.J. the Supreme Court
held that the Federal District Court had erred in denying a writ of habeas
corpus without giving a plenary evidentiary hearing to examine the
voluntariness of the confessional statements. Both the majority opinion as well
as the dissenting opinion (Stewart, J.) concurred on the finding that a
confession induced by the administration of drugs is constitutionally
inadmissible in a criminal trial. On this issue, Warren, C.J. observed, 372 US
293 (1963), at pp. 307-308:
"Numerous
decisions of this Court have established the standards governing the
admissibility of confessions into evidence. If an individual's `will was
overborne' or if his confession was not `the product of a rational intellect
and a free will', his confession is inadmissible because coerced. These
standards are applicable whether a confession is the product of physical
intimidation or psychological pressure and, of course, are equally applicable
to a drug-induced statement. It is difficult to imagine a situation in which a
confession would be less the product of a free intellect, less voluntary, than
when brought about by a drug having the effect of a `truth serum'. It is not
significant that the drug may have been administered and the questions asked by
persons unfamiliar with hyoscine's properties as a `truth serum', if these
properties exist. Any questioning by police officers which in fact produces a
confession which is not the product of a free intellect renders that confession
inadmissible."
(internal
citations omitted) 58 56. In United States v. Swanson, 572 F.2d 523 (5th Circ.
1978),
two individuals had been convicted for conspiracy and extortion through the
acts of sending threatening letters. At the trial stage, one of the defendants
testified that he suffered from amnesia and therefore he could not recall his
alleged acts of telephoning the co-defendant and mailing threatening letters.
In order to prove such amnesia his counsel sought the admission of a taped
interview between the defendant and a psychiatrist which had been conducted
while the defendant was under the influence of sodium amytal. The drug-induced
statements supposedly showed that the scheme was a joke or a prank. The trial
court refused to admit the contents of this sodium amytal induced interview and
the Fifth Circuit Court upheld this decision. In holding the same, it was also
observed, Id. at p. 528:
"...
Moreover, no drug-induced recall of past events which the subject is otherwise
unable to recall is any more reliable than the procedure for inducing recall.
Here both psychiatrists testified that sodium amytal does not ensure truthful
statements. No re-creation or recall, by photograph, demonstration,
drug-stimulated recall, or otherwise, would be admissible with so tenuous a
predicate."
57. A
decision given by the Ninth Circuit Court in United States v. Solomon, 753 F.
2d 1522 (9th Circ. 1985), has been cited by the respondents to support the
forensic uses of the narcoanalysis technique. However, a perusal of that
judgment shows that neither the actual statements made during narcoanalysis
interviews nor the expert testimony relating to the same were given any
weightage. The facts were that three individuals, namely Solomon, Wesley and
George (a minor at the time of the crime) were accused of having committed
robbery and murder by arson. After their arrest, they had changed their statements
about the events relating to the alleged offences. Subsequently, Wesley gave
his consent for a sodium amytal induced interview and the same was administered
by a psychiatrist named Dr. Montgomery. The same psychiatrist also conducted a
sodium amytal interview with George, at the request of the investigators.
58. At
the trial stage, George gave testimony which proved to be incriminatory for
Solomon and Wesley. However, the statements made by Wesley during the
narcoanalysis interview 60 were not admitted as evidence and even the expert
testimony about the same was excluded. On appeal, the Ninth Circuit Court held
that there had been no abuse of discretion by the trial court in considering
the evidence before it. Solomon and Wesley had contended that the trial court
should have excluded the testimony given by George before the trial judge,
since the same was based on the results of the sodium amytal interview and was
hence unreliable. The Court drew a distinction between the statements made
during the narcoanalysis interview and the subsequent statements made before
the trial court. It was observed that it was open to the defendants to show
that George's testimony during trial had been bolstered by the previous
revelations made during the narcoanalysis interview. However, the connection
between the drug-induced revelations and the testimony given before the trial
court could not be presumed. It was further noted, Id. at p. 1525:
"The
only Ninth Circuit case addressing narcoanalysis excluded a recording of and
psychiatric testimony supporting an interview conducted under the influence of
sodium pentothal, a precursor of sodium amytal.
[Lindsey
v. United States, 237 F.2d 893 (9th Cir. 1956) ...] 61 The case at bar is
distinguishable because no testimony concerning the narcoanalysis was offered
at trial. Only George's current recollection of events was presented.
In an
analogous situation, this circuit has held that the current recollections of
witnesses whose memories have been refreshed by hypnosis are admissible, with
the fact of hypnosis relevant to credibility only [United States v.
Adams,
581 F.2d 193, 198-199 (9th Cir. 1978) ...], cert.
denied.
We have cautioned, however, that "great care must be exercised to
insure" that statements after hypnosis are not the product of hypnotic
suggestion. Id.
We find
no abuse of discretion in the trial court's ruling to admit the testimony of the
witness George. The court's order denying Solomon's Motion to Suppress reflects
a careful balancing of reliability against prejudicial dangers:"
59.
However, Wesley wanted to introduce expert testimony by Dr. Montgomery which
would explain the effects of sodium amytal as well as the statements made
during his own drug- induced interview. The intent was to rehabilitate Wesley's
credibility after the prosecution had impeached it with an earlier confession.
The trial court had held that even though narcoanalysis was not reliable enough
to admit into evidence, Dr. Montgomery could testify about the statements made
to him by Wesley, however without an explanation of the circumstances. On this
issue, the Ninth Circuit Court referred 62 to the Frye standard for the
admissibility of scientific evidence. It was also noted that the trial court
had the discretion to draw the necessary balance between the probative value of
the evidence and its prejudicial effect. It again took note of the decision in
Lindsey v. United States, 237 F. 2d 893 (1956), where the admission of a tape
recording of a narcoanalysis interview along with an expert's explanation of
the technique was held to be a prejudicial error. The following conclusion was
stated, 753 F.2d 1522, at p. 1526:
"Dr.
Montgomery testified also that narcoanalysis is useful as a source of
information that can be valuable if verified through other sources. At one
point he testified that it would elicit an accurate statement of subjective
memory, but later said that the subject could fabricate memories. He refused to
agree that the subject would be more likely to tell the truth under
narcoanalysis than if not so treated.
Wesley
wanted to use the psychiatric testimony to bolster the credibility of his trial
testimony that George started the fatal fire. Wesley's statement shortly after
the fire was that he himself set the fire. The probative value of the statement
while under narcoanalysis that George was responsible, was the drug's tendency
to induce truthful statements.
Montgomery
admitted that narcoanalysis does not reliably induce truthful statements. The
judge's exclusion of the evidence concerning narcoanalysis was not an abuse of
discretion. The prejudicial effect of an aura of 63 scientific respectability
outweighed the slight probative value of the evidence."
60. In
State of New Jersey v. Daryll Pitts, 56 A.2d 1320 (N.J. 1989), the trial court
had refused to admit a part of a psychiatrist's testimony which was based on
the results of the defendant's sodium-amytal induced interview. The defendant
had been charged with murder and had sought reliance on the testimony to show
his unstable state of mind at the time of the homicides. Reliance on the
psychiatrist's testimony was requested during the sentencing phase of the trial
in order to show a mitigating factor. On appeal, the Supreme Court of New
Jersey upheld the trial court's decision to exclude that part of the testimony
which was derived from the results of the sodium-amytal interview. Reference
was made to the Frye standard while observing that "in determining the
admissibility of evidence derived from scientific procedures, a court must
first ascertain the extent to which the reliability of such procedures has
attained general acceptance within the relevant scientific community."
(Id. at p. 1344) Furthermore, the expert witnesses who had appeared at the
trial had given 64 conflicting accounts about the utility of a sodium-amytal
induced interview for ascertaining the mental state of a subject with regard to
past events. It was stated, Id. at p.
1348:
"On
the two occasions that this Court has considered the questions, we have
concluded, based on the then-existing state of scientific knowledge, that
testimony derived from a sodium-amytal induced interview is inadmissible to
prove the truth of the facts asserted. [See State v. Levitt, 36 N.J. 266, 275
(1961)...; State v. Sinnott, ...132 A.2d 298 (1957)] Our rule is consistent
with the views expressed by other courts that have addressed the issue.
... The
expert testimony adduced at the Rule 8 hearing indicated that the scientific
community continues to view testimony induced by sodium amytal as unreliable to
ascertain truth. Thus, the trial court's ruling excluding Dr. Sadoff's
testimony in the guilt phase was consistent with our precedents, with the
weight of authority throughout the country, and also with contemporary
scientific knowledge as reflected by the expert testimony.
..."
(internal
citations omitted)
61. Since
a person subjected to the narcoanalysis technique is in a half-conscious state
and loses awareness of time and place, this condition can be compared to that
of a person who is in a hypnotic state. In Horvath v. R, [1979] 44 C.C.C. (2d)
385, the Supreme Court of Canada held that statements made 65 in a hypnotic
state were not voluntary and hence they cannot be admitted as evidence. It was
also decided that if the post- hypnotic statements relate back to the contents
of what was said during the hypnotic state, the subsequent statements would be
inadmissible. In that case a 17 year old boy suspected for the murder of his
mother had been questioned by a police officer who had training in the use of
hypnotic methods. During the deliberate interruptions in the interrogation
sessions, the boy had fallen into a mild hypnotic state and had eventually
confessed to the commission of the murder. He later repeated the admissions
before the investigating officers and signed a confessional statement. The
trial judge had found all of these statements to be inadmissible, thereby
leading to an acquittal. The Court of Appeal had reversed this decision, and
hence an appeal was made before the Supreme Court.
62.
Notably, the appellant had refused to undergo a narcoanalysis interview or a
polygraph test. It was also evident that he had not consented to the hypnosis.
The multiple 66 opinions delivered in the case examined the criterion for
deciding the voluntariness of a statement. Reference was made to the well-known
statement of Lord Summer in Ibrahim v. R, [1914] A.C. 599 (P.C.), at p. 609:
"It
has long been established as a positive rule of English criminal law that no
statement made by an accused is admissible in evidence against him unless it is
shown by the prosecution to have been a voluntary statement, in the sense that
it has not been obtained from him either by fear of prejudice or hope of
advantage exercised or held out by a person in authority."
63. In
Horvath v. R (supra.), the question was whether statements made under a
hypnotic state could be equated with those obtained by `fear of prejudice' or
`hope of advantage'. The Court ruled that the inquiry into the voluntariness of
a statement should not be literally confined to these expressions. After
examining several precedents, Spence J. held that the total circumstances
surrounding the interrogation should be considered, with no particular emphasis
placed on the hypnosis. It was observed that in this particular case the
interrogation of the accused had resulted in his complete emotional
disintegration, and hence the 67 statements given were inadmissible. It was
also held that the rule in Ibrahim v. R (supra.) that a statement must be
induced by `fear of prejudice' or `hope of advantage' in order to be considered
involuntary was not a comprehensive test. The word `voluntary' should be given
its ordinary and natural meaning so that the circumstances which existed in the
present case could also be described as those which resulted in involuntary
statements.
64. In a
concurring opinion, Beetz., J. drew a comparison between statements made during
hypnosis and those made under the influence of a sodium-amytal injection. It
was observed, at Para. 91:
"91.
Finally, voluntariness is incompatible not only with promises and threats but
actual violence. Had Horvath made a statement while under the influence of an
amytal injection administered without his consent, the statement would have
been inadmissible because of the assault, and presumably because also of the
effect of the injection on his mind. There was no physical violence in the case
at bar. There is not even any evidence of bodily contact between Horvath and
Sergeant Proke, but through the use of an interrogation technique involving
certain physical elements such as a hypnotic quality of voice and manner, a
police officer has gained unconsented access to what in a human being is of the
68 utmost privacy, the privacy of his own mind. As I have already indicated, it
is my view that this was a form of violence or intrusion of a moral or mental
nature, more subtle than visible violence but not less efficient in the result
than an amytal injection administered by force."
65. In
this regard, the following observations are instructive for the deciding the
questions before us, at Paras. 117,118:
"117.
It would appear that hypnosis and narcoanalysis are used on a consensual basis
by certain police forces as well as by the defence, and it has been argued that
they can serve useful purposes.
118. I
refrain from commenting on such practices, short of noting that even the
consensual use of hypnosis and narcoanalysis for evidentiary purposes may
present problems. Under normal police interrogation, a suspect has the
opportunity to renew or deny his consent to answer each question, which is no
longer the case once he is, although by consent, in a state of hypnosis or
under the influence of a `truth serum'."
(internal
citation omitted)
66. Our
attention has also been drawn to the decision reported as Rock v. Arkansas, 483
US 44 (1987), in which the U.S.
Supreme
Court ruled that hypnotically-refreshed testimony could be admitted as
evidence. The constitutional basis for admitting such testimony was the Sixth
Amendment which gives every person a right to present a defence in criminal 69
cases. However, the crucial aspect was that the trial court had admitted the
oral testimony given during the trial stage rather than the actual statements
made during the hypnosis session conducted earlier during the investigation
stage. It was found that such hypnotically-refreshed testimony was the only defence
available to the defendant in the circumstances. In such circumstances, it
would of course be open to the prosecution to contest the reliability of the
testimony given during the trial stage by showing that it had been bolstered by
the statements made during hypnosis. It may be recalled that a similar line of
reasoning had been adopted in United States v. Solomon, 753 F. 2d 1522 (9th
Circ. 1985), where for the purpose of admissibility of testimony, a distinction
had been drawn between the statements made during a narcoanalysis interview and
the oral testimony given during the trial stage which was allegedly based on
the drug-induced statements.
Hence,
the weight of precedents indicates that both the statements made during
narcoanalysis interviews as well as expert testimony relating to the same have
not been given weightage in criminal trials.
70 Brain
Electrical Activation Profile (BEAP) test
67. The
third technique in question is the `Brain Electrical Activation Profile test',
also known as the `P300 Waves test'. It is a process of detecting whether an
individual is familiar with certain information by way of measuring activity in
the brain that is triggered by exposure to selected stimuli. This test consists
of examining and measuring `event-related potentials' (ERP) i.e. electrical
wave forms emitted by the brain after it has absorbed an external event. An ERP
measurement is the recognition of specific patterns of electrical brain
activity in a subject that are indicative of certain cognitive mental
activities that occur when a person is exposed to a stimulus in the form of an
image or a concept expressed in words. The measurement of the cognitive brain
activity allows the examiner to ascertain whether the subject recognised
stimuli to which he/she was exposed. [Cited from: Andre A Moenssens, `Brain
Fingerprinting - Can it be used to detect the innocence of persons charged with
a crime?' 70 University 71 of Missouri at Kansas City Law Review 891-920
(Summer 2002) at p. 893]
68. By
the late 19th century it had been established that the brain functioned by
emitting electrical impulses and the technology to measure them was developed
in the form of the electroencephalograph (EEG) which is now commonly used in
the medical field. Brain wave patterns observed through an EEG scan are fairly
crude and may reflect a variety of unrelated brain activity functions. It was
only with the development of computers that it became possible to sort out
specific wave components on an EEG and identify the correlation between the
waves and specific stimuli. The P300 wave is one such component that was
discovered by Dr. Samuel Sutton in 1965. It is a specific event-related brain
potential (ERP) which is triggered when information relating to a specific
event is recognised by the brain as being significant or surprising.
69. The
P300 waves test is conducted by attaching electrodes to the scalp of the
subject, which measure the emission of the said wave components. The test needs
to be conducted in an insulated and air-conditioned room in order to prevent
distortions arising out of weather conditions. Much like the narcoanalysis
technique and polygraph examination, this test also requires effective
collaboration between the investigators and the examiner, most importantly for
designing the stimuli which are called `probes'. Ascertaining the subject's
familiarity with the `probes' can help in detecting deception or to gather
useful information. The test subject is exposed to auditory or visual stimuli
(words, sounds, pictures, videos) that are relevant to the facts being
investigated alongside other irrelevant words and pictures. Such stimuli can be
broadly classified as material `probes' and neutral `probes'. The underlying
theory is that in the case of guilty suspects, the exposure to the material
probes will lead to the emission of P300 wave components which will be duly
recorded by the instruments. By examining the records of these wave components
the examiner can make inferences about the 73 individual's familiarity with the
information related to the crime. [Refer: Laboratory Procedure Manual - Brain
Electrical Activation Profile (Directorate of Forensic Science, Ministry of
Home Affairs, Government of India, New Delhi - 2005)]
70. The
P300 wave test was the precursor to other neuroscientific techniques such as
`Brain Fingerprinting' developed by Dr. Lawrence Farwell. The latter technique
has been promoted in the context of criminal justice and has already been the
subject of litigation. There is an important difference between the `P300 waves
test' that has been used by Forensic Science Laboratories in India and the
`Brain Fingerprinting' technique. Dr. Lawrence Farwell has argued that the P300
wave component is not an isolated sensory brain effect but it is part of a
longer response that continues to take place after the initial P300 stimulus
has occurred. This extended response bears a correlation with the cognitive
processing that takes place slightly beyond the P300 wave and continues in the
range of 300-800 milliseconds after the exposure to the stimulus. This extended
brain wave 74 component has been named as the MERMER (Memory-and-
Encoding-Related-Multifaceted-Electroencephalographic Response) effect. [See
generally: Lawrence A. Farwell, `Brain Fingerprinting: A new paradigm in
criminal investigations and counter-terrorism', (2001) Text can be downloaded
from <www.brainwavescience.com>]
71.
Functional Magnetic Resonance Imaging (FMRI) is another neuroscientific
technique whose application in the forensic setting has been contentious. It
involves the use of MRI scans for measuring blood flow between different parts
of the brain which bears a correlation to the subject's truthfulness or
deception. FMRI-based lie-detection has also been advocated as an aid to
interrogations in the context of counter-terrorism and intelligence operations,
but it prompts the same legal questions that can be raised with respect to all
of the techniques mentioned above. Even though these are non- invasive
techniques the concern is not so much with the manner in which they are
conducted but the consequences for the individuals who undergo the same. The
use of techniques 75 such as `Brain Fingerprinting' and `FMRI-based
Lie-Detection' raise numerous concerns such as those of protecting mental
privacy and the harms that may arise from inferences made about the subject's
truthfulness or familiarity with the facts of a crime. [See generally: Michael
S. Pardo, `Neuroscience evidence, legal culture and criminal procedure', 33
American Journal of Criminal Law 301-337 (Summer 2006); Sarah E.
Stoller
and Paul Root Wolpe, `Emerging neurotechnologies for lie detection and the
fifth amendment', 33 American Journal of Law and Medicine 359-375 (2007)]
72. These
neuroscientific techniques could also find application outside the criminal
justice setting. For instance, Henry T. Greely (2005, Cited below) has argued
that technologies that may enable a precise identification of the subject's
mental responses to specific stimuli could potentially be used for
market-research by business concerns for surveying customer preferences and
developing targeted advertising schemes. They could also be used to judge mental
skills in the educational and employment-related settings 76 since cognitive
responses are often perceived to be linked to academic and professional
competence. One can foresee the potential use of this technique to distinguish
between students and employees on the basis of their cognitive responses. There
are several other concerns with the development of these `mind-reading'
technologies especially those relating to the privacy of individuals. [Refer:
Henry T. Greely, `Chapter 17:
The
social effects of advances in neuroscience: Legal problems, legal
perspectives', in Judy Illes (ed.), Neuroethics - Defining the issues in
theory, practice and policy (Oxford University Press, 2005) at pp. 245-263]
73. Even
though the P300 Wave component has been the subject of considerable research,
its uses in the criminal justice system have not received much scholarly
attention. Dr. Lawrence Farwell's `Brain Fingerprinting' technique has
attracted considerable publicity but has not been the subject of any rigorous independent
study. Besides this preliminary doubt, an important objection is centred on the
inherent difficulty of designing the appropriate `probes' for the test.
77 Even
if the `probes' are prepared by an examiner who is thoroughly familiar with all
aspects of the facts being investigated, there is always a chance that a
subject may have had prior exposure to the material probes. In case of such
prior exposure, even if the subject is found to be familiar with the probes,
the same will be meaningless in the overall context of the investigation. For
example, in the aftermath of crimes that receive considerable media-attention
the subject can be exposed to the test stimuli in many ways. Such exposure
could occur by way of reading about the crime in newspapers or magazines,
watching television, listening to the radio or by word of mouth. A possibility
of prior exposure to the stimuli may also arise if the investigators
unintentionally reveal crucial facts about the crime to the subject before
conducting the test. The subject could also be familiar with the content of the
material probes for several other reasons.
74.
Another significant limitation is that even if the tests demonstrate
familiarity with the material probes, there is no conclusive guidance about the
actual nature of the subject's 78 involvement in the crime being investigated.
For instance a by- stander who witnessed a murder or robbery could potentially
be implicated as an accused if the test reveals that the said person was
familiar with the information related to the same.
Furthermore,
in cases of amnesia or `memory-hardening' on part of the subject, the tests
could be blatantly misleading.
Even if
the inferences drawn from the `P300 wave test' are used for corroborating other
evidence, they could have a material bearing on a finding of guilt or innocence
despite being based on an uncertain premise. [For an overview of the
limitations of these neuroscientific techniques, see: John G.
New, `If
you could read my mind - Implications of neurological evidence for twenty-first
century criminal jurisprudence', 29 Journal of Legal Medicine 179-197
(April-June 2008)]
75. We
have come across two precedents relatable to the use of `Brain Fingerprinting'
tests in criminal cases. Since this technique is considered to be an advanced
version of the P300 Waves test, it will be instructive to examine these
precedents.
In
Harrington v. Iowa, 659 N.W.2d 509 (2003), Terry J.
79
Harrington (appellant) had been convicted for murder in 1978 and the same had
allegedly been committed in the course of an attempted robbery. A crucial
component of the incriminating materials was the testimony of his accomplice.
However,
many years later it emerged that the accomplice's testimony was prompted by an
offer of leniency from the investigating police and doubts were raised about
the credibility of other witnesses as well. Subsequently it was learnt that at
the time of the trial, the police had not shared with the defence some
investigative reports that indicated the possible involvement of another
individual in the said crime.
Harrington
had also undergone a `Brain Fingerprinting' test under the supervision of Dr.
Lawrence Farwell. The test results showed that he had no memories of the
`probes' relating to the act of murder. Hence, Harrington approached the
District Court seeking the vacation of his conviction and an order for a new
trial. Post-conviction relief was sought on grounds of newly discovered
evidence which included recantation by the prosecution's primary witness, the
past suppression of police investigative reports which implicated 80 another
suspect and the results of the `Brain Fingerprinting' tests. However, the
District Court denied this application for post-conviction relief. This was
followed by an appeal before the Supreme Court of Iowa.
76. The
appellate court concluded that Harrington's appeal was timely and his action
was not time barred. The appellant was granted relief in light of a `due
process' violation, i.e. the failure on part of the prosecution at the time of
the original trial to share the investigative reports with the defence. It was
observed that the defendant's right to a fair trial had been violated because
the prosecution had suppressed evidence which was favourable to the defendant
and clearly material to the issue of guilt. Hence the case was remanded back to
the District Court. However, the Supreme Court of Iowa gave no weightage to the
results of the `Brain Fingerprinting' test and did not even inquire into their
relevance or reliability. In fact it was stated: "Because the scientific
testing evidence is not necessary to a resolution of this appeal, we give it no
further consideration." [659 N.W.2d 509, at p. 516] 81
77. The
second decision brought to our attention is Slaughter v. Oklahoma, 105 P. 3d
832 (2005). In that case, Jimmy Ray Slaughter had been convicted for two
murders and sentenced to death. Subsequently, he filed an application for post-
conviction relief before the Court of Criminal Appeals of Oklahoma which
attempted to introduce in evidence an affidavit and evidentiary materials
relating to a `Brain Fingerprinting' test. This test had been conducted by Dr. Lawrence
Farwell whose opinion was that the petitioner did not have knowledge of the
`salient features of the crime scene'.
Slaughter
also sought a review of the evidence gathered through DNA testing and
challenged the bullet composition analysis pertaining to the crime scene.
However, the appellate court denied the application for post-conviction relief
as well as the motion for an evidentiary hearing. With regard to the affidavits
based on the `Brain Fingerprinting' test, it was held, Id. at p. 834:
"10.
Dr. Farwell makes certain claims about the Brain Fingerprinting test that are
not supported by anything other than his bare affidavit. He claims the
technique has 82 been extensively tested, has been presented and analyzed in
numerous peer-review articles in recognized scientific publications, has a very
low rate of error, has objective standards to control its operation, and is
generally accepted within the `relevant scientific community'. These bare
claims, however, without any form of corroboration, are unconvincing and, more
importantly, legally insufficient to establish Petitioner's post-conviction
request for relief. Petitioner cites one published opinion, Harrington v.
State, 659 N.W.2d 509 (Iowa 2003), in which a brain fingerprinting test result
was raised as error and discussed by the Iowa Supreme Court (`a novel
computer-based brain testing'). However, while the lower court in Iowa appears
to have admitted the evidence under non-Daubert circumstances, the test did not
ultimately factor into the Iowa Supreme Court's published decision in any
way."
Accordingly,
the following conclusion was stated, Id. at p. 836:
"18.
Therefore, based upon the evidence presented, we find the Brain Fingerprinting
evidence is procedurally barred under the Act and our prior cases, as it could
have been raised in Petitioner's direct appeal and, indeed, in his first
application for post-conviction relief. We further find a lack of sufficient
evidence that would support a conclusion that Petitioner is factually innocent
or that Brain Fingerprinting, based solely upon the MERMER effect, would
survive a Daubert analysis."
CONTENTIOUS
ISSUES IN THE PRESENT CASE
78. As
per the Laboratory Procedure manuals, the impugned tests are being conducted at
the direction of jurisdictional courts even without obtaining the consent of
the intended test 83 subjects. In most cases these tests are conducted
conjunctively wherein the veracity of the information revealed through
narcoanalysis is subsequently tested through a polygraph examination or the
BEAP test. In some cases the investigators could first want to ascertain the
capacity of the subject to deceive (through polygraph examination) or his/her
familiarity with the relevant facts (through BEAP test) before conducting a
narcoanalysis interview. Irrespective of the sequence in which these techniques
are administered, we have to decide on their permissibility in circumstances
where any of these tests are compulsorily administered, either independently or
conjunctively.
79. It is
plausible that investigators could obtain statements from individuals by
threatening them with the possibility of administering either of these tests.
The person being interrogated could possibly make self-incriminating statements
on account of apprehensions that these techniques will extract the truth. Such
behaviour on part of investigators is more likely to occur when the person
being interrogated is 84 unaware of his/her legal rights or is intimidated for
any other reason. It is a settled principle that a statement obtained through
coercion, threat or inducement is involuntary and hence inadmissible as
evidence during trial. However, it is not settled whether a statement made on
account of the apprehension of being forcibly subjected to the impugned tests
will be involuntary and hence inadmissible. This aspect merits consideration.
It is also conceivable that an individual who has undergone either of these
tests would be more likely to make self-incriminating statements when he/she is
later confronted with the results. The question in that regard is whether the
statements that are made subsequently should be admissible as evidence. The
answers to these questions rest on the permissibility of subjecting individuals
to these tests without their consent.
I.
Whether the involuntary administration of the impugned techniques violates the
`right against self- incrimination' enumerated in Article 20(3) of the
Constitution? 85
80.
Investigators could seek reliance on the impugned tests to extract information
from a person who is suspected or accused of having committed a crime.
Alternatively these tests could be conducted on witnesses to aid investigative
efforts. As mentioned earlier, this could serve several objectives, namely
those of gathering clues which could lead to the discovery of relevant
evidence, to assess the credibility of previous testimony or even to ascertain
the mental state of an individual. With these uses in mind, we have to decide
whether the compulsory administration of these tests violates the `right
against self-incrimination' which finds place in Article 20(3) of the
Constitution of India. Along with the `rule against double-jeopardy' and the
`rule against retrospective criminalisation' enumerated in Article 20, it is
one of the fundamental protections that controls interactions between
individuals and the criminal justice system. Article 20(3) reads as follows:
"No
person accused of any offence shall be compelled to be a witness against
himself."
81. The
interrelationship between the `right against self- incrimination' and the
`right to fair trial' has been recognised in most jurisdictions as well as
international human rights instruments. For example, the U.S. Constitution
incorporates the `privilege against self-incrimination' in the text of its
Fifth Amendment. The meaning and scope of this privilege has been judicially
moulded by recognising it's interrelationship with other constitutional rights
such as the protection against `unreasonable search and seizure' (Fourth
amendment) and the guarantee of `due process of law' (Fourteenth amendment).
In the
International Covenant on Civil and Political Rights (ICCPR), Article 14(3)(g)
enumerates the minimum guarantees that are to be accorded during a trial and
states that everyone has a right not to be compelled to testify against himself
or to confess guilt. In the European Convention for the Protection of Human
Rights and Fundamental Freedoms, Article 6(1) states that every person charged
with an offence has a right to a fair trial and Article 6(2) provides that
`Everybody charged with a criminal offence shall be presumed innocent until
proved guilty according to law'. The guarantee of `presumption of 87 innocence'
bears a direct link to the `right against self- incrimination' since compelling
the accused person to testify would place the burden of proving innocence on
the accused instead of requiring the prosecution to prove guilt.
82. In
the Indian context, Article 20(3) should be construed with due regard for the
inter-relationship between rights, since this approach was recognised in Maneka
Gandhi's case, (1978) 1 SCC 248. Hence, we must examine the `right against
self-incrimination' in respect of its relationship with the multiple dimensions
of `personal liberty' under Article 21, which include guarantees such as the
`right to fair trial' and `substantive due process'. It must also be emphasized
that Articles 20 and 21 have a non-derogable status within Part III of our
Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978
mandated that the right to move any court for the enforcement of these rights
cannot be suspended even during the operation of a proclamation of emergency.
In this regard, Article 359(1) of the Constitution of India reads as follows:-
88 "359. Suspension of the enforcement of the rights conferred by Part III
during emergencies. - (1) Where a Proclamation of Emergency is in operation,
the President may by order declare that the right to move any court for the
enforcement of such of the rights conferred by Part III (except Articles 20 and
21) as may be mentioned in the order and all proceedings pending in any court
for the enforcement of the rights so mentioned shall remain suspended for the
period during which the Proclamation is in force or for such shorter period as
may be specified in the order. ..."
83.
Undoubtedly, Article 20(3) has an exalted status in our Constitution and
questions about its meaning and scope deserve thorough scrutiny. In one of the
impugned judgments, it was reasoned that all citizens have an obligation to co-
operate with ongoing investigations. For instance reliance has been placed on
Section 39, CrPC which places a duty on citizens to inform the nearest
magistrate or police officer if they are aware of the commission of, or of the
intention of any other person to commit the crimes enumerated in the section.
Attention
has also been drawn to the language of Section 156(1), CrPC which states that a
police officer in charge of a police station is empowered to investigate
cognizable offences even without an order from the jurisdictional magistrate.
89
Likewise, our attention was drawn to Section 161(1), CrPC which empowers the
police officer investigating a case to orally examine any person who is
supposed to be acquainted with the facts and circumstances of the case. While
the overall intent of these provisions is to ensure the citizens' cooperation
during the course of investigation, they cannot override the constitutional
protections given to accused persons. The scheme of the CrPC itself
acknowledges this hierarchy between constitutional and statutory provisions in
this regard. For instance, Section 161(2), CrPC prescribes that when a person
is being examined by a police officer, he is not bound to answer such
questions, the answers of which would have a tendency to expose him to a
criminal charge or a penalty or forfeiture.
84. Not
only does an accused person have the right to refuse to answer any question
that may lead to incrimination, there is also a rule against adverse inferences
being drawn from the fact of his/her silence. At the trial stage, Section
313(3) of the CrPC places a crucial limitation on the power of the court to 90
put questions to the accused so that the latter may explain any circumstances
appearing in the evidence against him. It lays down that the accused shall not
render himself/herself liable to punishment by refusing to answer such
questions, or by giving false answers to them. Further, Proviso (b) to Section
315(1) of CrPC mandates that even though an accused person can be a competent
witness for the defence, his/her failure to give evidence shall not be made the
subject of any comment by any of the parties or the court or give rise to any
presumption against himself or any person charged together with him at the
trial. It is evident that Section 161(2), CrPC enables a person to choose
silence in response to questioning by a police officer during the stage of
investigation, and as per the scheme of Section 313(3) and Proviso (b) to
Section 315(1) of the same code, adverse inferences cannot be drawn on account
of the accused person's silence during the trial stage.
Historical
origins of the `right against self-incrimination'
85. The
right of refusal to answer questions that may incriminate a person is a
procedural safeguard which has 91 gradually evolved in common law and bears a
close relation to the `right to fair trial'. There are competing versions about
the historical origins of this concept. Some scholars have identified the
origins of this right in the medieval period. In that account, it was a
response to the procedure followed by English judicial bodies such as the Star Chamber
and High Commissions which required defendants and suspects to take ex officio
oaths. These bodies mainly decided cases involving religious non-conformism in
a Protestant dominated society, as well as offences like treason and sedition.
Under an ex officio oath the defendant was required to answer all questions
posed by the judges and prosecutors during the trial and the failure to do so
would attract punishments that often involved physical torture. It was the
resistance to this practice of compelling the accused to speak which led to
demands for a `right to silence'.
86. In an
academic commentary, Leonard Levy (1969) had pointed out that the doctrinal
origins of the right against self- incrimination could be traced back to the
Latin maxim `Nemo 92 tenetur seipsum prodere' (i.e. no one is bound to accuse
himself) and the evolution of the concept of `due process of law' enumerated in
the Magna Carta. [Refer: Leonard Levy, `The right against self-incrimination:
history and judicial history', 84(1) Political Science Quarterly 1-29 (March
1969)] The use of the ex officio oath by the ecclesiastical courts in medieval
England had come under criticism from time to time, and the most prominent
cause for discontentment came with its use in the Star Chamber and the High
Commissions. Most scholarship has focussed on the sedition trial of John
Lilburne (a vocal critic of Charles I, the then monarch) in 1637, when he
refused to answer questions put to him on the ground that he had not been
informed of the contents of the written complaint against him. John Lilburne
went on to vehemently oppose the use of ex-officio oaths, and the Parliament of
the time relented by abolishing the Star Chamber and the High Commission in
1641. This event is regarded as an important landmark in the evolution of the
`right to silence'.
87.
However, in 1648 a special committee of Parliament conducted an investigation
into the loyalty of members whose opinions were offensive to the army leaders.
The committee's inquisitional conduct and its requirement that witnesses take
an oath to tell the truth provoked opponents to condemn what they regarded as a
revival of Star Chamber tactics. John Lilburne was once again tried for treason
before this committee, this time for his outspoken criticism of the leaders who
had prevailed in the struggle between the supporters of the monarch and those
of the Parliament in the English civil war. John Lilburne invoked the spirit of
the Magna Carta as well as the 1628 Petition of Right to argue that even after
common-law indictment and without oath, he did not have to answer questions
against or concerning himself. He drew a connection between the right against
self-incrimination and the guarantee of a fair trial by invoking the idea of
`due process of law' which had been stated in the Magna Carta.
88. John
H. Langbein (1994) has offered more historical insights into the emergence of
the `right to silence'. [John H. 94 Langbein, `The historical origins of the
privilege against self- incrimination at common law', 92(5) Michigan Law Review
1047-1085 (March 1994)] He draws attention to the fact that even though ex
officio oaths were abolished in 1641, the practice of requiring defendants to
present their own defence in criminal proceedings continued for a long time
thereafter.
The Star
Chamber and the High Commissions had mostly tried cases involving religious
non-conformists and political dissenters, thereby attracting considerable
criticism. Even after their abolition, the defendants in criminal courts did not
have the right to be represented by a lawyer (`right to counsel') or the right
to request the presence of defence witnesses (`right of compulsory process').
Hence, defendants were more or less compelled to testify on their own behalf.
Even though the threat of physical torture on account of remaining silent had
been removed, the defendant would face a high risk of conviction if he/she did
not respond to the charges by answering the material questions posed by the
judge and the prosecutor. In presenting his/her own defence during the trial,
there was a strong likelihood that the contents of such 95 testimony could
strengthen the case of the prosecution and lead to conviction. With the passage
of time, the right of a criminal defendant to be represented by a lawyer
eventually emerged in the common law tradition. A watershed in this regard was
the Treason Act of 1696 which provided for a `right to counsel' as well as
`compulsory process' in cases involving offences such as treason. Gradually,
the right to be defended by a counsel was extended to more offences, but the
role of the counsel was limited in the early years. For instance defence
lawyers could only help their clients with questions of law and could not make
submissions related to the facts.
89. The practice
of requiring the accused persons to narrate or contest the facts on their own
corresponds to a prominent feature of an inquisitorial system, i.e. the
testimony of the accused is viewed as the `best evidence' that can be gathered.
The
premise behind this is that innocent persons should not be reluctant to testify
on their own behalf. This approach was followed in the inquisitional procedure
of the ecclesiastical courts and had thus been followed in other courts as
well. The 96 obvious problem with compelling the accused to testify on his own
behalf is that an ordinary person lacks the legal training to effectively
respond to suggestive and misleading questioning, which could come from the
prosecutor or the judge. Furthermore, even an innocent person is at an inherent
disadvantage in an environment where there may be unintentional irregularities
in the testimony. Most importantly the burden of proving innocence by refuting
the charges was placed on the defendant himself. In the present day, the inquisitorial
conception of the defendant being the best source of evidence has long been
displaced with the evolution of adversarial procedure in the common law
tradition. Criminal defendants have been given protections such as the
presumption of innocence, right to counsel, the right to be informed of
charges, the right of compulsory process and the standard of proving guilt
beyond reasonable doubt among others. It can hence be stated that it was only
with the subsequent emergence of the `right to counsel' that the accused's
`right to silence' became meaningful. With the consolidation of the role of
defence lawyers in criminal trials, a 97 clear segregation emerged between the
testimonial function performed by the accused and the defensive function
performed by the lawyer. This segregation between the testimonial and defensive
functions is now accepted as an essential feature of a fair trial so as to
ensure a level-playing field between the prosecution and the defence. In
addition to a defendant's `right to silence' during the trial stage, the
protections were extended to the stage of pre-trial inquiry as well. With the
enactment of the Sir John Jervis Act of 1848, provisions were made to advise
the accused that he might decline to answer questions put to him in the
pre-trial inquiry and to caution him that his answers to pre-trial
interrogation might be used as evidence against him during the trial stage.
90. The
judgment in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, at pp. 438-439,
referred to the following extract from a decision of the US Supreme Court in
Brown v. Walker, 161 US 591 (1896), which had later been approvingly cited by
Warren, C.J. in Miranda v. Arizona, 384 US 436 (1966):
98
"The maxim nemo tenetur seipsum accusare had its origin in a protest
against the inquisitorial and manifestly unjust methods of interrogating
accused persons, which have long obtained in the continental system, and, until
the expulsion of the Stuarts from the British throne in 1688, and the erection
of additional barriers for the protection of the people against the exercise of
arbitrary power, were not uncommon even in England. While the admissions or
confessions of the prisoner, when voluntarily and freely made, have always
ranked high in the scale of incriminating evidence, if an accused person be
asked to explain his apparent connection with a crime under investigation, the
case with which the questions put to him may assume an inquisitorial character,
the temptation to press the witness unduly, to browbeat him if he be timid or
reluctant, to push him into a corner, and to entrap him into fatal
contradictions, which is so painfully evident in many of the earlier state
trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give rise to a demand for its total
abolition. The change in the English criminal procedure in that particular
seems to be founded upon no statute and no judicial opinion, but upon a general
and silent acquiescence of the courts in a popular demand. But, however
adopted, it has become firmly embedded in English, as well as in American
jurisprudence. So deeply did the inequities of the ancient system impress
themselves upon the minds of the American colonists that the State, with one
accord, made a denial of the right to question an accused person a part of
their fundamental law, so that a maxim, which in England was a mere rule of
evidence, became clothed in this country with the impregnability of a
constitutional enactment."
99
Underlying rationale of the right against self-incrimination
91. As
mentioned earlier, `the right against self-incrimination' is now viewed as an
essential safeguard in criminal procedure.
Its
underlying rationale broadly corresponds with two objectives - firstly, that of
ensuring reliability of the statements made by an accused, and secondly,
ensuring that such statements are made voluntarily. It is quite possible that a
person suspected or accused of a crime may have been compelled to testify through
methods involving coercion, threats or inducements during the investigative
stage. When a person is compelled to testify on his/her own behalf, there is a
higher likelihood of such testimony being false. False testimony is undesirable
since it impedes the integrity of the trial and the subsequent verdict.
Therefore, the purpose of the `rule against involuntary confessions' is to
ensure that the testimony considered during trial is reliable. The premise is
that involuntary statements are more likely to mislead the judge and the
prosecutor, thereby resulting in a miscarriage of justice. Even during the
investigative stage, false statements 100 are likely to cause delays and
obstructions in the investigation efforts.
92. The
concerns about the `voluntariness' of statements allow a more comprehensive
account of this right. If involuntary statements were readily given weightage
during trial, the investigators would have a strong incentive to compel such
statements - often through methods involving coercion, threats, inducement or
deception. Even if such involuntary statements are proved to be true, the law
should not incentivise the use of interrogation tactics that violate the
dignity and bodily integrity of the person being examined. In this sense, `the
right against self-incrimination' is a vital safeguard against torture and
other `third-degree methods' that could be used to elicit information. It
serves as a check on police behaviour during the course of investigation. The
exclusion of compelled testimony is important, otherwise the investigators will
be more inclined to extract information through such compulsion as a matter of
course. The frequent reliance on such `short-cuts' will compromise the
diligence 101 required for conducting meaningful investigations. During the
trial stage, the onus is on the prosecution to prove the charges levelled
against the defendant and the `right against self- incrimination' is a vital
protection to ensure that the prosecution discharges the said onus.
93. These
concerns have been recognised in Indian as well as foreign judicial precedents.
For instance, Das Gupta, J. had observed in State of Bombay v. Kathi Kalu
Oghad, [1962] 3 SCR 10, at pp. 43-44:
"...
for long it has been generally agreed among those who have devoted serious
thought to these problems that few things could be more harmful to the
detection of crime or conviction of the real culprit, few things more likely to
hamper the disclosure of truth than to allow investigators or prosecutors to
slide down the easy path of producing by compulsion, evidence, whether oral or
documentary, from an accused person. It has been felt that the existence of
such an easy way would tend to dissuade persons in charge of investigation or
prosecution from conducting diligent search for reliable independent evidence
and from sifting of available materials with the care necessary for
ascertainment of truth. If it is permissible in law to obtain evidence from the
accused person by compulsion, why tread the hard path of laborious investigation
and prolonged examination of other men, materials and documents? It has been
well said that an abolition of this privilege would be an incentive for those
in charge of enforcement of law `to sit 102 comfortably in the shade rubbing
red pepper into a poor devils' eyes rather than to go about in the sun hunting
up evidence.' [Sir James Fitzjames Stephen, History of Criminal Law, p. 442] No
less serious is the danger that some accused persons at least, may be induced
to furnish evidence against themselves which is totally false - out of sheer
despair and an anxiety to avoid an unpleasant present. Of all these dangers the
Constitution makers were clearly well aware and it was to avoid them that
Article 20(3) was put in the Constitution."
94. The
rationale behind the Fifth Amendment in the U.S. Constitution was eloquently
explained by Goldberg. J. in Murphy v. Waterfront Commission, 378 US 52 (1964),
at p.
"It
reflects many of our fundamental values and most noble aspirations: our
unwillingness to subject those suspected of crime to the cruel trilemma of
self- accusation, perjury or contempt; our preference for an accusatorial
rather than an inquisitorial system of criminal justice; our fear that
self-incriminating statements will be elicited by inhumane treatment and
abuses; our sense of fair play which dictates a fair state- individual balance
by requiring the government to leave the individual alone until good cause is
shown for disturbing him and by requiring the government in its contests with
the individual to shoulder the entire load;
our
respect for the inviolability of the human personality and of the right of each
individual to a private enclave where he may lead a private life; our distrust
of self- deprecatory statements; and our realization that the privilege, while
sometimes a shelter to the guilty, is often a protection to the innocent."
103 A
similar view was articulated by Lord Hailsham of St.
Marylebone
in Wong Kam-ming v. R , [1979] 1 All ER 939, at p. 946 :
"...
any civilised system of criminal jurisprudence must accord to the judiciary
some means of excluding confessions or admissions obtained by improper methods.
This is not only because of the potential unreliability of such statements, but
also, and perhaps mainly, because in a civilised society it is vital that
persons in custody or charged with offences should not be subjected to ill
treatment or improper pressure in order to extract confessions. It is therefore
of very great importance that the courts should continue to insist that before
extra-judicial statements can be admitted in evidence the prosecution must be
made to prove beyond reasonable doubt that the statement was not obtained in a
manner which should be reprobated and was therefore in the truest sense
voluntary."
95. V.R.
Krishna Iyer, J. echoed similar concerns in Nandini Satpathy's case, (1978) 2
SCC 424, at p. 442:
"...And
Article 20(3) is a human article, a guarantee of dignity and integrity and of
inviolability of the person and refusal to convert an adversary system into an
inquisitorial scheme in the antagonistic ante-chamber of a police station. And
in the long run, that investigation is best which uses stratagems least, that
policeman deserves respect who gives his fists rest and his wits restlessness.
The police are part of us and must rise in people's esteem through firm and
friendly, not foul and sneaky strategy."
96. In
spite of the constitutionally entrenched status of the right against
self-incrimination, there have been some criticisms of the policy underlying
the same. John Wigmore (1960) argued against a broad view of the privilege
which extended the same to the investigative stage. [Refer: John Wigmore, `The
privilege against self-incrimination, its constitutional affectation, raison
d'etre and miscellaneous implications', 51 Journal of Criminal Law, Criminology
and Police Science 138 (1960)] He has asserted that the doctrinal origins of
the `rule against involuntary confessions' in evidence law and those of the
`right to self-incrimination' were entirely different and catered to different
objectives. In the learned author's opinion, the `rule against involuntary
confessions' evolved on account of the distrust of statements made in custody.
The objective was to prevent these involuntary statements from being considered
as evidence during trial but there was no prohibition against relying on
statements made involuntarily during investigation. Wigmore argued that the
privilege against self-incrimination should be viewed as a right that was
confined to the trial stage, since the judge can 105 intervene to prevent an
accused from revealing incriminating information at that stage, while similar
oversight is not always possible during the pre-trial stage.
97. In
recent years, scholars such as David Dolinko (1986), Akhil Reed Amar (1997) and
Mike Redmayne (2007) among others have encapsulated the objections to the scope
of this right. [See: David Dolinko, `Is There a Rationale for the Privilege
Against Self-Incrimination?', 33 University of California Los Angeles Law
Review 1063 (1986); Akhil Reed Amar, The Constitution and Criminal Procedure:
First Principles (New Haven: Yale University Press, 1997) at pp. 65-70; Mike
Redmayne, `Re-thinking the Privilege against Self- incrimination', 27 Oxford
Journal of Legal Studies 209-232 (Summer 2007)] It is argued that in aiming to
create a fair state-individual balance in criminal cases, the task of the
investigators and prosecutors is made unduly difficult by allowing the accused
to remain silent. If the overall intent of the criminal justice system is to
ensure public safety through expediency in investigations and prosecutions, it
is urged that 106 the privilege against self-incrimination protects the guilty
at the cost of such utilitarian objectives. Another criticism is that adopting
a broad view of this right does not deter improper practices during
investigation and it instead encourages investigators to make false
representations to courts about the voluntary or involuntary nature of
custodial statements. It is reasoned that when investigators are under pressure
to deliver results there is an inadvertent tendency to rely on methods
involving coercion, threats, inducement or deception in spite of the legal
prohibitions against them. Questions have also been raised about conceptual
inconsistencies in the way that courts have expanded the scope of this right.
One such objection is that if the legal system is obliged to respect the mental
privacy of individuals, then why is there no prohibition against compelled testimony
in civil cases which could expose parties to adverse consequences. Furthermore,
questions have also been asked about the scope of the privilege being
restricted to testimonial acts while excluding physical evidence which can be
extracted through compulsion.
98. In
response to John Wigmore's thesis about the separate foundations of the `rule
against involuntary confessions', we must recognise the infusion of
constitutional values into all branches of law, including procedural areas such
as the law of evidence. While the above-mentioned criticisms have been made in
academic commentaries, we must defer to the judicial precedents that control
the scope of Article 20(3). For instance, the interrelationship between the
privilege against self- incrimination and the requirements of observing due
process of law were emphasized by William Douglas, J. in Rochin v.
California,
342 US 166 (1951), at p. 178:
"As
an original matter it might be debatable whether the provision in the Fifth
Amendment that no person `shall be compelled in any criminal case to be a
witness against himself' serves the ends of justice. Not all civilized legal
procedures recognize it. But the choice was made by the framers, a choice which
sets a standard for legal trials in this country. The Framers made it a
standard of due process for prosecutions by the Federal Government. If it is a
requirement of due process for a trial in the federal courthouse, it is
impossible for me to say it is not a requirement of due process for a trial in
the state courthouse."
108 I-A.
Whether the investigative use of the impugned techniques creates a likelihood
of incrimination for the subject?
99. The
respondents have submitted that the compulsory administration of the impugned
tests will only be sought to boost investigation efforts and that the test
results by themselves will not be admissible as evidence. The next prong of
this position is that if the test results enable the investigators to discover
independent materials that are relevant to the case, such subsequently
discovered materials should be admissible during trial. In order to evaluate
this position, we must answer the following questions:
7
Firstly, we should clarify the scope of the `right against self-incrimination'
- i.e. whether it should be construed as a broad protection that extends to the
investigation stage or should it be viewed as a narrower right confined to the
trial stage? 7 Secondly, we must examine the ambit of the words `accused of any
offence' in Article 20(3) - i.e. whether the 109 protection is available only
to persons who are formally accused in criminal cases, or does it extend to
include suspects and witnesses as well as those who apprehend incrimination in
cases other than the one being investigated? 7 Thirdly, we must evaluate the
evidentiary value of independent materials that are subsequently discovered
with the help of the test results. In light of the `theory of confirmation by
subsequent facts' incorporated in Section 27 of the Indian Evidence Act,
1872 we need to examine the compatibility between
this section and Article 20(3).
Of
special concern are situations when persons could be compelled to reveal
information which leads to the discovery of independent materials. To answer
this question, we must clarify what constitutes `incrimination' for the purpose
of invoking Article 20(3).
Applicability
of Article 20(3) to the stage of investigation 100. The question of whether
Article 20(3) should be narrowly construed as a trial right or a broad
protection that extends to 110 the stage of investigation has been conclusively
answered by our Courts. In M.P. Sharma v. Satish Chandra, [1954] SCR 1077, it
was held by Jagannadhadas, J. at pp. 1087-1088:
"Broadly
stated, the guarantee in Article 20(3) is against `testimonial compulsion'. It
is suggested that this is confined to the oral evidence of a person standing
his trial for an offence when called to the witness-stand. We can see no reason
to confine the content of the constitutional guarantee to this barely literal
import. So to limit it would be to rob the guarantee of its substantial purpose
and to miss the substance for the sound as stated in certain American
decisions. ..."
"Indeed,
every positive volitional act which furnished evidence is testimony, and
testimonial compulsion connotes coercion which procures the positive volitional
evidentiary acts of the person, as opposed to the negative attitude of silence
or submission on his part. Nor is there any reason to think that the protection
in respect of the evidence so procured is confined to what transpires at the
trial in the court room. The phrase used in Article 20(3) is `to be a witness'
and not to `appear as a witness':
It
follows that the protection afforded to an accused in so far as it is related
to the phrase `to be a witness' is not merely in respect of testimonial
compulsion in the court room but may well extend to compelled testimony
previously obtained from him. It is available therefore to a person against
whom a formal accusation relating to the commission of an offence has been
levelled which in the normal course may result in prosecution. Whether it is
available to other persons in other situations does not call for decision in this
case."
111 101.
These observations were cited with approval by B.P. Sinha, C.J. in State of
Bombay v. Kathi Kalu Oghad & Others, [1962] 3 SCR 10, at pp. 26-28. In the
minority opinion, Das Gupta, J. affirmed the same position, Id. at p. 40:
"...
If the protection was intended to be confined to being a witness in Court then
really it would have been an idle protection. It would be completely defeated
by compelling a person to give all the evidence outside court and then, having
what he was so compelled to do proved in court through other witnesses. An
interpretation which so completely defeats the constitutional guarantee cannot,
of course, be correct. The contention that the protection afforded by Article
20(3) is limited to the stage of trial must therefore be rejected."
102. The
broader view of Article 20(3) was consolidated in Nandini Satpathy v. P.L.
Dani, (1978) 2 SCC 424:
"...
Any giving of evidence, any furnishing of information, if likely to have an
incriminating impact, answers the description of being a witness against
oneself. Not being limited to the forensic stage by express words in Article
20(3), we have to construe the expression to apply to every stage where
furnishing of information and collection of materials takes place. That is to say,
even the investigation at the police level is embraced by Article 20(3).This is
precisely what Section 161(2) means. That sub-section relates to oral
examination by police officers and grants immunity at that stage. Briefly, the
Constitution and the Code are coterminus in the protective area. While the code
may be changed, the Constitution is more enduring. Therefore, we have to base
our conclusion not merely upon Section 161(2) but 112 on the more fundamental
protection, although equal in ambit, contained in Article 20(3)."
(at p.
435) "If the police can interrogate to the point of self- accusation, the
subsequent exclusion of that evidence at the trial hardly helps because the
harm has already been done. The police will prove through other evidence what
they have procured through forced confession. So it is that the foresight of
the framers has pre-empted self- incrimination at the incipient stages by not
expressly restricting it to the trial stage in court. True, compelled testimony
previously obtained is excluded. But the preventive blow falls also on
pre-court testimonial compulsion. The condition, as the decisions now go, is
that the person compelled must be an accused. Both precedent procurement and
subsequent exhibition of self-incriminating testimony are obviated by
intelligent constitutional anticipation." (at p. 449) 103. In upholding
this broad view of Article 20(3), V.R. Krishna Iyer, J. relied heavily on the
decision of the US Supreme Court in Ernesto Miranda v. Arizona, 384 US 436
(1966). The majority opinion (by Earl Warren, C.J.) laid down that custodial
statements could not be used as evidence unless the police officers had
administered warnings about the accused's right to remain silent. The decision
also recognised the right to consult a lawyer prior to and during the course of
custodial interrogations. The practice promoted by this case is 113 that it is
only after a person has `knowingly and intelligently' waived of these rights
after receiving a warning that the statements made thereafter can be admitted
as evidence. The safeguards were prescribed in the following manner, Id. at pp.
444-445:
"...
the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates
the use of procedural safeguards effective to secure the privilege against
self-incrimination. By custodial interrogation, we mean questioning initiated
by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way. [...] As
for the procedural safeguards to be employed, unless other fully effective
means are devised to inform accused persons of their right of silence and to
assure a continuous opportunity to exercise it, the following measures are
required. Prior to any questioning, the person must be warned that he has a
right to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either
retained or appointed. The defendant may waive effectuation of these rights,
provided the waiver is made voluntarily, knowingly and intelligently. If,
however, he indicates in any manner and at any stage of the process that he
wishes to consult with an attorney before speaking there can be no questioning.
Likewise, if the individual is alone and indicates in any manner that he does
not wish to be interrogated, the police may not question him. The mere fact
that he may have answered some questions or volunteered some statements on his
own does not deprive him of the right to refrain from answering any further 114
inquiries until he has consulted with an attorney and thereafter consents to be
questioned."
104.
These safeguards were designed to mitigate the disadvantages faced by a suspect
in a custodial environment.
This was
done in recognition of the fact that methods involving deception and
psychological pressure were routinely used and often encouraged in police
interrogations. Emphasis was placed on the ability of the person being
questioned to fully comprehend and understand the content of the stipulated
warning. It was held, Id. at pp. 457-458:
"In
these cases, we might not find the defendant's statements to have been
involuntary in traditional terms.
Our
concern for adequate safeguards to protect the precious Fifth Amendment right
is, of course, not lessened in the slightest. In each of the cases, the
defendant was thrust into an unfamiliar atmosphere and run through menacing
police interrogation procedures. ...
It is
obvious that such an interrogation environment is created for no purpose other
than to subjugate the individual to the will of his examiner. This atmosphere
carried its own badge of intimidation. To be sure, this is not physical
intimidation, but it is equally destructive of human dignity. [Professor
Sutherland, `Crime and Confessions', 79 Harvard Law Review 21, 37 (1965)] The
current practice of incommunicado interrogation is at odds with one of our
Nation's most cherished principles - that the individual may not be compelled
to incriminate himself. Unless adequate protective devices are employed to
dispel the compulsion inherent in custodial 115 surroundings, no statement
obtained from the defendant can truly be the product of his free choice."
105. The
opinion also explained the significance of having a counsel present during a
custodial interrogation. It was noted, Id. at pp. 469-470:
"The
circumstances surrounding in-custody interrogation can operate very quickly to
overbear the will of one merely made aware of his privilege by his
interrogators.
Therefore,
the right to have counsel present at the interrogation is indispensable to the
protection of the Fifth Amendment privilege under the system we delineate
today. Our aim is to assure that the individual's right to choose between
silence and speech remains unfettered throughout the interrogation process. A
once-stated warning, delivered by those who will conduct the interrogation,
cannot itself suffice to that end among those who most require knowledge of
their rights. A mere warning given by the interrogators is not alone sufficient
to accomplish that end. Prosecutors themselves claim that the admonishment of
the right to remain silent without more `will benefit only the recidivist and
the professional.' [Brief for the National District Attorneys Association as
amicus curiae, p. 14] Even preliminary advice given to the accused by his own
attorney can be swiftly overcome by the secret interrogation process.
[Cited
from Escobedo v. State of Illinois, 378 U.S. 478, 485 ...] Thus, the need for
counsel to protect the Fifth Amendment privilege comprehends not merely a right
to consult with counsel prior to questioning, but also to have counsel present
during any questioning if the defendant so desires."
116 106.
The majority decision in Miranda (supra.) was not a sudden development in U.S.
constitutional law. The scope of the privilege against self-incrimination had
been progressively expanded in several prior decisions. The notable feature was
the recognition of the interrelationship between the Fifth Amendment and the
Fourteenth Amendment's guarantee that the government must observe the `due
process of law' as well as the Fourth Amendment's protection against
`unreasonable search and seizure'. While it is not necessary for us to survey
these decisions, it will suffice to say that after Miranda (supra.),
administering a warning about a person's right to silence during custodial
interrogations as well as obtaining a voluntary waiver of the prescribed rights
has become a ubiquitous feature in the U.S. criminal justice system. In the
absence of such a warning and voluntary waiver, there is a presumption of
compulsion with regard to the custodial statements, thereby rendering them
inadmissible as evidence.
The
position in India is different since there is no automatic presumption of
compulsion in respect of custodial statements.
117
However, if the fact of compulsion is proved then the resulting statements are
rendered inadmissible as evidence.
Who can
invoke the protection of Article 20(3)? 107. The decision in Nandini Satpathy's
case, (supra.) also touched on the question of who is an `accused' for the
purpose of invoking Article 20(3). This question had been left open in M.P.
Sharma's case (supra.). Subsequently, it was addressed in Kathi Kalu Oghad
(supra.), at p. 37:
"To
bring the statement in question within the prohibition of Article 20(3), the
person accused must have stood in the character of an accused person at the
time he made the statement. It is not enough that he should become an accused,
anytime after the statement has been made."
108.
While there is a requirement of formal accusation for a person to invoke
Article 20(3) it must be noted that the protection contemplated by Section
161(2), CrPC is wider.
Section
161(2) read with 161(1) protects `any person supposed to be acquainted with the
facts and circumstances of the case' in the course of examination by the
police. The language of this provision is as follows:
118 161.
Examination of witnesses by police.
(1) Any
police officer making an investigation under this Chapter, or any police
officer not below such rank as the State Government may, by general or special
order, prescribe in this behalf, acting on the requisition of such officer, may
examine orally any person supposed to be acquainted with the facts and
circumstances of the case.
(2) Such
person shall be bound to answer truly all questions relating to such case put
to him by such officer, other than questions the answers to which would have a
tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The
police officer may reduce into writing any statement made to him in the course
of an examination under this section; and if he does so, he shall make a
separate and true record of the statement of each such person whose statement
he records.
109.
Therefore the `right against self-incrimination' protects persons who have been
formally accused as well as those who are examined as suspects in criminal
cases. It also extends to cover witnesses who apprehend that their answers
could expose them to criminal charges in the ongoing investigation or even in
cases other than the one being investigated.
Krishna
Iyer, J. clarified this position, (1978) 2 SCC 424, at p.
"The
learned Advocate General, influenced by American decisions rightly agreed that
in expression Section 161(2) of the Code might cover not merely accusations
already registered in police stations but those which are likely to 119 be the
basis for exposing a person to a criminal charge.
Indeed,
this wider construction, if applicable to Article 20(3), approximates the
constitutional clause to the explicit statement of the prohibition in Section
161(2).
This
latter provision meaningfully uses the expression `expose himself to a criminal
charge'. Obviously, these words mean, not only cases where the person is
already exposed to a criminal charge but also instances which will imminently
expose him to criminal charges."
It was further
observed, Id. at pp. 451-452 (Para. 50):
"...
`To be a witness against oneself' is not confined to the particular offence
regarding which the questioning is made but extends to other offences about
which the accused has reasonable apprehension of implication from his answer.
This conclusion also flows from `tendency to be exposed to a criminal charge'.
A `criminal charge' covers any criminal charge then under investigation or
trial or which imminently threatens the accused."
110. Even
though Section 161(2) of the CrPC casts a wide protective net to protect the
formally accused persons as well as suspects and witnesses during the
investigative stage, Section 132 of the Evidence Act limits the applicability
of this protection to witnesses during the trial stage. The latter provision
provides that witnesses cannot refuse to answer questions during a trial on the
ground that the answers could incriminate them. However, the proviso to this
section stipulates that the content of such answers cannot expose the 120
witness to arrest or prosecution, except for a prosecution for giving false
evidence. Therefore, the protection accorded to witnesses at the stage of trial
is not as wide as the one accorded to the accused, suspects and witnesses
during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower
than the protection given to the accused during the trial stage [under Section
313(3) and Proviso (b) to Section 315(1), CrPC]. The legislative intent is to
preserve the fact- finding function of a criminal trial. Section 132 of the
Evidence Act reads:- "132. Witness not excused from answering on ground
that answer will criminate. - A witness shall not be excused from answering any
question as to any matter relevant to the matter in issue in any suit or in any
civil or criminal proceeding, upon the ground that the answer to such question
will criminate, or may tend directly or indirectly to criminate, such witness,
or that it will expose, or tend directly or indirectly to expose, such witness
to a penalty or forfeiture of any kind.
Proviso.
- Provided that no such answer, which a witness shall be compelled to give,
shall subject him to any arrest or prosecution, or be proved against him in any
criminal proceeding, except a prosecution for giving false evidence by such
answer."
121 111.
Since the extension of the `right against self- incrimination' to suspects and
witnesses has its basis in Section 161(2), CrPC it is not readily available to
persons who are examined during proceedings that are not governed by the code.
There is a distinction between proceedings of a purely criminal nature and
those proceedings which can culminate in punitive remedies and yet cannot be
characterised as criminal proceedings. The consistent position has been that
ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that
cannot be characterised as criminal proceedings. In administrative and
quasi-criminal proceedings, the protection of Article 20(3) becomes available
only after a person has been formally accused of committing an offence. For
instance in Raja Narayanlal Bansilal v.
Maneck
Phiroz Mistry, [1961] 1 SCR 417, the contention related to the admissibility of
a statement made before an inspector who was appointed under the Companies Act,
1923 to investigate the affairs of a company and report thereon. It had to be
decided whether the persons who were examined by 122 the concerned inspector
could claim the protection of Article 20(3). The question was answered, Id. at
p. 438:
"The
scheme of the relevant sections is that the investigation begins broadly with a
view to examine the management of the affairs of the company to find out
whether any irregularities have been committed or not. In such a case there is
no accusation, either formal or otherwise, against any specified individual;
there may be a general allegation that the affairs are irregularly, improperly
or illegally managed ; but who would be responsible for the affairs which are
reported to be irregularly managed is a matter which would be determined at the
end of the enquiry. At the commencement of the enquiry and indeed throughout
its proceedings there is no accused person, no accuser, and no accusation
against anyone that he has committed an offence. In our opinion a general
enquiry and investigation into the affairs of the company thus contemplated
cannot be regarded as an investigation which starts with an accusation
contemplated in Article 20(3) of the Constitution. ..."
112. A
similar issue arose for consideration in Romesh Chandra Mehta v. State of West
Bengal, [1969] 2 SCR 461, wherein it was held, at p. 472:
"Normally
a person stands in the character of an accused when a First Information Report
is lodged against him in respect of an offence before an officer competent to
investigate it, or when a complaint is made relating to the commission of an
offence before a Magistrate competent to try or send to another Magistrate for
trial of the offence. Where a Customs Officer arrests a person and informs that
person of the grounds of his arrest, [which 123 he is bound to do under Article
22(1) of the Constitution] for the purpose of holding an inquiry into the
infringement of the provisions of the Sea Customs Act which he has reason to
believe has taken place, there is no formal accusation of an offence. In the
case of an offence by infringement of the Sea Customs Act which is punishable
at the trial before a Magistrate, there is an accusation when a complaint is
lodged by an officer competent in that behalf before the Magistrate."
113. In
Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600, one of the
contentious issues was whether the statements recorded by a Railway Police
Force (RPF) officer during an inquiry under the Railway Property (Unlawful
Possession) Act, 1996 would attract the protection of Article 20(3). Sarkaria,
J. held that such an inquiry was substantially different from an investigation
contemplated under the CrPC, and therefore formal accusation was a necessary
condition for a person to claim the protection of Article 20(3). It was
observed, Id. at p. 623:
"To
sum up, only a person against whom a formal accusation of the commission of an
offence has been made can be a person `accused of an offence' within the
meaning of Article 20(3). Such formal accusation may be specifically made
against him in an FIR or a formal complaint or any other formal document or
notice served on that person, which ordinarily results in his prosecution in
court. In the instant case no such formal 124 accusation has been made against
the appellant when his statements in question were recorded by the RPF
Officer."
What
constitutes `incrimination' for the purpose of Article 20(3)? 114. We can now
examine the various circumstances that could `expose a person to criminal
charges'. The scenario under consideration is one where a person in custody is
compelled to reveal information which aids the investigation efforts. The
information so revealed can prove to be incriminatory in the following ways:
7 The
statements made in custody could be directly relied upon by the prosecution to
strengthen their case.
However,
if it is shown that such statements were made under circumstances of
compulsion, they will be excluded from the evidence.
7 Another
possibility is that of `derivative use', i.e. when information revealed during
questioning leads to the discovery of independent materials, thereby furnishing
a 125 link in the chain of evidence gathered by the investigators.
7 Yet
another possibility is that of `transactional use', i.e. when the information
revealed can prove to be helpful for the investigation and prosecution in cases
other than the one being investigated.
7 A
common practice is that of extracting materials or information, which are then
compared with materials that are already in the possession of the
investigators.
For
instance, handwriting samples and specimen signatures are routinely obtained
for the purpose of identification or corroboration.
115. The
decision in Nandini Satpathy's case (supra.) sheds light on what constitutes
incrimination for the purpose of Article 20(3). Krishna Iyer, J. observed, at
pp. 449-450:
"In
this sense, answers that would in themselves support a conviction are
confessions but answers which have a reasonable tendency strongly to point out
to the guilt of the accused are incriminatory. Relevant replies which furnish a
real and clear link in the chain of evidence indeed to bind down the accused
with the crime become 126 incriminatory and offend Article 20(3) if elicited by
pressure from the mouth of the accused. ...
An answer
acquires confessional status only if, in terms or substantially, all the facts
which constitute the offence are admitted by the offender. If his statement
also contains self-exculpatory matter it ceases to be a confession. Article
20(3) strikes at confessions and self- incriminations but leaves untouched
other relevant facts."
116.
Reliance was also placed on the decision of the US Supreme Court in Samuel
Hoffman v. United States, 341 US 479 (1951). The controversy therein was
whether the privilege against self-incrimination was available to a person who
was called on to testify as a witness in a grand-jury investigation.
Clark, J.
answered the question in the affirmative, at p. 486:
"The
privilege afforded not only extends to answers that would in themselves support
a conviction under a federal criminal statute but likewise embraces those which
would furnish a link in the chain of evidence needed to prosecute the claimant
for a federal crime. [...] But this protection must be confined to instances
where the witness has reasonable cause to apprehend danger from a direct
answer. [...]"
(internal
citations omitted) "To sustain the privilege, it need only be evident from
the implications of the question, in the setting in which it is asked, that a
responsive answer to the question or an 127 explanation of why it cannot be
answered might be dangerous because injurious disclosure may result."
(at p.
487) 117. However, Krishna Iyer, J. also cautioned against including in the
prohibition even those answers which might be used as a step towards obtaining
evidence against the accused. It was stated, (1978) 2 SCC 424, at p. 451:
"The
policy behind the privilege, under our scheme, does not swing so wide as to
sweep out of admissibility statements neither confessional per se nor guilty in
tendency but merely relevant facts which, viewed in any setting, does not have
a sinister import. To spread the net so wide is to make a mockery of the
examination of the suspect, so necessitous in the search for truth.
Overbreadth
undermines, and we demur to such morbid exaggeration of a wholesome protection.
...
In Kathi
Kalu Oghad's case, this Court authoritatively observed, on the bounds between
constitutional proscription and testimonial permission:
`In order
that a testimony by an accused person may be said to have been
self-incriminatory, the compulsion of which comes within the prohibition of the
constitutional provisions, it must be of such a character that by itself it
should have the tendency of incriminating the accused, if not also of actually
doing so. In other words, it should be a statement which makes the case against
the accused at least probable, considered by itself.' [1962] 3 SCR 10, 32 Again
the Court indicated that Article 20(3) could be invoked only against statements
which `had a material bearing on the criminality of the maker of the
statement'.
128 `By
itself' does not exclude the setting or other integral circumstances but means
something in the fact disclosed a guilt element. Blood on clothes, gold bars
with notorious marks and presence on the scene or possession of the lethal
weapon or corrupt currency have a tale to tell, beyond red fluid, precious
metal, gazing at the stars or testing sharpness or value of the rupee. The
setting of the case is an implied component of the statement."
118. In
light of these observations, we must examine the permissibility of extracting
statements which may furnish a link in the chain of evidence and hence create a
risk of exposure to criminal charges. The crucial question is whether such
derivative use of information extracted in a custodial environment is
compatible with Article 20(3). It is a settled principle that statements made
in custody are considered to be unreliable unless they have been subjected to
cross- examination or judicial scrutiny. The scheme created by the Code of
Criminal Procedure and the Indian Evidence Act also
mandates that confessions made before police officers are ordinarily not
admissible as evidence and it is only the statements made in the presence of a
judicial magistrate which can be given weightage. The doctrine of excluding the
129 `fruits of a poisonous tree' has been incorporated in Sections 24, 25 and
26 of the Indian Evidence Act, 1872 which read as follows:
24.
Confession caused by inducement, threat or promise, when irrelevant in criminal
proceeding. - A confession made by an accused person is irrelevant in a
criminal proceeding, if the making of the confession appears to the Court to
have been caused by any inducement, threat or promise, having reference to the
charge against the accused person, proceeding from a person in authority and
sufficient, in the opinion of the Court, to give the accused person grounds,
which would appear to him reasonable, for supposing that by making it he would
gain any advantage or avoid any evil of a temporal nature in reference to the
proceedings against him.
25.
Confession to police officer not proved. - No confession made to a police
officer shall be proved as against a person accused of any offence.
26.
Confession by accused while in custody of police not to be proved against him.
- No confession made by any person whilst he is in the custody of a police
officer, unless it be made in the immediate presence of a Magistrate, shall be
proved as against such person.
119. We
have already referred to the language of Section 161, CrPC which protects the
accused as well as suspects and witnesses who are examined during the course of
investigation in a criminal case. It would also be useful to refer to Sections
130 162, 163 and 164 of the CrPC which lay down procedural safeguards in
respect of statements made by persons during the course of investigation.
However, Section 27 of the Evidence Act incorporates the `theory of confirmation
by subsequent facts' - i.e. statements made in custody are admissible to the
extent that they can be proved by the subsequent discovery of facts. It is
quite possible that the content of the custodial statements could directly lead
to the subsequent discovery of relevant facts rather than their discovery
through independent means. Hence such statements could also be described as
those which `furnish a link in the chain of evidence' needed for a successful
prosecution. This provision reads as follows:
27. How
much of information received from accused may be proved. - Provided that, when
any fact is deposed to as discovered in consequence of information received
from a person accused of any offence, in the custody of a police officer, so
much of such information, whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.
120. This
provision permits the derivative use of custodial statements in the ordinary
course of events. In Indian law, 131 there is no automatic presumption that the
custodial statements have been extracted through compulsion. In short, there is
no requirement of additional diligence akin to the administration of Miranda
warnings. However, in circumstances where it is shown that a person was indeed
compelled to make statements while in custody, relying on such testimony as
well as its derivative use will offend Article 20(3). The relationship between
Section 27 of the Evidence Act and Article 20(3) of the Constitution was
clarified in Kathi Kalu Oghad (supra.). It was observed in the majority opinion
by Jagannadhadas, J., at pp. 33-34:
"The
information given by an accused person to a police officer leading to the
discovery of a fact which may or may not prove incriminatory has been made
admissible in evidence by that Section. If it is not incriminatory of the
person giving the information, the question does not arise. It can arise only
when it is of an incriminatory character so far as the giver of the information
is concerned. If the self-incriminatory information has been given by an
accused person without any threat, that will be admissible in evidence and that
will not be hit by the provisions of cl. (3) of Art. 20 of the Constitution for
the reason that there has been no compulsion. It must, therefore, be held that
the provisions of s. 27 of the Evidence Act are not within the prohibition
aforesaid, unless compulsion has been used in obtaining the information."
(emphasis
supplied) 132 This position was made amply clear at pp. 35-36:
"Hence,
the mere fact that the accused person, when he made the statement in question
was in police custody would not, by itself, be the foundation for an inference
of law that the accused was compelled to make the statement. Of course, it is
open to an accused person to show that while he was in police custody at the
relevant time, he was subjected to treatment which, in the circumstances of the
case, would lend itself to the inference that compulsion was, in fact,
exercised. In other words, it will be a question of fact in each case to be
determined by the Court on weighing the facts and circumstances disclosed in
the evidence before it."
121. The
minority opinion also agreed with the majority's conclusion on this point since
Das Gupta, J., held at p. 47:
"Section
27 provides that when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a
police officer, so much of the information, whether it amounts to a confession
or not, as relates distinctly to the fact thereby discovered, may be proved. It
cannot be disputed that by giving such information the accused furnishes
evidence, and therefore is a `witness' during the investigation. Unless,
however he is `compelled' to give the information he cannot be said to be
`compelled' to be a witness; and so Article 20(3) is not infringed.
Compulsion
is not however inherent in the receipt of information from an accused person in
the custody of a police officer. There may be cases where an accused in custody
is compelled to give the information later on sought to be proved under s. 27.
There will be other cases where the accused gives the information without any
compulsion. Where the accused is compelled to give 133 information it will be an
infringement of Art. 20(3); but there is no such infringement where he gives
the information without any compulsion. ..."
122. We
must also address another line of reasoning which was adopted in one of the
impugned judgments. It was stated that the exclusionary rule in evidence law is
applicable to statements that are inculpatory in nature. Based on this premise,
it was observed that at the time of administering the impugned tests, it cannot
be ascertained whether the resulting revelations or inferences will prove to be
inculpatory or exculpatory in due course. Taking this reasoning forward, it was
held that the compulsory administration of the impugned tests should be
permissible since the same does not necessarily lead to the extraction of
inculpatory evidence. We are unable to agree with this reasoning.
123. The
distinction between inculpatory and exculpatory evidence gathered during
investigation is relevant for deciding what will be admissible as evidence
during the trial stage. The exclusionary rule in evidence law mandates that if
inculpatory 134 evidence has been gathered through improper methods (involving
coercion, threat or inducement among others) then the same should be excluded
from the trial, while there is no such prohibition on the consideration of
exculpatory evidence.
However,
this distinction between the treatment of inculpatory and exculpatory evidence
is made retrospectively at the trial stage and it cannot be extended back to
the stage of investigation. If we were to permit the admission of involuntary
statement on the ground that at the time of asking a question it is not known
whether the answer will be inculpatory or exculpatory, the `right against
self-incrimination' will be rendered meaningless. The law confers on `any
person' who is examined during an investigation, an effective choice between
speaking and remaining silent. This implies that it is for the person being
examined to decide whether the answer to a particular question will eventually
prove to be inculpatory or exculpatory. Furthermore, it is also likely that the
information or materials collected at an earlier stage of investigation can prove
to be inculpatory in due course.
135 124.
However, it is conceivable that in some circumstances the testimony extracted
through compulsion may not actually lead to exposure to criminal charges or
penalties. For example this is a possibility when the investigators make an
offer of immunity against the direct use, derivative use or transactional use
of the testimony. Immunity against direct use entails that a witness will not
be prosecuted on the basis of the statements made to the investigators. A protection
against derivative use implies that a person will not be prosecuted on the
basis of the fruits of such testimony.
Immunity
against transactional use will shield a witness from criminal charges in cases
other than the one being investigated. It is of course entirely up to the
investigating agencies to decide whether to offer immunity and in what form.
Even though this is distinctly possible, it is difficult to conceive of such a
situation in the context of the present case.
A person
who is given an offer of immunity against prosecution is far more likely to
voluntarily cooperate with the investigation efforts. This could be in the form
of giving testimony or helping in the discovery of material evidence. If a 136
person is freely willing to cooperate with the investigation efforts, it would
be redundant to compel such a person to undergo the impugned tests. If reliance
on such tests is sought for refreshing a cooperating witness' memory, the
person will in all probability give his/her consent to undergo these tests.
125. It
could be argued that the compulsory administration of the impugned tests can
prove to be useful in instances where the cooperating witness has difficulty in
remembering the relevant facts or is wilfully concealing crucial details. Such
situations could very well arise when a person who is a co- accused is offered
immunity from prosecution in return for cooperating with the investigators.
Even though the right against self-incrimination is not directly applicable in
such situations, the relevant legal inquiry is whether the compulsory
administration of the impugned tests meets the requisite standard of
`substantive due process' for placing restraints on personal liberty.
137 126.
At this juncture, it must be reiterated that Indian law incorporates the `rule
against adverse inferences from silence' which is operative at the trial stage.
As mentioned earlier, this position is embodied in a conjunctive reading of
Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b)
of Section 315(1) of the CrPC. The gist of this position is that even though an
accused is a competent witness in his/her own trial, he/she cannot be compelled
to answer questions that could expose him/her to incrimination and the trial
judge cannot draw adverse inferences from the refusal to do so. This position
is cemented by prohibiting any of the parties from commenting on the failure of
the accused to give evidence.
This rule
was lucidly explained in the English case of Woolmington v. DPP, (1935) AC 462,
at p. 481:
"The
`right to silence' is a principle of common law and it means that normally
courts or tribunals of fact should not be invited or encouraged to conclude, by
parties or prosecutors, that a suspect or an accused is guilty merely because he
has refused to respond to questions put to him by the police or by the
Court."
127. The
180th Report of the Law Commission of India (May 2002) dealt with this very
issue. It considered arguments for 138 diluting the `rule against adverse
inferences from silence'.
Apart
from surveying several foreign statutes and decisions, the report took note of
the fact that Section 342(2) of the erstwhile Code of Criminal Procedure, 1898
permitted the trial judge to draw an inference from the silence of the accused.
However,
this position was changed with the enactment of the new Code of Criminal
Procedure in 1973, thereby prohibiting the making of comments as well as the
drawing of inferences from the fact of an accused's silence. In light of this,
the report concluded:
"...
We have reviewed the law in other countries as well as in India for the purpose
of examining whether any amendments are necessary in the Code of Criminal
Procedure, 1973. On a review, we find that no changes in the law relating to
silence of the accused are necessary and if made, they will be ultra vires of
Article 20(3) and Article 21 of the Constitution of India. We recommend
accordingly."
128. Some
commentators have argued that the `rule against adverse inferences from
silence' should be broadly construed in order to give protection against
non-penal consequences. It is reasoned that the fact of a person's refusal to
answer questions should not be held against him/her in a wide variety 139 of
settings, including those outside the context of criminal trials. A
hypothetical illustration of such a setting is a deportation hearing where an
illegal immigrant could be deported following a refusal to answer questions or
furnish materials required by the concerned authorities. This question is
relevant for the present case because a person who refuses to undergo the
impugned tests during the investigative stage could face non-penal consequences
which lie outside the protective scope of Article 20(3). For example, a person
who refuses to undergo these tests could face the risk of custodial violence,
increased police surveillance or harassment thereafter. Even a person who is
compelled to undergo these tests could face such adverse consequences on
account of the contents of the test results if they heighten the investigators'
suspicions. Each of these consequences, though condemnable, fall short of the
requisite standard of `exposure to criminal charges and penalties' that has
been enumerated in Section 161(2) of the CrPC. Even though Article 20(3) will not
be applicable in such circumstances, reliance can be placed on Article 21 if
such non-penal consequences amount to a 140 violation of `personal liberty' as
contemplated under the Constitution. In the past, this Court has recognised the
rights of prisoners (undertrials as well as convicts) as well as individuals in
other custodial environments to receive `fair, just and equitable' treatment.
For instance in Sunil Batra v.
Delhi
Administration, (1978) 4 SCC 494, it was decided that practices such as `solitary
confinement' and the use of bar- fetters in jails were violative of Article 21.
Hence, in circumstances where persons who refuse to answer questions during the
investigative stage are exposed to adverse consequences of a non-penal nature,
the inquiry should account for the expansive scope of Article 21 rather than
the right contemplated by Article 20(3).
I-B.
Whether the results derived from the impugned techniques amount to `testimonial
compulsion' thereby attracting the bar of Article 20(3)? 129. The next issue is
whether the results gathered from the impugned tests amount to `testimonial
compulsion', thereby 141 attracting the prohibition of Article 20(3). For this
purpose, it is necessary to survey the precedents which deal with what
constitutes `testimonial compulsion' and how testimonial acts are distinguished
from the collection of physical evidence.
Apart
from the apparent distinction between evidence of a testimonial and physical
nature, some forms of testimonial acts lie outside the scope of Article 20(3).
For instance, even though acts such as compulsorily obtaining specimen
signatures and handwriting samples are testimonial in nature, they are not
incriminating by themselves if they are used for the purpose of identification
or corroboration with facts or materials that the investigators are already
acquainted with.
The
relevant consideration for extending the protection of Article 20(3) is whether
the materials are likely to lead to incrimination by themselves or `furnish a
link in the chain of evidence' which could lead to the same result. Hence,
reliance on the contents of compelled testimony comes within the prohibition of
Article 20(3) but its use for the purpose of identification or corroboration
with facts already known to the investigators is not barred.
142 130.
It is quite evident that the narcoanalysis technique involves a testimonial
act. A subject is encouraged to speak in a drug-induced state, and there is no
reason why such an act should be treated any differently from verbal answers
during an ordinary interrogation. In one of the impugned judgments, the
compulsory administration of the narcoanalysis technique was defended on the
ground that at the time of conducting the test, it is not known whether the
results will eventually prove to be inculpatory or exculpatory. We have already
rejected this reasoning. We see no other obstruction to the proposition that
the compulsory administration of the narcoanalysis technique amounts to
`testimonial compulsion' and thereby triggers the protection of Article 20(3).
131.
However, an unresolved question is whether the results obtained through
polygraph examination and the BEAP test are of a testimonial nature. In both
these tests, inferences are drawn from the physiological responses of the subject
and no direct reliance is placed on verbal responses. In some forms of 143
polygraph examination, the subject may be required to offer verbal answers such
as `Yes' or `No', but the results are based on the measurement of changes in
several physiological characteristics rather than these verbal responses. In
the BEAP test, the subject is not required to give any verbal responses at all
and inferences are drawn from the measurement of electrical activity in the
brain. In the impugned judgments, it has been held that the results obtained
from both the Polygraph examination and the BEAP test do not amount to
`testimony' thereby lying outside the protective scope of Article 20(3). The
same assertion has been reiterated before us by the counsel for the respondents.
In order to evaluate this position, we must examine the contours of the
expression `testimonial compulsion'.
132. The
question of what constitutes `testimonial compulsion' for the purpose of
Article 20(3) was addressed in M.P.
Sharma's
case (supra.). In that case, the Court considered whether the issuance of
search warrants in the course of an investigation into the affairs of a company
(following 144 allegations of misappropriation and embezzlement) amounted to an
infringement of Article 20(3). The search warrants issued under Section 96 of
the erstwhile Code of Criminal Procedure, 1898 authorised the investigating
agencies to search the premises and seize the documents maintained by the said
company. The relevant observations were made by Jagannadhadas, J., at pp.
1087-1088:
"
... The phrase used in Article 20(3) is `to be a witness'. A person can `be a
witness' not merely by giving oral evidence but also by producing documents or
making intelligible gestures as in the case of a dumb witness [see Section 119
of the Evidence Act or the like]. `To be a witness' is nothing more than `to
furnish evidence', and such evidence can be furnished through the lips or by
production of a thing or of a document or in other modes.
...
Indeed,
every positive volitional act which furnishes evidence is testimony, and
testimonial compulsion connotes coercion which procures the positive volitional
evidentiary acts of the person, as opposed to the negative attitude of silence
or submission on his part. ..."
133. These
observations suggest that the phrase `to be a witness' is not confined to oral
testimony for the purpose of invoking Article 20(3) and that it includes
certain non-verbal forms of conduct such as the production of documents and 145
the making of intelligible gestures. However, in Kathi Kalu Oghad (supra.),
there was a disagreement between the majority and minority opinions on whether
the expression `to be a witness' was the same as `to furnish evidence'. In that
case, this Court had examined whether certain statutory provisions, namely -
Section 73 of the Evidence Act, Sections 5 and 6 of the Identification of
Prisoners Act, 1920 and Section 27 of the Evidence
Act were compatible with Article 20(3).
Section
73 of the Evidence Act empowered courts to obtain specimen handwriting or
signatures and finger impressions of an accused person for purposes of
comparison. Sections 5 and 6 of the Identification of Prisoners Act empowered a Magistrate to obtain the photograph or
measurements of an accused person. In respect of Section 27 of the Evidence
Act, there was an agreement between the majority and the minority opinions that
the use of compulsion to extract custodial statements amounts to an exception
to the `theory of confirmation by subsequent facts'. We have already referred
to the relevant observations in an earlier part of this opinion. Both the
majority and minority opinions ruled that the other statutory 146 provisions
mentioned above were compatible with Article 20(3), but adopted different
approaches to arrive at this conclusion.
In the
majority opinion it was held that the ambit of the expression `to be a witness'
was narrower than that of `furnishing evidence'. B.P. Sinha, C.J. observed,
[1962] 3 SCR 10, at pp. 29-32:
"
`To be a witness' may be equivalent to `furnishing evidence' in the sense of
making oral or written statements, but not in the larger sense of the
expression so as to include giving of thumb impression or impression of palm or
foot or fingers or specimen writing or exposing a part of the body by an
accused person for purpose of identification. `Furnishing evidence' in the
latter sense could not have been within the contemplation of the
Constitution-makers for the simple reason that - though they may have intended
to protect an accused person from the hazards of self- incrimination, in the
light of the English Law on the subject - they could not have intended to put
obstacles in the way of efficient and effective investigation into crime and of
bringing criminals to justice. The taking of impressions or parts of the body
of an accused person very often becomes necessary to help the investigation of
a crime. It is as much necessary to protect an accused person against being
compelled to incriminate himself, as to arm the agents of law and the law
courts with legitimate powers to bring offenders to justice.
Furthermore
it must be assumed that the Constitution- makers were aware of the existing
law, for example, Section 73 of the Evidence Act or Section 5 and 6 of the
Identification of Prisoners Act (XXXIII of 1920).
147 ...
The giving of finger impression or of specimen signature or of handwriting,
strictly speaking, is not `to be a witness'. `To be a witness' means imparting
knowledge in respect of relevant fact, by means of oral statements or
statements in writing, by a person who has personal knowledge of the facts to
be communicated to a court or to a person holding an enquiry or investigation.
A person
is said `to be a witness' to a certain state of facts which has to be
determined by a court or authority authorised to come to a decision, by
testifying to what he has seen, or something he has heard which is capable of
being heard and is not hit by the rule excluding hearsay or giving his opinion,
as an expert, in respect of matters in controversy. Evidence has been classified
by text writers into three categories, namely, (1) oral testimony;
(2)
evidence furnished by documents; and (3) material evidence. We have already
indicated that we are in agreement with the Full Court decision in Sharma's
case, [1954] SCR 1077, that the prohibition in cl. (3) of Art. 20 covers not
only oral testimony given by a person accused of an offence but also his
written statements which may have a bearing on the controversy with reference
to the charge against him. ...
...
Self-incrimination must mean conveying information based upon the personal
knowledge of the person giving the information and cannot include merely the
mechanical process of producing documents in court which may throw a light on
any of the points in controversy, but which do not contain any statement of the
accused based on his personal knowledge. For example, the accused person may be
in possession of a document which is in his writing or which contains his
signature or his thumb impression. The production of such a document, with a
view to comparison of the writing or the signature or the impression, is not
the statement of an accused person, which can be said to be of the nature of a
personal testimony. When an accused person is called upon by the Court or any
other authority 148 holding an investigation to give his finger impression or
signature or a specimen of his handwriting, he is not giving any testimony of
the nature of a `personal testimony'. The giving of a `personal testimony' must
depend on his volition. He can make any kind of statement or may refuse to make
any statement. But his finger impressions or his handwriting, in spite of
efforts at concealing the true nature of it by dissimulation cannot change
their intrinsic character. Thus, the giving of finger impressions or of
specimen writing or of signatures by an accused person, though it may amount to
`furnishing evidence' in the larger sense, is not included within the
expression `to be a witness'.
In order
that a testimony by an accused person may be said to have been
self-incriminatory, the compulsion of which comes within the prohibition of the
constitutional provision, it must be of such a character that by itself it
should have the tendency of incriminating the accused, if not also of actually
doing so. In other words, it should be a statement which makes the case against
the accused person atleast probable, considered by itself. A specimen
handwriting or signature or finger impressions by themselves are no testimony
at all, being wholly innocuous because they are unchangeable except in rare
cases where the ridges of the fingers or the style of writing have been
tampered with. They are only materials for comparison in order to lend
assurance to the Court that its inference based on other pieces of evidence is
reliable. They are neither oral nor documentary evidence but belong to the
third category of material evidence which is outside the limit of
`testimony'."
134.
Hence, B.P. Sinha, C.J. construed the expression `to be a witness' as one that
was limited to oral or documentary evidence, while further confining the same
to statements that 149 could lead to incrimination by themselves, as opposed to
those used for the purpose of identification or comparison with facts already
known to the investigators. The minority opinion authored by Das Gupta, J. (3
judges) took a different approach, which is evident from the following
extracts, Id. at pp. 40-43:
"That
brings us to the suggestion that the expression `to be a witness' must be
limited to a statement whether oral or in writing by an accused person
imparting knowledge of relevant facts; but that mere production of some
material evidence, whether documentary or otherwise would not come within the
ambit of this expression. This suggestion has found favour with the majority of
the Bench, we think however that this is an unduly narrow interpretation. We
have to remind ourselves that while on the one hand we should bear in mind that
the Constitution-makers could not have intended to stifle legitimate modes of investigation
we have to remember further that quite clearly they thought that certain things
should not be allowed to be done, during the investigation, or trial, however
helpful they might seem to be to the unfolding of truth and an unnecessary
apprehension of disaster to the police system and the administration of
justice, should not deter us from giving the words their proper meaning. It
appears to us that to limit the meaning of the words `to be a witness' in Art.
20(3) in
the manner suggested would result in allowing compulsion to be used in
procuring the production from the accused of a large number of documents, which
are of evidentiary value, sometimes even more so than any oral statement of a
witness might be. ...
150 ...
There can be no doubt that to the ordinary user of English words, the word
`witness' is always associated with evidence, so that to say that `to be a
witness' is to `furnish evidence' is really to keep to the natural meaning of
the words. ...
... It is
clear from the scheme of the various provisions, dealing with the matter that
the governing idea is that to be evidence, the oral statement or a statement
contained in a document, shall have a tendency to prove a fact - whether it be
a fact in issue or a relevant fact - which is sought to be proved. Though this
definition of evidence is in respect of proceedings in Court it will be proper,
once we have come to the conclusion, that the protection of Art. 20(3) is
available even at the stage of investigation, to hold that at that stage also
the purpose of having a witness is to obtain evidence and the purpose of
evidence is to prove a fact.
The
illustrations we have given above show clearly that it is not only by imparting
of his knowledge that an accused person assists the proving of a fact; he can
do so even by other means, such as the production of documents which though not
containing his own knowledge would have a tendency to make probable the
existence of a fact in issue or a relevant fact."
135. Even
though Das Gupta, J. saw no difference between the scope of the expressions `to
be a witness' and `to furnish evidence', the learned judge agreed with the
majority's conclusion that for the purpose of invoking Article 20(3) the
evidence must be incriminating by itself. This entailed that evidence could be
relied upon if it is used only for the purpose 151 of identification or
comparison with information and materials that are already in the possession of
the investigators. The following observations were made at pp. 45-46:
"
... But the evidence of specimen handwriting or the impressions of the accused
person's fingers, palm or foot, will incriminate him, only if on comparison of
these with certain other handwritings or certain other impressions, identity
between the two sets is established. By themselves, these impressions or the
handwritings do not incriminate the accused person, or even tend to do so.
That is
why it must be held that by giving these impressions or specimen handwriting,
the accused person does not furnish evidence against himself. ...
... This
view, it may be pointed out does not in any way militate against the policy
underlying the rule against `testimonial compulsion' we have already discussed
above. There is little risk, if at all, in the investigator or the prosecutor
being induced to lethargy or inaction because he can get such handwriting or
impressions from an accused person. For, by themselves they are of little or of
no assistance to bring home the guilt of an accused. Nor is there any chance of
the accused to mislead the investigator into wrong channels by furnishing false
evidence. For, it is beyond his power to alter the ridges or other
characteristics of his hand, palm or finger or to alter the characteristics of
his handwriting.
We agree
therefore with the conclusion reached by the majority of the Bench that there
is no infringement of Art.
20(3) of
the Constitution by compelling an accused person to give his specimen
handwriting or signature; or impressions of his fingers, palm or foot to the
investigating officer or under orders of a court for the purpose of comparison
under the provisions of s. 73 of the Indian Evidence Act;
though we have not been able to 152 agree with the view of our learned brethren
that `to be a witness' in Art. 20(3) should be equated with the imparting of
personal knowledge or that an accused does not become a witness when he
produces some document not in his own handwriting even though it may tend to
prove facts in issue or relevant facts against him."
136.
Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling
precedent, it will be useful to re- state the two main premises for
understanding the scope of `testimonial compulsion'. The first is that
ordinarily it is the oral or written statements which convey the personal
knowledge of a person in respect of relevant facts that amount to `personal
testimony' thereby coming within the prohibition contemplated by Article 20(3).
In most cases, such `personal testimony' can be readily distinguished from
material evidence such as bodily substances and other physical objects. The
second premise is that in some cases, oral or written statements can be relied
upon but only for the purpose of identification or comparison with facts and
materials that are already in the possession of the investigators. The bar of
Article 20(3) can be invoked when the statements are likely to lead to
incrimination by themselves or `furnish a link in the 153 chain of evidence'
needed to do so. We must emphasize that a situation where a testimonial
response is used for comparison with facts already known to investigators is
inherently different from a situation where a testimonial response helps the
investigators to subsequently discover fresh facts or materials that could be
relevant to the ongoing investigation.
137. The
recognition of the distinction between testimonial acts and physical evidence
for the purpose of invoking Article 20(3) of the Constitution finds a close parallel
in some foreign decisions. In Armando Schmerber v. California, 384 US 757
(1966), the U.S. Supreme Court had to determine whether an involuntary blood
test of a defendant had violated the Fifth Amendment. The defendant was
undergoing treatment at a hospital following an automobile accident. A blood
sample was taken against his will at the direction of a police officer.
Analysis
of the same revealed that Schmerber had been intoxicated and these results were
admitted into evidence, thereby leading to his conviction for drunk driving. An
objection was raised on the basis of the Fifth Amendment and 154 the majority
opinion (Brennan, J.) relied on a distinction between evidence of a
`testimonial' or `communicative' nature as opposed to evidence of a `physical'
or `real nature', concluding that the privilege against self-incrimination
applied to the former but not to the latter. In arriving at this decision,
reference was made to several precedents with a prominent one being United
States v. Holt, 218 US 245 (1910). In that case, a defendant was forced to try
on an article of clothing during the course of investigation. It had been ruled
that the privilege against self-incrimination prohibited the use of compulsion
to `extort communications' from the defendant, but not the use of the
defendant's body as evidence.
138. In
addition to citing John Wigmore's position that `the privilege is limited to
testimonial disclosures' the Court in Schmerber also took note of other
examples where it had been held that the privilege did not apply to physical
evidence, which included `compulsion to submit to fingerprinting,
photographing, or measurements, to write or speak for identification, to appear
in court, to stand, to assume a 155 stance, to walk, or to make a particular
gesture.' However, it was cautioned that the privilege applied to testimonial
communications, irrespective of what form they might take.
Hence it
was recognised that the privilege not only extended to verbal communications,
but also to written words as well as gestures intended to communicate [for,
e.g., pointing or nodding]. This line of thinking becomes clear because the
majority opinion indicated that the distinction between testimonial and
physical acts may not be readily applicable in the case of Lie-Detector tests.
Brennan, J. had noted, 384 US 757 (1966), at p. 764:
"Although
we agree that this distinction is a helpful framework for analysis, we are not
to be understood to agree with past applications in all instances. There will
be many cases in which such a distinction is not readily drawn. Some tests
seemingly directed to obtain `physical evidence,' for example, lie detector
tests measuring changes in body function during interrogation, may actually be
directed to eliciting responses which are essentially testimonial. To compel a
person to submit to testing in which an effort will be made to determine his
guilt or innocence on the basis of physiological responses, whether willed or
not, is to evoke the spirit and history of the Fifth Amendment. Such situations
call to mind the principle that the protection of the privilege `is as broad as
the mischief against which it seeks to guard.' [...]"
156 In a
recently published paper, Michael S. Pardo (2008) has made the following
observation in respect of this judgment [Cited from: Michael S. Pardo,
`Self-Incrimination and the Epistemology of Testimony', 30 Cardozo Law Review
1023- 1046 (December 2008) at pp. 1027-1028]:
"the
Court notes that even the physical-testimonial distinction may break down when physical
evidence is meant to compel `responses which are essentially testimonial' such
as a lie-detector test measuring physiological responses during
interrogation."
139.
Following the Schmerber decision (supra.), the distinction between physical and
testimonial evidence has been applied in several cases. However, some
complexities have also arisen in the application of the testimonial-physical
distinction to various fact-situations. While we do not need to discuss these
cases to decide the question before us, we must take note of the fact that the
application of the testimonial- physical distinction can be highly ambiguous in
relation to non-verbal forms of conduct which nevertheless convey relevant
information. Among other jurisdictions, the European Court of Human Rights
(ECtHR) has also taken note of the distinction between testimonial and physical
acts for the 157 purpose of invoking the privilege against self-incrimination.
In Saunders v. United Kingdom, (1997) 23 EHRR 313, it was explained:
"...
The right not to incriminate oneself, in particular, presupposes that the
prosecution in a criminal case seek to prove their case against the accused
without resort to evidence obtained through methods of coercion or oppression
in defiance of the will of the accused. In this sense the right is closely
linked to the presumption of innocence ... The right not to incriminate oneself
is primarily concerned, however, with respecting the will of an accused person
to remain silent. As commonly understood in the legal systems of the
Contracting Parties to the Convention and elsewhere, it does not extend to the
use in criminal proceedings of material which may be obtained from the accused
through the use of compulsory powers but which has an existence independent of
the will of the suspect such as, inter alia, documents acquired pursuant to a
warrant, breath, blood and urine samples and bodily tissue for the purpose of
DNA testing."
Evolution
of the law on `medical examination' 140. With respect to the
testimonial-physical distinction, an important statutory development in our
legal system was the introduction of provisions for medical examination with
the overhauling of the Code of Criminal Procedure in 1973.
Sections
53 and 54 of the CrPC contemplate the medical examination of a person who has
been arrested, either at the 158 instance of the investigating officer or even
the arrested person himself. The same can also be done at the direction of the
jurisdictional court.
141.
However, there were no provisions for authorising such a medical examination in
the erstwhile Code of Criminal Procedure, 1898. The absence of a statutory
basis for the same had led courts to hold that a medical examination could not
be conducted without the prior consent of the person who was to be subjected to
the same. For example in Bhondar v. Emperor, AIR 1931 Cal 601, Lord Williams,
J. held, at p. 602:
"If
it were permitted forcibly to take hold of a prisoner and examine his body
medically for the purpose of qualifying some medical witness to give medical
evidence in the case against the accused there is no knowing where such
procedure would stop.
...Any
such examination without the consent of the accused would amount to an assault
and I am quite satisfied that the police are not entitled without statutory
authority to commit assaults upon prisoners for the purpose of procuring
evidence against them. If the legislature desires that evidence of this kind should
be given, it will be quite simple to add a short section to the Code of
Criminal Procedure expressly giving power to order such a medical
examination."
159 S.K.
Ghose, J. concurred, at p. 604:
"Nevertheless
the examination of an arrested person in hospital by a doctor, not for the
benefit of the prisoner's health, but simply by way of a second search, is not
provided for by Code, and is such a case the doctor may not examine the
prisoner without his consent. It would be a rule of caution to have such
consent noted in the medical report, so that the doctor would be in a position
to testify to such consent if called upon to do so."
A similar
conclusion was arrived at by Tarkunde, J. in Deomam Shamji Patel v. State of
Maharashtra, AIR 1959 Bom 284, who held that a person suspected or accused of
having committed an offence cannot be forcibly subjected to a medical
examination. It was also held that if police officers use force for this
purpose, then a person can lawfully exercise the right of private defence to
offer resistance.
142. It
was the 37th and 41st Reports of the Law Commission of India which recommended
the insertion of a provision in the Code of Criminal Procedure to enable
medical examination without the consent of an accused. These recommendations
proved to be the precursor for the inclusion of Sections 53 and 54 in the Code
of Criminal Procedure, 1973. It was observed in the 37th Report (December
1967), at pp. 205-206:
"
... It will suffice to refer to the decision of the Supreme Court in Kathi
Kalu, [AIR 1961 SC 1808] which has the 160 effect of confining the privilege
under Article 20(3) to testimony - written or oral. [Fn ...] The Supreme
Court's judgment in Kathi Kalu should be taken as overruling the view taken in
some earlier decisions, [Fn 6, 7 ...] invalidating provisions similar to
Section 5, Identification of Prisoners Act, 1920.
The
position in the U.S.A. has been summarised [Fn 8 - Emerson G., `Due Process and
the American Criminal Trial', 33 Australian Law Journal 223, 231 (1964)] `Less
certain is the protection accorded to the defendant with regard to
non-testimonial physical evidence other than personal papers. Can the accused
be forced to supply a sample of his blood or urine if the resultant tests are
likely to further the prosecution's case? Can he be forced to give his finger
prints to wear a disguise or certain clothing, to supply a pair of shoes which
might match footprints at the scene of the crime, to stand in a line-up, to
submit to a hair cut or to having his hair dyed, or to have his stomach pumped
or a fluoroscopic examination of the contents of his intestines? The literature
on this aspect of self- incrimination is voluminous. [Fn ...] The short and
reasonably accurate answer to the question posed is that almost all such
physical acts can be required. [Fn ...] Influenced by the historical
development of the doctrine, its purpose, and the need to balance the
conflicting interests of the individual and society, the courts have generally
restricted the protection of the Fifth Amendment to situations where the
defendant would be required to convey ideas, or where the physical acts would
offend the decencies of civilized conduct."
(some
internal citations omitted) 161 Taking note of Kathi Kalu Oghad (supra.) and
the distinction drawn between testimonial and physical acts in American cases,
the Law Commission observed that a provision for examination of the body would
reveal valuable evidence. This view was taken forward in the 41st Report which
recommended the inclusion of a specific provision to enable medical examination
during the course of investigation, irrespective of the subject's consent.
[See: 41st Report of the Law Commission of India, Vol. I (September 1969), Para
5.1 at p. 37] 143. We were also alerted to some High Court decisions which have
relied on Kathi Kalu Oghad (supra.) to approve the taking of physical evidence
such as blood and hair samples in the course of investigation. Following the
overhaul of the Code of Criminal Procedure in 1973, the position became amply
clear. In recent years, the judicial power to order a medical examination,
albeit in a different context, has been discussed by this Court in Sharda v.
Dharampal, (2003) 4 SCC 493. In that case, the contention related to the
validity of a civil court's direction for conducting a medical examination to
162 ascertain the mental state of a party in a divorce proceeding.
Needless
to say, the mental state of a party was a relevant issue before the trial
court, since insanity is a statutory ground for obtaining divorce under the
Hindu Marriage Act, 1955. S.B. Sinha, J. held that Article 20(3) was anyway not
applicable in a civil proceeding and that the civil court could direct the
medical examination in exercise of its inherent powers under Section 151 of the
Code of Civil Procedure, since there was no ordinary statutory basis for the
same. It was observed, Id. at p. 508:
"Yet
again the primary duty of a court is to see that truth is arrived at. A party
to a civil litigation, it is axiomatic, is not entitled to constitutional
protections under Article 20 of the Constitution of India. Thus, the civil
court although may not have any specific provisions in the Code of Civil
Procedure and the Evidence Act, has an inherent power in terms of Section 151
of the Code of Civil Procedure to pass all orders for doing complete justice to
the parties to the suit.
Discretionary
power under Section 151 of the Code of Civil Procedure, it is trite, can be
exercised also on an application filed by the party. In certain cases medical
examination by the experts in the field may not only be found to be leading to
the truth of the matter but may also lead to removal of misunderstanding
between the parties. It may bring the parties to terms. Having regard to
development in medicinal technology, it is possible to find out that what was
presumed to be a mental disorder 163 of a spouse is not really so. In
matrimonial disputes, the court also has a conciliatory role to play - even for
the said purpose it may require expert advice.
Under
Section 75(e) of the Code of Civil Procedure and Order 26, Rule 10-A the civil
court has the requisite power to issue a direction to hold a scientific,
technical or expert investigation."
144. The
decision had also cited some foreign precedents dealing with the authority of
investigators and courts to require the collection of DNA samples for the
purpose of comparison. In that case the discussion centered on the `right to
privacy'. So far, the authority of investigators and courts to compel the production
of DNA samples has been approved by the Orissa High Court in Thogorani v. State
of Orissa, 2004 Cri L J 4003 (Ori).
145. At
this juncture, it should be noted that the Explanation to Sections 53, 53-A and
54 of the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the
scope of medical examination, especially with regard to the extraction of
bodily substances. The amended provision reads:
53.
Examination of accused by medical practitioner at the request of police
officer. - (1) When a person is arrested on a charge of committing an offence
of such a nature and alleged to have been committed under such circumstances
that there are reasonable grounds for believing that an examination of his
person will afford evidence as to the commission of an offence, it shall be
lawful for a registered medical practitioner, acting at the request of a police
officer not below the rank of sub-inspector, and for any person acting in good
faith in his aid and under his direction, to make such an examination of the
person arrested as is reasonably necessary in order to ascertain the facts
which may afford such evidence, and to use such force as is reasonably
necessary for that purpose.
(2)
Whenever the person of a female is to be examined under this section, the
examination shall be made only by, or under the supervision of, a female
registered medical practitioner.
Explanation.
- In this section and in sections 53-A and 54, - (a) `examination' shall
include the examination of blood, blood-stains, semen, swabs in case of sexual
offences, sputum and sweat, hair samples and finger nail clippings by the use
of modern and scientific techniques including DNA profiling and such other
tests which the registered medical practitioner thinks necessary in a particular
case;
(b)`registered
medical practitioner' means a medical practitioner who possesses any medical
qualification as defined in clause (h) of Section 2 of the Indian Medical
Council Act , 1956 (102 of 1956) and whose name has been entered in a State
Medical Register.
(emphasis
supplied) 165 146. The respondents have urged that the impugned techniques
should be read into the relevant provisions - i.e. Sections 53 and 54 of CrPC.
As described earlier, a medical examination of an arrested person can be directed
during the course of an investigation, either at the instance of the
investigating officer or the arrested person. It has also been clarified that
it is within the powers of a court to direct such a medical examination on its
own. Such an examination can also be directed in respect of a person who has
been released from custody on bail as well as a person who has been granted
anticipatory bail. Furthermore, Section 53 contemplates the use of `force as is
reasonably necessary' for conducting a medical examination. This means that
once a court has directed the medical examination of a particular person, it is
within the powers of the investigators and the examiners to resort to a
reasonable degree of physical force for conducting the same.
147. The
contentious provision is the Explanation to Sections 53, 53-A and 54 of the
CrPC (amended in 2005) which has 166 been reproduced above. It has been
contended that the phrase `modern and scientific techniques including DNA
profiling and such other tests' should be liberally construed to include the
impugned techniques. It was argued that even though the narcoanalysis
technique, polygraph examination and the BEAP test have not been expressly
enumerated, they could be read in by examining the legislative intent. Emphasis
was placed on the phrase `and such other tests' to argue that the Parliament
had chosen an approach where the list of `modern and scientific techniques'
contemplated was illustrative and not exhaustive. It was also argued that in
any case, statutory provisions can be liberally construed in light of
scientific advancements. With the development of newer technologies, their use
can be governed by older statutes which had been framed to regulate the older
technologies used for similar purposes.
148. On
the other hand, the counsel for the appellants have contended that the
Parliament was well aware of the impugned techniques at the time of the 2005
amendment and 167 consciously chose not to include them in the amended
Explanation to Sections 53, 53-A and 54 of the CrPC. It was reasoned that this
choice recognised the distinction between testimonial acts and physical
evidence. While bodily substances such as blood, semen, sputum, sweat, hair and
fingernail clippings can be readily characterised as physical evidence, the
same cannot be said for the techniques in question. This argument was supported
by invoking the rule of `ejusdem generis' which is used in the interpretation
of statutes. This rule entails that the meaning of general words which follow
specific words in a statutory provision should be construed in light of the
commonality between those specific words. In the present case, the substances
enumerated are all examples of physical evidence. Hence the words `and such
other tests' which appear in the Explanation to Sections 53, 53-A and 54 of the
CrPC should be construed to include the examination of physical evidence but
not that of testimonial acts.
168 149.
We are inclined towards the view that the results of the impugned tests should
be treated as testimonial acts for the purpose of invoking the right against
self-incrimination.
Therefore,
it would be prudent to state that the phrase `and such other tests' [which
appears in the Explanation to Sections 53, 53-A and 54 of the CrPC] should be
read so as to confine its meaning to include only those tests which involve the
examination of physical evidence. In pursuance of this line of reasoning, we
agree with the appellant's contention about the applicability of the rule of
`ejusdem generis'. It should also be noted that the Explanation to Sections 53,
53-A and 54 of the CrPC does not enumerate certain other forms of medical
examination that involve testimonial acts, such as psychiatric examination
among others. This demonstrates that the amendment to this provision was
informed by a rational distinction between the examination of physical
substances and testimonial acts.
150.
However, the submissions touching on the legislative intent require some
reflection. While it is most likely that the 169 Parliament was well aware of
the impugned techniques at the time of the 2005 amendment to the CrPC and
deliberately chose not to enumerate them, we cannot arrive at a conclusive
finding on this issue. While it is open to courts to examine the legislative
history of a statutory provision, it is not proper for us to try and
conclusively ascertain the legislative intent. Such an inquiry is impractical
since we do not have access to all the materials which would have been
considered by the Parliament. In such a scenario, we must address the
respondent's arguments about the interpretation of statutes with regard to
scientific advancements. To address this aspect, we can refer to some extracts
from a leading commentary on the interpretation of statutes [See: Justice G.P.
Singh, Principles of Statutory Interpretation, 10th edn. (New Delhi:
Wadhwa
& Co. Nagpur, 2006) at pp. 239-247]. The learned author has noted, at pp.
240-241:
"Reference
to the circumstances existing at the time of the passing of the statute does
not, therefore, mean that the language used, at any rate, in a modern statute,
should be held to be inapplicable to social, political and economic
developments or to scientific inventions not known at the time of the passing
of the statute. ... The question again is as to what was the intention of the
law 170 makers: Did they intend as originalists may argue, that the words of
the statute be given the meaning they would have received immediately after the
statute's enactment or did they intend as dynamists may contend that it would
be proper for the court to adopt the current meaning of the words? The courts
have now generally leaned in favour of dynamic construction. [...] But the
doctrine has also its limitations. For example it does not mean that the
language of an old statute can be construed to embrace something conceptually
different.
The
guidance on the question as to when an old statute can apply to new state of
affairs not in contemplation when the statute was enacted was furnished by Lord
Wilberforce in his dissenting speech in Royal College of Nursing of the U.K. v.
Dept. of Health and Social Security, (1981) 1 All ER 545, which is now treated
as authoritative. (...) Lord Wilberforce said, at pp. 564-565:
In
interpreting an Act of Parliament it is proper, and indeed necessary, to have
regard to the state of affairs existing, and known by Parliament to be
existing, at the time. It is a fair presumption that Parliament's policy or
intention is directed to that state of affairs. Leaving aside cases of omission
by inadvertence, this being not such a case when a new state of affairs, or a
fresh set of facts bearing on policy, comes into existence, the courts have to
consider whether they fall within the parliamentary intention. They may be held
to do so, if they fall within the same genus of facts as those to which the
expressed policy has been formulated. They may also be held to do so if there
can be detected a clear purpose in the legislation which can only be fulfilled
if the extension is made. How liberally these principles may be applied must
depend on the nature of the enactment, and the strictness or otherwise of the
words in which it has been expressed. The courts should be less willing to
extend expressed meanings if it is clear that the Act 171 in question was
designed to be restrictive or circumscribed in its operation rather than
liberal or permissive. They will be much less willing to do so where the new
subject matter is different in kind or dimension from that for which the legislation
was passed. In any event there is one course which the courts cannot take under
the law of this country:
they
cannot fill gaps; they cannot by asking the question, `What would Parliament
have done in this current case, not being one in contemplation, if the facts
had been before it?' attempt themselves to supply the answer, if the answer is
not to be found in the terms of the Act itself."
(internal
citations omitted) 151. The learned author has further taken note of several
decisions where general words appearing in statutory provisions have been
liberally interpreted to include newer scientific inventions and technologies.
[Id. at pp. 244-246] The relevant portion of the commentary quotes Subbarao, J.
in Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159, at p.
163:
"It
is perhaps difficult to attribute to a legislative body functioning in a static
society that its intention was couched in terms of considerable breadth so as
to take within its sweep the future developments comprehended by the
phraseology used. It is more reasonable to confine its intention only to the
circumstances obtaining at the time the law was made. But in modern progressive
society it would be unreasonable to confine the intention of a Legislature to
the meaning attributable to the word 172 used at the time the law was made, for
a modern Legislature making laws to govern society which is fast moving must be
presumed to be aware of an enlarged meaning the same concept might attract with
the march of time and with the revolutionary changes brought about in social,
economic, political and scientific and other fields of human activity. Indeed,
unless a contrary intention appears, an interpretation should be given to the
words used to take in new facts and situations, if the words are capable of
comprehending them."
152. In
light of this discussion, there are some clear obstructions to the dynamic
interpretation of the amended Explanation to Sections 53, 53-A and 54 of the
CrPC. Firstly, the general words in question, i.e. `and such other tests'
should ordinarily be read to include tests which are in the same genus as the
other forms of medical examination that have been specified. Since all the
explicit references are to the examination of bodily substances, we cannot readily
construe the said phrase to include the impugned tests because the latter seem
to involve testimonial responses. Secondly, the compulsory administration of
the impugned techniques is not the only means for ensuring an expeditious
investigation.
Furthermore,
there is also a safe presumption that Parliament was well aware of the
existence of the impugned techniques 173 but deliberately chose not to
enumerate them. Hence, on an aggregate understanding of the materials produced
before us we lean towards the view that the impugned tests, i.e. the
narcoanalysis technique, polygraph examination and the BEAP test should not be
read into the provisions for `medical examination' under the Code of Criminal
Procedure, 1973.
153.
However, it must be borne in mind that even though the impugned techniques have
not been expressly enumerated in the CrPC, there is no statutory prohibition
against them either. It is a clear case of silence in the law. Furthermore, in
circumstances where an individual consents to undergo these tests, there is no
dilution of Article 20(3). In the past, the meaning and scope of the term
`investigation' has been held to include measures that had not been enumerated
in statutory provisions. For example, prior to the enactment of an express provision
for medical examination in the CrPC, it was observed in Mahipal Maderna v.
State of Maharashtra, 1971 Cri L J 1405 (Bom), that an order requiring the
production of a hair sample comes within the ordinary understanding of 174
`investigation' (at pp. 1409-1410, Para. 17). We must also take note of the
decision in Jamshed v. State of Uttar Pradesh, 1976 Cri L J 1680 (All), wherein
it was held that a blood sample can be compulsorily extracted during a `medical
examination' conducted under Section 53 of the CrPC. At that time, the
collection of blood samples was not expressly contemplated in the said
provision. Nevertheless, the Court had ruled that the phrase `examination of a
person' should be read liberally so as to include an examination of what is externally
visible on a body as well as the examination of an organ inside the body. [See
p. 1689, Para 13] 154. We must also refer back to the substance of the decision
in Sharda v. Dharampal, (supra.) which upheld the authority of a civil court to
order a medical examination in exercise of the inherent powers vested in it by
Section 151 of the Code of Civil Procedure, 1908. The same reasoning cannot be
readily applied in the criminal context. Despite the absence of a statutory
basis, it is tenable to hold that criminal courts should be allowed to direct
the impugned tests with the 175 subject's consent, keeping in mind that there
is no statutory prohibition against them either.
155.
Another pertinent contention raised by the appellants is that the involvement
of medical personnel in the compulsory administration of the impugned tests is
violative of their professional ethics. In particular, criticism was directed
against the involvement of doctors in the narcoanalysis technique and it was
urged that since the content of the drug- induced revelations were shared with
investigators, this technique breaches the duty of confidentiality which should
be ordinarily maintained by medical practitioners. [See generally:
Amar
Jesani, `Willing participants and tolerant profession:
Medical
ethics and human rights in narco-analysis', Indian Journal of Medical Ethics,
Vol. 16(3), July-Sept. 2008] The counsel have also cited the text of the
`Principles of Medical Ethics' adopted by the United Nations General Assembly
[GA Res. 37/194, 111th Plenary Meeting] on December 18, 1982.
This
document enumerates some `Principles of Medical Ethics relevant to the role of
health personnel, particularly physicians, 176 in the protection of prisoners
and detainees against torture, and other cruel, inhuman or degrading treatment
of punishment'.
Emphasis
was placed on Principle 4 which reads:
Principle
4 It is a contravention of medical ethics for health personnel, particularly
physicians:
To apply
their knowledge and skills in order to assist in the interrogation of prisoners
and detainees in a manner that may adversely affect the physical or mental
health or condition of such prisoners or detainees and which is not in
accordance with the relevant international instruments;
156.
Being a court of law, we do not have the expertise to mould the specifics of
professional ethics for the medical profession. Furthermore, the involvement of
doctors in the course of investigation in criminal cases has long been
recognised as an exception to the physician-patient privilege.
In the
Indian context, the statutory provisions for directing a medical examination
are an example of the same. Fields such as forensic toxicology have become
important in criminal- justice systems all over the world and doctors are
frequently called on to examine bodily substances such as samples of blood,
hair, semen, saliva, sweat, sputum and fingernail 177 clippings as well as
marks, wounds and other physical characteristics. A reasonable limitation on
the forensic uses of medical expertise is the fact that testimonial acts such
as the results of a psychiatric examination cannot be used as evidence without
the subject's informed consent.
Results
of impugned tests should be treated as `personal testimony' 157. We now return
to the operative question of whether the results obtained through polygraph
examination and the BEAP test should be treated as testimonial responses.
Ordinarily evidence is classified into three broad categories, namely oral
testimony, documents and material evidence. The protective scope of Article
20(3) read with Section 161(2), CrPC guards against the compulsory extraction
of oral testimony, even at the stage of investigation. With respect to the
production of documents, the applicability of Article 20(3) is decided by the
trial judge but parties are obliged to produce documents in the first place.
However, the compulsory extraction of material (or 178 physical) evidence lies
outside the protective scope of Article 20(3). Furthermore, even testimony in oral
or written form can be required under compulsion if it is to be used for the
purpose of identification or comparison with materials and information that is
already in the possession of investigators.
158. We
have already stated that the narcoanalysis test includes substantial reliance
on verbal statements by the test subject and hence its involuntary
administration offends the `right against self-incrimination'. The crucial test
laid down in Kathi Kalu Oghad, (supra.) is that of `imparting knowledge in respect
of relevant fact by means of oral statements or statements in writing, by a
person who has personal knowledge of the facts to be communicated to a court or
to a person holding an enquiry or investigation' [Id. at p. 30]. The difficulty
arises since the majority opinion in that case appears to confine the
understanding of `personal testimony' to the conveyance of personal knowledge
through oral statements or statements in writing. The results obtained from
polygraph examination or a BEAP test are not in the nature of oral or 179
written statements. Instead, inferences are drawn from the measurement of
physiological responses recorded during the performance of these tests. It
could also be argued that tests such as polygraph examination and the BEAP test
do not involve a `positive volitional act' on part of the test subject and
hence their results should not be treated as testimony.
However,
this does not entail that the results of these two tests should be likened to
physical evidence and thereby excluded from the protective scope of Article
20(3). We must refer back to the substance of the decision in Kathi Kalu Oghad
(supra.) which equated a testimonial act with the imparting of knowledge by a
person who has personal knowledge of the facts that are in issue. It has been
recognised in other decisions that such personal knowledge about relevant facts
can also be communicated through means other than oral or written statements.
For example in M.P. Sharma's case (supra.), it was noted that "...evidence
can be furnished through the lips or by production of a thing or of a document
or in other modes" [Id. at p. 1087]. Furthermore, common sense dictates
that certain communicative gestures such as 180 pointing or nodding can also
convey personal knowledge about a relevant fact, without offering a verbal
response. It is quite foreseeable that such a communicative gesture may by
itself expose a person to `criminal charges or penalties' or furnish a link in
the chain of evidence needed for prosecution.
159. We
must also highlight that there is nothing to show that the learned judges in
Kathi Kalu Oghad (supra.) had contemplated the impugned techniques while
discussing the scope of the phrase `to be a witness' for the purpose of Article
20(3). At that time, the transmission of knowledge through means other than
speech or writing was not something that could have been easily conceived of.
Techniques such as polygraph examination were fairly obscure and were the
subject of experimentation in some Western nations while the BEAP technique was
developed several years later. Just as the interpretation of statutes has to be
often re-examined in light of scientific advancements, we should also be
willing to re- examine judicial observations with a progressive lens. An explicit
reference to the Lie-Detector tests was of course made 181 by the U.S. Supreme
Court in the Schmerber decision, 384 US 757 (1966), wherein Brennan, J. had
observed, at p. 764:
"To
compel a person to submit to testing in which an effort will be made to
determine his guilt or innocence on the basis of physiological responses,
whether willed or not, is to evoke the spirit and history of the Fifth
Amendment."
160. Even
though the actual process of undergoing a polygraph examination or a BEAP test
is not the same as that of making an oral or written statement, the
consequences are similar. By making inferences from the results of these tests,
the examiner is able to derive knowledge from the subject's mind which
otherwise would not have become available to the investigators. These two tests
are different from medical examination and the analysis of bodily substances
such as blood, semen and hair samples, since the test subject's physiological
responses are directly correlated to mental faculties. Through lie-detection or
gauging a subject's familiarity with the stimuli, personal knowledge is
conveyed in respect of a relevant fact. It is also significant that unlike the
case of documents, the investigators cannot possibly have any prior knowledge
of the test subject's thoughts and memories, 182 either in the actual or
constructive sense. Therefore, even if a highly-strained analogy were to be
made between the results obtained from the impugned tests and the production of
documents, the weight of precedents leans towards restrictions on the
extraction of `personal knowledge' through such means.
161.
During the administration of a polygraph test or a BEAP test, the subject makes
a mental effort which is accompanied by certain physiological responses. The
measurement of these responses then becomes the basis of the transmission of
knowledge to the investigators. This knowledge may aid an ongoing investigation
or lead to the discovery of fresh evidence which could then be used to
prosecute the test subject. In any case, the compulsory administration of the
impugned tests impedes the subject's right to choose between remaining silent
and offering substantive information. The requirement of a `positive volitional
act' becomes irrelevant since the subject is compelled to convey personal
knowledge irrespective of his/her own volition.
183 162.
Some academics have also argued that the results obtained from tests such as
polygraph examination are `testimonial' acts that should come within the
prohibition of the right against self-incrimination. For instance, Michael S. Pardo
(2008) has observed [Cited from: Michael S. Pardo, `Self- Incrimination and the
Epistemology of Testimony', 30 Cardozo Law Review 1023-1046 (December 2008) at
p. 1046]:
"The
results of polygraphs and other lie-detection tests, whether they call for a
voluntary response or not, are testimonial because the tests are just inductive
evidence of the defendant's epistemic state. They are evidence that purports to
tell us either: (1) that we can or cannot rely on the assertions made by the
defendant and for which he has represented himself to be an authority, or (2)
what propositions the defendant would assume authority for and would invite
reliance upon, were he to testify truthfully."
163.
Ronald J. Allen and M. Kristin Mace (2004) have offered a theory that the right
against self-incrimination is meant to protect an individual in a situation
where the State places reliance on the `substantive results of cognition'. The
following definition of `cognition' has been articulated to explain this
position [Cited from: Ronald J. Allen and M. Kristin Mace, `The 184
Self-Incrimination Clause explained and its future predicted', 94 Journal of Criminal
Law and Criminology 243-293 (2004), Fn. 16 at p. 247]:
"...
`Cognition' is used herein to refer to these intellectual processes that allow
one to gain and make use of substantive knowledge and to compare one's `inner
world' (previous knowledge) with the `outside world' (stimuli such as questions
from an interrogator). Excluded are simple psychological responses to stimuli
such as fear, warmness, and hunger: the mental processes that produce muscular
movements; and one's will or faculty for choice. ..."
(internal
citation omitted) 164. The above-mentioned authors have taken a hypothetical
example where the inferences drawn from an involuntary polygraph test that did
not require verbal answers, led to the discovery of incriminating evidence.
They have argued that if the scope of the Fifth Amendment extends to protecting
the subject in respect of `substantive results of cognition', then reliance on
polygraph test results would violate the said right.
A similar
conclusion has also been made by the National Human Rights Commission, as
evident from the following extract in the Guidelines Relating to Administration
of Polygraph Test [Lie Detector Test] on an Accused (2000):
185
"The extent and nature of the `self-incrimination' is wide enough to cover
the kinds of statements that were sought to be induced. In M.P. Sharma, AIR
1954 SC 300, the Supreme Court included within the protection of the self-
incrimination rule all positive volitional acts which furnish evidence. This by
itself would have made all or any interrogation impossible. The test - as
stated in Kathi Kalu Oghad (AIR 1961 SC 1808) - retains the requirement of
personal volition and states that `self- incrimination' must mean conveying
information based upon the personal knowledge of the person giving information.
By either test, the information sought to be elicited in a Lie Detector Test is
information in the personal knowledge of the accused."
165. In
light of the preceding discussion, we are of the view that the results obtained
from tests such as polygraph examination and the BEAP test should also be
treated as `personal testimony', since they are a means for `imparting personal
knowledge about relevant facts'. Hence, our conclusion is that the results
obtained through the involuntary administration of either of the impugned tests
(i.e.
the
narcoanalysis technique, polygraph examination and the BEAP test) come within
the scope of `testimonial compulsion', thereby attracting the protective shield
of Article 20(3).
186 II.
Whether the involuntary administration of the impugned techniques is a
reasonable restriction on `personal liberty' as understood in the context of
Article 21 of the Constitution? 166. The preceding discussion does not
conclusively address the contentions before us. Article 20(3) protects a person
who is `formally accused' of having committed an offence or even a suspect or a
witness who is questioned during an investigation in a criminal case. However,
Article 20(3) is not applicable when a person gives his/her informed consent to
undergo any of the impugned tests. It has also been described earlier that the
`right against self-incrimination' does not protect persons who may be
compelled to undergo the tests in the course of administrative proceedings or
any other proceedings which may result in civil liability. It is also
conceivable that a person who is forced to undergo these tests may not
subsequently face criminal charges. In this context, Article 20(3) will not
apply in situations where the test results could become the basis of non-penal
consequences for the subject such as 187 custodial abuse, police surveillance
and harassment among others.
167. In
order to account for these possibilities, we must examine whether the
involuntary administration of any of these tests is compatible with the
constitutional guarantee of `substantive due process'. The standard of
`substantive due process' is of course the threshold for examining the validity
of all categories of governmental action that tend to infringe upon the idea of
`personal liberty. We will proceed with this inquiry with regard to the various
dimensions of `personal liberty' as understood in the context of Article 21 of
the Constitution, which lays down that:
`No
person shall be deprived of his life and liberty except according to procedure
established by law'.
168.
Since administering the impugned tests entails the physical confinement of the
subject, it is important to consider whether they can be read into an existing
statutory provision.
This is
so because any form of restraint on personal liberty, howsoever slight it may
be, must have a basis in law. However, 188 we have already explained how it
would not be prudent to read the explanation to Sections 53, 53-A and 54 of the
CrPC in an expansive manner so as to include the impugned techniques.
The
second line of inquiry is whether the involuntary administration of these tests
offends certain rights that have been read into Article 21 by way of judicial
precedents. The contentions before us have touched on aspects such as the
`right to privacy' and the `right against cruel, inhuman and degrading
treatment'. The third line of inquiry is structured around the right to fair
trial which is an essential component of `personal liberty'.
169.
There are several ways in which the involuntary administration of either of the
impugned tests could be viewed as a restraint on `personal liberty'. The most
obvious indicator of restraint is the use of physical force to ensure that an
unwilling person is confined to the premises where the tests are to be
conducted. Furthermore, the drug-induced revelations or the substantive
inferences drawn from the measurement of the subject's physiological responses
can be 189 described as an intrusion into the subject's mental privacy. It is
also quite conceivable that a person could make an incriminating statement on
being threatened with the prospective administration of any of these
techniques.
Conversely,
a person who has been forcibly subjected to these techniques could be
confronted with the results in a subsequent interrogation, thereby eliciting
incriminating statements.
170. We
must also account for circumstances where a person who undergoes the said tests
is subsequently exposed to harmful consequences, though not of a penal nature.
We have already expressed our concern with situations where the contents of the
test results could prompt investigators to engage in custodial abuse,
surveillance or undue harassment.
We have
also been apprised of some instances where the investigation agencies have
leaked the video-recordings of narcoanalysis interviews to media organisations.
This is an especially worrisome practice since the public distribution of these
recordings can expose the subject to undue social 190 stigma and specific
risks. It may even encourage acts of vigilantism in addition to a `trial by
media'.
171. We
must remember that the law does provide for some restrictions on `personal
liberty' in the routine exercise of police powers. For instance, the CrPC
incorporates an elaborate scheme prescribing the powers of arrest, detention,
interrogation, search and seizure. A fundamental premise of the criminal
justice system is that the police and the judiciary are empowered to exercise a
reasonable degree of coercive powers. Hence, the provision that enables Courts
to order a person who is under arrest to undergo a medical examination also
provides for the use of `force as is reasonably necessary' for this purpose. It
is evident that the notion of `personal liberty' does not grant rights in the
absolute sense and the validity of restrictions placed on the same needs to be
evaluated on the basis of criterion such as `fairness, non- arbitrariness, and
reasonableness'.
191 172.
Both the appellants and the respondents have cited cases involving the
compelled extraction of blood samples in a variety of settings. An analogy has
been drawn between the pin-prick of a needle for extracting a blood sample and
the intravenous administration of drugs such as sodium pentothal. Even though
the extracted sample of blood is purely physical evidence as opposed to a
narcoanalysis interview where the test subject offers testimonial responses,
the comparison can be sustained to examine whether puncturing the skin with a
needle or an injection is an unreasonable restraint on `personal liberty'.
173. The
decision given by the U.S. Supreme Court in Rochin v. California, 342 US 165
(1952), recognised the threshold of `conduct that shocks the conscience' for
deciding when the extraction of physical evidence offends the guarantee of `due
process of law'. With regard to the facts in that case, Felix Frankfurter, J.
had decided that the extraction of evidence had indeed violated the same, Id.
at pp. 172-173:
192
" ... we are compelled to conclude that the proceedings by which this
conviction was obtained do more than offend some fastidious squeamishness or
private sentimentalism about combating crime too energetically.
This is
conduct that shocks the conscience. Illegally breaking into the privacy of the
petitioner, the struggle to open his mouth and remove what was there, the
forcible extraction of his stomach's contents - this course of proceeding by
agents of government to obtain evidence is bound to offend even hardened
sensibilities. They are methods too close to the rack and the screw to permit
of constitutional differentiation.
... Use
of involuntary verbal confessions in State criminal trials is constitutionally
obnoxious not only because of their unreliability. They are inadmissible under
the Due Process Clause even though statements contained in them may be
independently established as true. Coerced confessions offend the community's
sense of fair play and decency. So here, to sanction the brutal conduct which
naturally enough was condemned by the court whose judgment is before us, would
be to afford brutality the cloak of law. Nothing would be more calculated to
discredit law and thereby to brutalize the temper of a society."
174.
Coming to the cases cited before us, in State of Maharashtra v. Sheshappa
Dudhappa Tambade, AIR 1964 Bom 253, the Bombay High Court had upheld the constitutionality
of Section 129-A of the Bombay Prohibition Act, 1949. This provision empowered
prohibition officers and police personnel to produce a person for `medical 193
examination', which could include the collection of a blood sample. The said provision
authorised the use of `all means reasonably necessary to secure the production
of such person or the examination of his body or the collection of blood
necessary for the test'. Evidently, the intent behind this provision was to
enforce the policy of prohibition on the consumption of intoxicating liquors.
Among other questions, the Court also ruled that this provision did not violate
Article
21.
Reliance was placed on a decision of the U.S. Supreme Court in Paul H.
Breithaupt v. Morris Abram, 352 US 432 (1957), wherein the contentious issue
was whether a conviction on the basis of an involuntary blood-test violated the
guarantee of `due process of law'. In deciding that the involuntary extraction
of the blood sample did not violate the guarantee of `Due Process of Law',
Clark, J. observed, at pp.
435-437:
"
... there is nothing `brutal' or `offensive' in the taking of a blood sample
when done as in this case, under the protective eye of a physician. To be sure,
the driver here was unconscious when the blood was taken, but the absence of
conscious consent, without more, does not necessarily render the taking a
violation of a constitutional right and certainly the test administered 194
here would not be considered offensive by even the most delicate. Furthermore,
due process is not measured by the yardstick of personal reaction or the
sphygmogram of the most sensitive person, but by that whole community sense of
`decency and fairness' that has been woven by common experience into the fabric
of acceptable conduct.
It is on
this bedrock that this Court has established the concept of due process. The
blood test procedure has become routine in our everyday life. It is a ritual
for those going into the military service as well as those applying for
marriage licenses. Many colleges require such tests before permitting entrance
and literally millions of us have voluntarily gone through the same, though a
longer, routine in becoming blood donors. Likewise, we note that a majority of
our States have either enacted statutes in some form authorizing tests of this
nature or permit findings so obtained to be admitted in evidence. We therefore
conclude that a blood test taken by a skilled technician is not such `conduct
that shocks the conscience' [Rochin v. California, 342 US 165, 172 (1952)], nor
such a method of obtaining evidence that it offends a `sense of justice' [Brown
v. Mississippi, 297 US 278, 285 (1936)]..."
175. In
Jamshed v. State of Uttar Pradesh, 1976 Cri L J 1680 (All), the following
observations were made in respect of a compulsory extraction of blood samples
during a medical examination (in Para 12):
"We
are therefore of the view that there is nothing repulsive or shocking to the
conscience in taking the blood of the appellant in the instant case in order to
establish his guilt. So far as the question of causing hurt is concerned, even
causing of some pain may technically amount to hurt as defined by Section 319
of the Indian 195 Penal Code. But pain might be caused even if the accused is
subjected to a forcible medical examination.
For
example, in cases of rape it may be necessary to examine the private parts of
the culprit. If a culprit is suspected to have swallowed some stolen article,
an emetic may be used and X-ray examination may also be necessary. For such
purposes the law permits the use of necessary force. It cannot, therefore, be
said that merely because some pain is caused, such a procedure should not be
permitted."
A similar
view was taken in Ananth Kumar Naik v. State of Andhra Pradesh, 1977 Cri L J
1797 (A.P.), where it was held (in Para. 20):
"
... In fact S. 53 provides that while making such an examination such force as
is reasonably necessary for that purpose may be used. Therefore, whatever
discomfort that may be caused when samples of blood and semen are taken from an
arrested person, it is justified by the provisions of Sections 53 and 54,
CrPC."
We can
also refer to the following observations in Anil Anantrao Lokhande v. State of
Maharashtra, 1981 Cri L J 125 (Bom), (in Para. 30):
"
... Once it is held that Section 53 of the Code of Criminal Procedure does
confer a right upon the investigating machinery to get the arrested persons
medically examined by the medical practitioner and the expression used in
Section 53 includes in its import the taking of sample of the blood for
analysis, then obviously the said provision is not violative of the guarantee
incorporated in Article 21 of the Constitution of India."
196 176.
This line of precedents shows that the compelled extraction of blood samples in
the course of a medical examination does not amount to `conduct that shocks the
conscience'. There is also an endorsement of the view that the use of `force as
may be reasonably necessary' is mandated by law and hence it meets the threshold
of `procedure established by law'. In this light, we must restate two crucial
considerations that are relevant for the case before us. Firstly, the
restrictions placed on `personal liberty' in the course of administering the
impugned techniques are not limited to physical confinement and the extraction
of bodily substances.
All the
three techniques in question also involve testimonial responses. Secondly, most
of the above-mentioned cases were decided in accordance with the threshold of
`procedure established by law' for restraining `personal liberty'. However, in
this case we must use a broader standard of reasonableness to evaluate the
validity of the techniques in question. This wider inquiry calls for deciding
whether they are compatible with the various judicially-recognised 197
dimensions of `personal liberty' such as the right to privacy, the right
against cruel, inhuman or degrading treatment and the right to fair trial.
Applicability
of the `right to privacy' 177. In Sharda v. Dharampal, (supra.) this Court had
upheld the power of a civil court to order the medical examination of a party
to a divorce proceeding. In that case, the medical examination was considered
necessary for ascertaining the mental condition of one of the parties and it
was held that a civil court could direct the same in the exercise of its
inherent powers, despite the absence of an enabling provision. In arriving at
this decision it was also considered whether subjecting a person to a medical
examination would violate Article 21. We must highlight the fact that a medical
test for ascertaining the mental condition of a person is most likely to be in
the nature of a psychiatric evaluation which usually includes testimonial
responses. Accordingly, a significant part of that judgment dealt with the
`right to privacy'. It would be 198 appropriate to structure the present
discussion around extracts from that opinion.
178. In
M.P. Sharma (supra.), it had been noted that the Indian Constitution did not
explicitly include a `right to privacy' in a manner akin to the Fourth
Amendment of the U.S. Constitution. In that case, this distinction was one of
the reasons for upholding the validity of search warrants issued for documents
required to investigate charges of misappropriation and embezzlement. Similar
issues were discussed in Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC
1295, where the Court considered the validity of police-regulations that
authorised police personnel to maintain lists of `history-sheeters' in addition
to conducting surveillance activities, domiciliary visits and periodic
inquiries about such persons. The intention was to monitor persons suspected or
charged with offences in the past, with the aim of preventing criminal acts in
the future. At the time, there was no statutory basis for these regulations and
they had been framed in the exercise of administrative functions. The majority
opinion 199 (Ayyangar, J.) held that these regulations did not violate
`personal liberty', except for those which permitted domiciliary visits. The
other restraints such as surveillance activities and periodic inquiries about
`history-sheeters' were justified by observing, at Para. 20:
"...
the right of privacy is not a guaranteed right under our Constitution and
therefore the attempt to ascertain the movements of an individual which is
merely a manner in which privacy is invaded is not an infringement of a
fundamental right guaranteed by Part III."
179.
Ayyangar, J. distinguished between surveillance activities conducted in the
routine exercise of police powers and the specific act of unauthorised
intrusion into a person's home which violated `personal liberty'. However, the
minority opinion (Subba Rao, J.) in Kharak Singh took a different approach by
recognising the interrelationship between Article 21 and 19, thereby requiring
the State to demonstrate the `reasonableness' of placing such restrictions on
`personal liberty' [This approach was later endorsed by Bhagwati, J. in Maneka
Gandhi v. Union of India, AIR 1978 SC 597, see p.
622].
Subba Rao, J. held that the right to privacy `is an 200 essential ingredient of
personal liberty' and that the right to `personal liberty is `a right of an
individual to be free from restrictions or encroachments on his person, whether
those restrictions or encroachments are directly imposed or indirectly brought
about by calculated measures.' [AIR 1963 SC 1295, at p. 1306] 180. In Gobind v.
State of Madhya Pradesh, (1975) 2 SCC 148, the Supreme Court approved of some
police-regulations that provided for surveillance activities, but this time the
decision pointed out a clear statutory basis for these regulations. However, it
was also ruled that the `right to privacy' was not an absolute right. It was
held, at Para. 28:
"The
right to privacy in any event will necessarily have to go through a process of
case-by-case development.
Therefore,
even assuming that the right to personal liberty, the right to move freely
throughout the territory of India and the freedom of speech create an
independent right of privacy as an emanation from them which one can
characterize as a fundamental right, we do not think that the right is
absolute."
...
Assuming that the fundamental right explicitly guaranteed to a citizen have
penumbral zones and that the right to privacy is itself a fundamental right,
that 201 fundamental right must be subject to restriction on the basis of
compelling public interest."
(at p.
157, Para. 31) 181. Following the judicial expansion of the idea of `personal
liberty', the status of the `right to privacy' as a component of Article 21 has
been recognised and re-inforced. In R. Raj Gopal v. State of Tamil Nadu, (1994)
6 SCC 632, this Court dealt with a fact-situation where a convict intended to
publish his autobiography which described the involvement of some politicians
and businessmen in illegal activities. Since the publication of this work was
challenged on grounds such as the invasion of privacy among others, the Court
ruled on the said issue. It was held that the right to privacy could be described
as the `right to be let alone and a citizen has the right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood,
child-bearing and education among others. No one can publish anything
concerning the above matters without his consent whether truthful or otherwise
and whether laudatory or critical'. However, it was also ruled that exceptions
may be made if a person voluntarily thrusts himself 202 into a controversy or
any of these matters becomes part of public records or relates to an action of
a public official concerning the discharge of his official duties.
182. In
People's Union for Civil Liberties v. Union of India, AIR 1997 SC 568, it was
held that the unauthorised tapping of telephones by police personnel violated
the `right to privacy' as contemplated under Article 21. However, it was not
stated that telephone-tapping by the police was absolutely prohibited,
presumably because the same may be necessary in some circumstances to prevent
criminal acts and in the course of investigation. Hence, such intrusive
practices are permissible if done under a proper legislative mandate that
regulates their use. This intended balance between an individual's `right to
privacy' and `compelling public interest' has frequently occupied judicial
attention. Such a compelling public interest can be identified with the need to
prevent crimes and expedite investigations or to protect public health or
morality.
203 183.
For example, in X v. Hospital Z, (1998) 8 SCC 296, it was held that a person
could not invoke his `right to privacy' to prevent a doctor from disclosing his
HIV-positive status to others. It was ruled that in respect of HIV-positive
persons, the duty of confidentiality between the doctor and patient could be
compromised in order to protect the health of other individuals. With respect
to the facts in that case, Saghir Ahmad, J. held, at Para. 26-28:
"...
When a patient was found to be HIV (+), its disclosure by the Doctor could not
be violative of either the rule of confidentiality or the patient's right of
privacy as the lady with whom the patient was likely to be married was saved in
time by such disclosure, or else, she too would have been infected with a
dreadful disease if marriage had taken place and been consummated."
184. However,
a three judge bench partly overruled this decision in a review petition. In X
v. Hospital Z, (2003) 1 SCC 500, it was held that if an HIV-positive person
contracted marriage with a willing partner, then the same would not constitute
the offences defined by Sections 269 and 270 of the Indian Penal Code. [Section
269 of the IPC defines the offence of a `Negligent act likely to spread
infection of disease 204 dangerous to life' and Section 270 contemplates a
`Malignant act likely to spread infection of disease dangerous to life'.] A
similar question was addressed by the Andhra Pradesh High Court in M. Vijaya v.
Chairman and Managing Director, Singareni Collieries Co. Ltd., AIR 2001 AP 502,
at pp. 513- 514:
"There
is an apparent conflict between the right to privacy of a person suspected of
HIV not to submit himself forcibly for medical examination and the power and
duty of the State to identify HIV-infected persons for the purpose of stopping
further transmission of the virus.
In the
interests of the general public, it is necessary for the State to identify
HIV-positive cases and any action taken in that regard cannot be termed as
unconstitutional as under Article 47 of the Constitution, the State was under an
obligation to take all steps for the improvement of the public health. A law
designed to achieve this object, if fair and reasonable, in our opinion, will
not be in breach of Article 21 of the Constitution of India. ..."
185. The
discussion on the `right to privacy' in Sharda v. Dharampal, (supra.) also
cited a decision of the Court of Appeal (in the U.K.) in R (on the application
of S) v. Chief Constable of South Yorkshire, (2003) 1 All ER 148 (CA). The
contentious issues arose in respect of the retention of fingerprints and DNA
samples taken from persons who had 205 been suspected of having committed
offences in the past but were not convicted for them. It was argued that this
policy violated Articles 8 and 14 of the European Convention on Human Rights
and Fundamental Freedoms, 1950 [Hereinafter `EctHR]. Article 8 deals with the
`Right to respect for private and family life' while Article 14 lays down the
scope of the `Prohibition Against Discrimination'. For the present discussion,
it will be useful to examine the language of Article 8 of the EctHR:- Article 8
- Right to respect for private and family life
1.
Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There
shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others.
186. In
that case, a distinction was drawn between the `taking', `retention' and `use'
of fingerprints and DNA samples.
While the
`taking' of such samples from individual suspects could be described as a
reasonable measure in the course of 206 routine police functions, the
controversy arose with respect to the `retention' of samples taken from
individuals who had been suspected of having committing offences in the past
but had not been convicted for them. The statutory basis for the retention of
physical samples taken from suspects was Section 64(1A) of the Police and
Criminal Evidence Act, 1984. This provision also laid down that these samples could
only be used for purposes related to the `prevention or detection of crime, the
investigation of an offence or the conduct of a prosecution'. This section had
been amended to alter the older position which provided that physical samples
taken from suspects were meant to be destroyed once the suspect was cleared of
the charges or acquitted. As per the older position, it was only the physical
samples taken from convicted persons which could be retained by the police
authorities. It was contended that the amended provision was incompatible with
Articles 8 and 14 of the EctHR and hence the relief sought was that the
fingerprints and DNA samples of the concerned parties should be destroyed.
207 187.
In response to these contentions, the majority (Lord Woolf, C.J.) held that
although the retention of such material interfered with the Art. 8(1) rights of
the individuals (`right to respect for private and family life') from whom it
had been taken, that interference was justified by Art. 8(2). It was further reasoned
that the purpose of the impugned amendment, the language of which was very
similar to Art.
8(2), was
obvious and lawful. Nor were the adverse consequences to the individual
disproportionate to the benefit to the public. It was held, at Para. 17:
"So
far as the prevention and detection of crime is concerned, it is obvious the
larger the databank of fingerprints and DNA samples available to the police,
the greater the value of the databank will be in preventing crime and detecting
those responsible for crime. There can be no doubt that if every member of the
public was required to provide fingerprints and a DNA sample this would make a
dramatic contribution to the prevention and detection of crime. To take but one
example, the great majority of rapists who are not known already to their
victim would be able to be identified. However, the 1984 Act does not contain
blanket provisions either as to the taking, the retention, or the use of
fingerprints or samples; Parliament has decided upon a balanced approach."
208 Lord
Woolf, C.J. also referred to the following observations made by Lord Steyn in
an earlier decision of the House of Lords, which was reported as Attorney
General's Reference (No. 3 of 1999), (2001) 1 All ER 577, at p. 584:
"...
It must be borne in mind that respect for the privacy of defendants is not the
only value at stake. The purpose of the criminal law is to permit everyone to
go about their daily lives without fear of harm to person or property.
And it is
in the interests of everyone that serious crime should be effectively
investigated and prosecuted. There must be fairness to all sides. In a criminal
case this requires the court to consider a triangulation of interests.
It
involves taking into account the position of the accused, the victim and his or
her family, and the public."
On the
question of whether the retention of material samples collected from suspects
who had not been convicted was violative of the `Prohibition against
Discrimination' under Art.
14 of the
EctHR, it was observed, (2003) 1 All ER 148 (CA), at p. 162:
"In
the present circumstances when an offence is being investigated or is the
subject of a charge it is accepted that fingerprints and samples may be taken.
Where they have not been taken before any question of the retention arises,
they have to be taken so there would be the additional interference with their
rights which the taking involves. As no harmful consequences will flow from the
retention unless the fingerprints or sample match those 209 of someone alleged
to be responsible for an offence, the different treatment is fully
justified."
188. In
the present case, written submissions made on behalf of the respondents have
tried to liken the compulsory administration of the impugned techniques with
the DNA profiling technique. In light of this attempted analogy, we must stress
that the DNA profiling technique has been expressly included among the various
forms of medical examination in the amended explanation to Sections 53, 53-A
and 54 of the CrPC. It must also be clarified that a `DNA profile' is different
from a DNA sample which can be obtained from bodily substances. A DNA profile
is a record created on the basis of DNA samples made available to forensic
experts. Creating and maintaining DNA profiles of offenders and suspects are
useful practices since newly obtained DNA samples can be readily matched with
existing profiles that are already in the possession of law-enforcement
agencies. The matching of DNA samples is emerging as a vital tool for linking suspects
to specific criminal acts. It may also be recalled that the as per the majority
decision in Kathi Kalu Oghad, (supra.) the use 210 of material samples such as
fingerprints for the purpose of comparison and identification does not amount
to a testimonial act for the purpose of Article 20(3). Hence, the taking and
retention of DNA samples which are in the nature of physical evidence does not
face constitutional hurdles in the Indian context. However, if the DNA
profiling technique is further developed and used for testimonial purposes,
then such uses in the future could face challenges in the judicial domain.
189. The
judgment delivered in Sharda v. Dharampal, (supra.) had surveyed the
above-mentioned decisions to conclude that a person's right to privacy could be
justifiably curtailed if it was done in light of competing interests.
Reference
was also made to some statutes that permitted the compulsory administration of
medical tests. For instance, it was observed, at Para. 61-62:
"Having
outlined the law relating to privacy in India, it is relevant in this context
to notice that certain laws have been enacted by the Indian Parliament where
the accused may be subjected to certain medical or other tests.
211 By
way of example, we may refer to Sections 185, 202, 203 and 204 of the Motor
Vehicles Act, Sections 53 and 54 of the Code of Criminal Procedure and Section
3 of the Identification
of Prisoners Act, 1920. Reference in this connection
may also be made to Sections 269 and 270 of the Indian Penal Code.
Constitutionality of these laws, if challenge is thrown, may be upheld."
190.
However, it is important for us to distinguish between the considerations that
occupied this Court's attention in Sharda v. Dharampal, (supra.) and the ones
that we are facing in the present case. It is self-evident that the decision
did not to dwell on the distinction between medical tests whose results are
based on testimonial responses and those tests whose results are based on the
analysis of physical characteristics and bodily substances. It can be safely
stated that the Court did not touch on the distinction between testimonial acts
and physical evidence, simply because Article 20(3) is not applicable to a
proceeding of a civil nature.
191.
Moreover, a distinction must be made between the character of restraints placed
on the right to privacy. While the ordinary exercise of police powers
contemplates restraints of a 212 physical nature such as the extraction of
bodily substances and the use of reasonable force for subjecting a person to a
medical examination, it is not viable to extend these police powers to the
forcible extraction of testimonial responses. In conceptualising the `right to
privacy' we must highlight the distinction between privacy in a physical sense
and the privacy of one's mental processes.
192. So
far, the judicial understanding of privacy in our country has mostly stressed
on the protection of the body and physical spaces from intrusive actions by the
State. While the scheme of criminal procedure as well as evidence law mandates
interference with physical privacy through statutory provisions that enable
arrest, detention, search and seizure among others, the same cannot be the
basis for compelling a person `to impart personal knowledge about a relevant
fact'.
The
theory of interrelationship of rights mandates that the right against
self-incrimination should also be read as a component of `personal liberty'
under Article 21. Hence, our understanding of the `right to privacy' should
account for its 213 intersection with Article 20(3). Furthermore, the `rule
against involuntary confessions' as embodied in Sections 24, 25, 26 and 27 of
the Evidence Act, 1872 seeks to serve both the objectives of reliability as
well as voluntariness of testimony given in a custodial setting. A conjunctive
reading of Articles 20(3) and 21 of the Constitution along with the principles
of evidence law leads us to a clear answer. We must recognise the importance of
personal autonomy in aspects such as the choice between remaining silent and
speaking. An individual's decision to make a statement is the product of a
private choice and there should be no scope for any other individual to
interfere with such autonomy, especially in circumstances where the person
faces exposure to criminal charges or penalties.
193.
Therefore, it is our considered opinion that subjecting a person to the
impugned techniques in an involuntary manner violates the prescribed boundaries
of privacy. Forcible interference with a person's mental processes is not
provided for under any statute and it most certainly comes into conflict 214
with the `right against self-incrimination'. However, this determination does
not account for circumstances where a person could be subjected to any of the
impugned tests but not exposed to criminal charges and the possibility of
conviction. In such cases, he/she could still face adverse consequences such as
custodial abuse, surveillance, undue harassment and social stigma among others.
In order to address such circumstances, it is important to examine some other
dimensions of Article 21.
Safeguarding
the `right against cruel, inhuman or degrading treatment' 194. We will now
examine whether the act of forcibly subjecting a person to any of the impugned
techniques constitutes `cruel, inhuman or degrading treatment', when considered
by itself. This inquiry will account for the permissibility of these techniques
in all settings, including those where a person may not be subsequently
prosecuted but could face adverse consequences of a non-penal nature. The
appellants have contended that the use of the impugned 215 techniques amounts
to `cruel, inhuman or degrading treatment'. Even though the Indian Constitution
does not explicitly enumerate a protection against `cruel, inhuman or degrading
punishment or treatment' in a manner akin to the Eighth Amendment of the U.S.
Constitution, this Court has discussed this aspect in several cases. For
example, in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, V.R. Krishna
Iyer, J. observed at pp. 518-519:
"True,
our Constitution has no `due process' clause or the VIII Amendment; but, in
this branch of law, after Cooper [(1970) 1 SCC 248] and Maneka Gandhi, [(1978)
1 SCC 248] the consequence is the same. For what is punitively outrageous,
scandalizingly unusual or cruel and rehabilitatively counter-productive, is
unarguably unreasonable and arbitrary and is shot down by Article 14 and 19 and
if inflicted with procedural unfairness, falls foul of Article 21. Part III of
the Constitution does not part company with the prisoner at the gates, and
judicial oversight protects the prisoner's shrunken fundamental rights, if
flouted, frowned upon or frozen by the prison authority. Is a person under
death sentence or undertrial unilaterally dubbed dangerous liable to suffer
extra torment too deep for tears? Emphatically no, lest social justice, dignity
of the individual, equality before the law, procedure established by law and
the seven lamps of freedom (Article 19) become chimerical constitutional
claptrap. Judges, even within a prison setting, are the real, though
restricted, ombudsmen empowered to proscribe and prescribe, humanize and
civilize the life- style within the carcers. The operation of Articles 14, 19
216 and 21 may be pared down for a prisoner but not puffed out altogether.
...."
195. In
the above-mentioned case, this Court had disapproved of practices such as
solitary-confinement and the use of bar- fetters in prisons. It was held that
prisoners were also entitled to `personal liberty' though in a limited sense,
and hence judges could enquire into the reasonableness of their treatment by
prison-authorities. Even though `the right against cruel, inhuman and degrading
punishment' cannot be asserted in an absolute sense, there is a sufficient
basis to show that Article 21 can be invoked to protect the `bodily integrity
and dignity' of persons who are in custodial environments. This protection
extends not only to prisoners who are convicts and under-trials, but also to
those persons who may be arrested or detained in the course of investigations
in criminal cases. Judgments such as D.K. Basu v. State of West Bengal, AIR
1997 SC 610, have stressed upon the importance of preventing the `cruel,
inhuman or degrading treatment' of any person who is taken into custody. In
respect of the present case, any person who is 217 forcibly subjected to the
impugned tests in the environs of a forensic laboratory or a hospital would be
effectively in a custodial environment for the same. The presumption of the
person being in a custodial environment will apply irrespective of whether
he/she has been formally accused or is a suspect or a witness. Even if there is
no overbearing police presence, the fact of physical confinement and the
involuntary administration of the tests is sufficient to constitute a custodial
environment for the purpose of attracting Article 20(3) and Article 21. It was
necessary to clarify this aspect because we are aware of certain instances
where persons are questioned in the course of investigations without being
brought on the record as witnesses. Such omissions on part of investigating
agencies should not be allowed to become a ground for denying the protections
that are available to a person in custody.
196. The
appellants have also drawn our attention to some international conventions and
declarations. For instance in 218 the Universal Declaration of Human Rights [GA
Res. 217 A (III) of December 10 1948], Article 5 states that:
"No
one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment."
Article 7
of the International Covenant on Civil and Political Rights (ICCPR) [GA Res.
2200A (XXI), entered into force March 23, 1976] also touches on the same
aspect. It reads as follows:
"...No
one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be subjected without his free
consent to medical or scientific experimentation."
Special
emphasis was placed on the definitions of `torture' as well as `cruel, inhuman
or degrading treatment or punishment' in Articles 1 and 16 of the Convention
Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
1984.
Article 1
1. For
the purposes of this Convention, torture means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain
or suffering is inflicted by or 219 at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent in
or incidental to lawful sanctions.
2. This
article is without prejudice to any international instrument or national
legislation which does or may contain provisions of wider application.
Article 16
1. Each
State Party shall undertake to prevent in any territory under its jurisdiction
other acts of cruel, inhuman or degrading treatment or punishment which do not
amount to torture as defined in Article 1, when such acts are committed by or
at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity. In particular, the obligations
contained in Article 10, 11 , 12 and 13 shall apply with the substitution for
references to torture or references to other forms of cruel, inhuman or
degrading treatment or punishment.
2. The
provisions of this Convention are without prejudice to the provisions of any
other international instrument or national law which prohibit cruel, inhuman or
degrading treatment or punishment or which relate to extradition or expulsion.
197. We
were also alerted to the Body of Principles for the Protection of all persons
under any form of Detention or Imprisonment [GA Res. 43/173, 76th plenary
meeting, 9 December 1988] which have been adopted by the United Nations General
Assembly. Principles 1, 6 and 21 hold relevance for us:
220
Principle 1 All persons under any form of detention or imprisonment shall be
treated in a humane manner and with respect for the inherent dignity of the
human person.
Principle
6 No person under any form of detention or imprisonment shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment. No
circumstance whatever may be invoked as a justification for torture or other
cruel, inhuman or degrading treatment or punishment.
The term
`cruel, inhuman or degrading treatment or punishment' should be interpreted so
as to extend the widest possible protection against abuses, whether physical or
mental, including the holding of a detained or imprisoned person in conditions
which deprive him, temporarily or permanently, of the use of any of his natural
senses, such as sight or hearing, or of his awareness of place and the passing
of time.
Principle
21
1. It
shall be prohibited to take undue advantage of the situation of a detained or
imprisoned person for the purpose of compelling him to confess, to incriminate
himself otherwise or to testify against any other person.
2. No
detained person while being interrogated shall be subjected to violence,
threats or methods of interrogation which impair his capacity of decision or
judgment.
198. It
was shown that protections against torture and `cruel, inhuman or degrading
treatment or punishment' are accorded to persons who are arrested or detained
in the course of armed conflicts between nations. In the Geneva Convention
relative to 221 the Treatment of Prisoners of War (entry into force 21 October
1950) the relevant extract reads:
Article
17 ... No physical or mental torture, nor any other form of coercion, may be
inflicted on prisoners of war to secure from them information of any kind
whatever. Prisoners of war who refuse to answer may not be threatened,
insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
...
199.
Having surveyed these materials, it is necessary to clarify that we are not
absolutely bound by the contents of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (1984) [Hereinafter
`Torture Convention'] This is so because even though India is a signatory to
this Convention, it has not been ratified by Parliament in the manner provided
under Article 253 of the Constitution and neither do we have a national
legislation which has provisions analogous to those of the Torture Convention.
However, these materials do hold significant persuasive value since they
represent an evolving international consensus on the nature and specific
contents of human rights norms.
222 200.
The definition of torture indicates that the threshold for the same is the
intentional infliction of physical or mental pain and suffering, by or at the
instance of a public official for the purpose of extracting information or
confessions. `Cruel, Inhuman or Degrading Treatment' has been defined as
conduct that does not amount to torture but is wide enough to cover all kinds
of abuses. Hence, proving the occurrence of `cruel, inhuman or degrading
treatment' would require a lower threshold than that of torture. In addition to
highlighting these definitions, the counsel for the appellants have submitted
that causing physical pain by injecting a drug can amount to `Injury' as
defined by Section 44 of the IPC or `Hurt' as defined in Section 319 of the
same Code.
201. In
response, the counsel for the respondents have drawn our attention to
literature which suggests that in the case of the impugned techniques, the
intention on part of the investigators is to extract information and not to
inflict any pain or suffering. Furthermore, it has been contended that the 223
actual administration of either the narcoanalysis technique, polygraph
examination or the BEAP test does not involve a condemnable degree of `physical
pain or suffering'. Even though some physical force may be used or threats may
be given to compel a person to undergo the tests, it was argued that the
administration of these tests ordinarily does not result in physical injuries.
[See: Linda M. Keller, `Is Truth Serum Torture?' 20 American University
International Law Review 521-612 (2005)] However, it is quite conceivable that
the administration of any of these techniques could involve the infliction of
`mental pain or suffering' and the contents of their results could expose the
subject to physical abuse. When a person undergoes a narcoanalysis test, he/she
is in a half- conscious state and subsequently does not remember the
revelations made in a drug-induced state. In the case of polygraph examination
and the BEAP test, the test subject remains fully conscious during the tests
but does not immediately know the nature and implications of the results
derived from the same. However, when he/she later learns about the contents of
the revelations, they may prove to be 224 incriminatory or be in the nature of
testimony that can be used to prosecute other individuals. We have also
highlighted the likelihood of a person making incriminatory statements when
he/she is subsequently confronted with the test results.
The
realisation of such consequences can indeed cause `mental pain or suffering'
for the person who was subjected to these tests. The test results could also
support the theories or suspicions of the investigators in a particular case.
These results could very well confirm suspicions about a person's involvement
in a criminal act. For a person in custody, such confirmations could lead to
specifically targeted behaviour such as physical abuse. In this regard, we have
repeatedly expressed our concern with situations where the test results could
trigger undesirable behaviour.
202. We
must also contemplate situations where a threat given by the investigators to
conduct any of the impugned tests could prompt a person to make incriminatory
statements or to undergo some mental trauma. Especially in cases of individuals
from weaker sections of society who are unaware 225 of their fundamental rights
and unable to afford legal advice, the mere apprehension of undergoing
scientific tests that supposedly reveal the truth could push them to make
confessional statements. Hence, the act of threatening to administer the
impugned tests could also elicit testimony. It is also quite conceivable that
an individual may give his/her consent to undergo the said tests on account of threats,
false promises or deception by the investigators. For example, a person may be
convinced to give his/her consent after being promised that this would lead to
an early release from custody or dropping of charges. However, after the
administration of the tests the investigators may renege on such promises. In
such a case the relevant inquiry is not confined to the apparent voluntariness
of the act of undergoing the tests, but also includes an examination of the
totality of circumstances.
203. Such
a possibility had been outlined by the National Human Rights Commission which
had published `Guidelines relating to administration of Polygraph test (Lie
Detector test) on 226 an accused (2000)'. The relevant extract has been
reproduced below:
"...
The lie detector test is much too invasive to admit of the argument that the
authority for Lie Detector tests comes from the general power to interrogate
and answer questions or make statements. (Ss. 160-167 CrPC) However, in India
we must proceed on the assumption of constitutional invasiveness and
evidentiary impermissiveness to take the view that such holding of tests is a
prerogative of the individual, not an empowerment of the police. In as much as
this invasive test is not authorised by law, it must perforce be regarded as
illegal and unconstitutional unless it is voluntarily undertaken under
non-coercive circumstances. If the police action of conducting a lie detector
test is not authorised by law and impermissible, the only basis on which it
could be justified is, if it is volunteered. There is a distinction between:
(a) volunteering, and (b) being asked to volunteer. This distinction is of some
significance in the light of the statutory and constitutional protections
available to any person. There is a vast difference between a person saying, `I
wish to take a lie detector test because I wish to clear my name', and when a
person is told by the police, `If you want to clear your name, take a lie
detector test'. A still worse situation would be where the police say, `Take a
lie detector test, and we will let you go'. In the first example, the person
voluntarily wants to take the test. It would still have to be examined whether
such volunteering was under coercive circumstances or not. In the second and
third examples, the police implicitly (in the second example) and explicitly
(in the third example) link up the taking of the lie detector test to allowing
the accused to go free."
227 204.
We can also contemplate a possibility that even when an individual freely
consents to undergo the tests in question, the resulting testimony cannot be
readily characterised as voluntary in nature. This is attributable to the
differences between the manner in which the impugned tests are conducted and an
ordinary interrogation. In an ordinary interrogation, the investigator asks
questions one by one and the subject has the choice of remaining silent or
answering each of these questions. This choice is repeatedly exercised after
each question is asked and the subject decides the nature and content of each
testimonial response. On account of the continuous exercise of such a choice,
the subject's verbal responses can be described as voluntary in nature.
However,
in the context of the impugned techniques the test subject does not exercise
such a choice in a continuous manner. After the initial consent is given, the
subject has no conscious control over the subsequent responses given during the
test. In case of the narcoanalysis technique, the subject speaks in a
drug-induced state and is clearly not aware of his/her own responses at the
time. In the context of polygraph 228 examination and the BEAP tests, the
subject cannot anticipate the contents of the `relevant questions' that will be
asked or the `probes' that will be shown. Furthermore, the results are derived
from the measurement of physiological responses and hence the subject cannot
exercise an effective choice between remaining silent and imparting personal
knowledge. In light of these facts, it was contended that a presumption cannot
be made about the voluntariness of the test results even if the subject had
given prior consent. In this respect, we can re- emphasize Principle 6 and 21
of the Body of Principles for the Protection of all persons under any form of
Detention or Imprisonment (1988). The explanation to Principle 6 provides that:
"The
term `cruel, inhuman or degrading treatment or punishment' should be
interpreted so as to extend the widest possible protection against abuses,
whether physical or mental, including the holding of a detained or imprisoned
person in conditions which deprive him, temporarily or permanently, of the use
of any of his natural senses, such as sight or hearing, or of his awareness of
place and the passing of time."
Furthermore,
Principle 21(2) lays down that:
229
"No detained person while being interrogated shall be subjected to
violence, threats or methods of interrogation which impair his capacity of
decision or judgment."
205. It
is undeniable that during a narcoanalysis interview, the test subject does lose
`awareness of place and passing of time'. It is also quite evident that all the
three impugned techniques can be described as methods of interrogation which
impair the test subject's `capacity of decision or judgment'. Going by the language
of these principles, we hold that the compulsory administration of the impugned
techniques constitutes `cruel, inhuman or degrading treatment' in the context
of Article 21. It must be remembered that the law disapproves of involuntary
testimony, irrespective of the nature and degree of coercion, threats, fraud or
inducement used to elicit the same. The popular perceptions of terms such as
`torture' and `cruel, inhuman or degrading treatment' are associated with gory
images of blood-letting and broken bones. However, we must recognise that a
forcible intrusion into a person's mental processes is also an affront to human
dignity and liberty, often with grave and long-lasting 230 consequences. [A
similar conclusion has been made in the following paper: Marcy Strauss,
`Criminal Defence in the Age of Terrorism - Torture', 48 New York Law School
Law Review 201-274 (2003/2004)] 206. It would also be wrong to sustain a
comparison between the forensic uses of these techniques and the practice of
medicine. It has been suggested that patients undergo a certain degree of
`physical or mental pain and suffering' on account of medical interventions
such as surgeries and drug- treatments. However, such interventions are
acceptable since the objective is to ultimately cure or prevent a disease or
disorder. So it is argued that if the infliction of some `pain and suffering'
is permitted in the medical field, it should also be tolerated for the purpose
of expediting investigations in criminal cases. This is the point where our
constitutional values step in. A society governed by rules and liberal values
makes a rational distinction between the various circumstances where
individuals face pain and suffering.
While the
infliction of a certain degree of pain and suffering is 231 mandated by law in
the form of punishments for various offences, the same cannot be extended to
all those who are questioned during the course of an investigation. Allowing
the same would vest unlimited discretion and lead to the disproportionate exercise
of police powers.
Incompatibility
with the `Right to fair trial' 207. The respondents' position is that the
compulsory administration of the impugned techniques should be permitted at
least for investigative purposes, and if the test results lead to the discovery
of fresh evidence, then these fruits should be admissible. We have already
explained in light of the conjunctive reading of Article 20(3) of the
Constitution and Section 27 of the Evidence Act, that if the fact of compulsion
is proved, the test results will not be admissible as evidence. However, for
the sake of argument, if we were to agree with the respondents and allow
investigators to compel individuals to undergo these tests, it would also
affect some of the key components of the `right to fair trial'.
232 208.
The decision of this Court in D.K. Basu v. State of West Bengal, AIR 1997 SC
610, had stressed upon the entitlement of a person in custody to consult a
lawyer. Access to legal advice is an essential safeguard so that an individual
can be adequately apprised of his constitutional and statutory rights.
This is
also a measure which checks custodial abuses.
However,
the involuntary administration of any of the impugned tests can lead to a
situation where such legal advice becomes ineffective. For instance even if a
person receives the best of legal advice before undergoing any of these tests,
it cannot prevent the extraction of information which may prove to be
inculpatory by itself or lead to the subsequent discovery of incriminating materials.
Since the subject has no conscious control over the drug-induced revelations or
substantive inferences, the objective of providing access to legal advice are
frustrated.
209.
Since the subject is not immediately aware of the contents of the drug-induced
revelations or substantive inferences, it also conceivable that the
investigators may chose 233 not to communicate them to the subject even after
completing the tests. In fact statements may be recorded or charges framed
without the knowledge of the test subject. At the stage of trial, the
prosecution is obliged to supply copies of all incriminating materials to the
defendant but reliance on the impugned tests could curtail the opportunity of
presenting a meaningful and wholesome defence. If the contents of the
revelations or inferences are communicated much later to the defendant, there
may not be sufficient time to prepare an adequate defence.
210.
Earlier in this judgment, we had surveyed some foreign judicial precedents
dealing with each of the tests in question.
A common
concern expressed with regard to each of these techniques was the questionable
reliability of the results generated by them. In respect of the narcoanalysis
technique, it was observed that there is no guarantee that the drug- induced
revelations will be truthful. Furthermore, empirical studies have shown that
during the hypnotic stage, individuals are prone to suggestibility and there is
a good 234 chance that false results could lead to a finding of guilt or
innocence. As far as polygraph examination is concerned, though there are some
studies showing improvements in the accuracy of results with advancement in
technology, there is always scope for error on account of several factors.
Objections
can be raised about the qualifications of the examiner, the physical conditions
under which the test was conducted, the manner in which questions were framed
and the possible use of `countermeasures' by the test subject. A significant
criticism of polygraphy is that sometimes the physiological responses triggered
by feelings such as anxiety and fear could be misread as those triggered by
deception.
Similarly,
with the P300 Waves test there are inherent limitations such as the subject
having had `prior exposure' to the `probes' which are used as stimuli.
Furthermore, this technique has not been the focus of rigorous independent
studies. The questionable scientific reliability of these techniques comes into
conflict with the standard of proof `beyond reasonable doubt' which is an
essential feature of criminal trials.
235 211.
Another factor that merits attention is the role of the experts who administer
these tests. While the consideration of expert opinion testimony has become a
mainstay in our criminal justice system with the advancement of fields such as
forensic toxicology, questions have been raised about the credibility of
experts who are involved in administering the impugned techniques. It is a
widely accepted principle for evaluating the validity of any scientific
technique that it should have been subjected to rigorous independent studies
and peer review. This is so because the persons who are involved in the
invention and development of certain techniques are perceived to have an
interest in their promotion. Hence, it is quite likely that such persons may
give unduly favourable responses about the reliability of the techniques in
question.
212. Even
though India does not have a jury system, the use of the impugned techniques
could impede the fact-finding role of a trial judge. This is a special concern
in our legal system, 236 since the same judge presides over the evidentiary
phase of the trial as well as the guilt phase. The consideration of the test
results or their fruits for the purpose of deciding on their admissibility
could have a prejudicial effect on the judge's mind even if the same are not
eventually admitted as evidence.
Furthermore,
we echo the concerns expressed by the Supreme Court of Canada in R v. Beland,
[1987] 36 C.C.C. (3d) 481, where it was observed that reliance on scientific
techniques could cloud human judgment on account of an `aura of infallibility'.
While judges are expected to be impartial and objective in their evaluation of
evidence, one can never discount the possibility of undue public pressure in
some cases, especially when the test results appear to be inculpatory. We have
already expressed concerns with situations where media organisations have
either circulated the video-recordings of narcoanalysis interviews or
broadcasted dramatized re-constructions, especially in sensational criminal
cases.
237 213.
Another important consideration is that of ensuring parity between the
procedural safeguards that are available to the prosecution and the defence. If
we were to permit the compulsory administration of any of the impugned
techniques at the behest of investigators, there would be no principled basis
to deny the same opportunity to defendants as well as witnesses. If the
investigators could justify reliance on these techniques, there would be an
equally compelling reason to allow the indiscrete administration of these tests
at the request of convicts who want re-opening of their cases or even for the
purpose of attacking and rehabilitating the credibility of witnesses during a
trial. The decision in United States v.
Scheffer,
523 US 303 (1998), has highlighted the concerns with encouraging litigation
that is collateral to the main facts in issue. We are of the view that an
untrammelled right of resorting to the techniques in question will lead to an
unnecessary rise in the volume of frivolous litigation before our Courts.
238 214.
Lastly, we must consider the possibility that the victims of offences could be
forcibly subjected to any of these techniques during the course of
investigation. We have already highlighted a provision in the Laboratory
Procedure Manual for Polygraph tests which contemplates the same for
ascertaining the testimony of victims of sexual offences. In light of the
preceding discussion, it is our view that irrespective of the need to expedite
investigations in such cases, no person who is a victim of an offence can be
compelled to undergo any of the tests in question. Such a forcible
administration would be an unjustified intrusion into mental privacy and could
lead to further stigma for the victim.
Examining
the `compelling public interest' 215. The respondents have contended that even
if the compulsory administration of the impugned techniques amounts to a
seemingly disproportionate intrusion into personal liberty, their investigative
use is justifiable since there is a compelling public interest in eliciting
information that could help in preventing criminal activities in the future.
239 Such
utilitarian considerations hold some significance in light of the need to
combat terrorist activities, insurgencies and organised crime. It has been
argued that such exigencies justify some intrusions into civil liberties. The
textual basis for these restraints could be grounds such as preserving the
`sovereignty and integrity of India', `the security of the state' and `public
order' among others. It was suggested that if investigators are allowed to rely
on these tests, the results could help in uncovering plots, apprehending
suspects and preventing armed attacks as well as the commission of offences.
Reference was also made to the frequently discussed `Ticking Bomb' scenario.
This hypothetical situation examines the choices available to investigators
when they have reason to believe that the person whom they are interrogating is
aware of the location of a bomb. The dilemma is whether it is justifiable to
use torture or other improper means for eliciting information which could help
in saving the lives of ordinary citizens. [The arguments for the use of `truth
serums' in such situations have been examined in the following articles: Jason
R. Odeshoo, `Truth or Dare?: Terrorism and Truth Serum in 240 the Post- 9/11
World, 57 Stanford Law Review 209-255 (October 2004); Kenneth Lasson, `Torture,
Truth Serum, and Ticking Bombs: Toward a pragmatic perspective on coercive
interrogation', 39 Loyola University Chicago Law Journal 329- 360 (Winter
2008)] 216. While these arguments merit consideration, it must be noted that
ordinarily it is the task of the legislature to arrive at a pragmatic balance
between the often competing interests of `personal liberty' and public safety.
In our capacity as a constitutional court, we can only seek to preserve the
balance between these competing interests as reflected in the text of the
Constitution and its subsequent interpretation. There is absolutely no
ambiguity on the status of principles such as the `right against
self-incrimination' and the various dimensions of `personal liberty'. We have
already pointed out that the rights guaranteed in Articles 20 and 21 of the Constitution
of India have been given a non-derogable status and they are available to
citizens as well as foreigners. It is not 241 within the competence of the
judiciary to create exceptions and limitations on the availability of these
rights.
217. Even
though the main task of constitutional adjudication is to safeguard the core
organising principles of our polity, we must also highlight some practical
concerns that strengthen the case against the involuntary administration of the
tests in question. Firstly, the claim that the results obtained from these
techniques will help in extraordinary situations is questionable. All of the
tests in question are those which need to be patiently administered and the
forensic psychologist or the examiner has to be very skilful and thorough while
interpreting the results. In a narcoanalysis test the subject is likely to
divulge a lot of irrelevant and incoherent information.
The
subject is as likely to divulge false information as he/she is likely to reveal
useful facts. Sometimes the revelations may begin to make sense only when
compared with the testimony of several other individuals or through the
discovery of fresh materials. In a polygraph test, interpreting the results is
a complex process that involves accounting for distortions such 242 as
`countermeasures' used by the subject and weather conditions among others. In a
BEAP test, there is always the possibility of the subject having had prior
exposure to the `probes' that are used as stimuli. All of this is a gradually
unfolding process and it is not appropriate to argue that the test results will
always prove to be crucial in times of exigency.
It is
evident that both the tasks of preparing for these tests and interpreting their
results need considerable time and expertise.
218.
Secondly, if we were to permit the forcible administration of these techniques,
it could be the first step on a very slippery-slope as far as the standards of
police behaviour are concerned. In some of the impugned judgments, it has been
suggested that the promotion of these techniques could reduce the regrettably
high incidence of `third degree methods' that are being used by policemen all
over the country. 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 investigators will increasingly seek reliance on the 243 impugned
techniques rather than engaging in a thorough investigation. The widespread use
of `third-degree' interrogation methods so as to speak is a separate problem
and needs to be tackled through long-term solutions such as more emphasis on
the protection of human rights during police training, providing adequate
resources for investigators and stronger accountability measures when such
abuses do take place.
219.
Thirdly, the claim that the use of these techniques will only be sought in
cases involving heinous offences rings hollow since there will no principled
basis for restricting their use once the investigators are given the discretion
to do so.
From the
statistics presented before us as well as the charges filed against the parties
in the impugned judgments, it is obvious that investigators have sought
reliance on the impugned tests to expedite investigations, unmindful of the
nature of offences involved. In this regard, we do not have the authority to
permit the qualified use of these techniques by way of enumerating the offences
which warrant their use. By 244 itself, permitting such qualified use would
amount to a law- making function which is clearly outside the judicial domain.
220. One
of the main functions of constitutionally prescribed rights is to safeguard the
interests of citizens in their interactions with the government. As the
guardians of these rights, we will be failing in our duty if we permit any
citizen to be forcibly subjected to the tests in question. One could argue that
some of the parties who will benefit from this decision are hardened criminals
who have no regard for societal values.
However,
it must be borne in mind that in constitutional adjudication our concerns are
not confined to the facts at hand but extend to the implications of our
decision for the whole population as well as the future generations. Sometimes
there are apprehensions about judges imposing their personal sensibilities
through broadly worded terms such as `substantive due process', but in this
case our inquiry has been based on a faithful understanding of principles
entrenched in our Constitution. In this context it would be useful to refer to
some observations made by the Supreme 245 Court of Israel in Public Committee
Against Torture in Israel v. State of Israel, H.C. 5100 / 94 (1999), where it
was held that the use of physical means (such as shaking the suspect,
sleep-deprivation and enforcing uncomfortable positions for prolonged periods)
during interrogation of terrorism suspects was illegal. Among other questions
raised in that case, it was also held that the `necessity' defence could be
used only as a post factum justification for past conduct and that it could not
be the basis of a blanket pre-emptive permission for coercive interrogation
practices in the future.
Ruling
against such methods, Aharon Barak, J. held at p. 26:
"...
This is the destiny of democracy, as not all means are acceptable to it, and
not all practices employed by its enemies are open before it. Although a
democracy must often fight with one hand tied behind its back, it nonetheless
has the upper hand. Preserving the `Rule of Law' and recognition of an individual's
liberty constitutes an important component in its understanding of
security."
CONCLUSION
221. In our considered opinion, the compulsory administration of the impugned
techniques violates the `right against self- incrimination'. This is because the
underlying rationale of the 246 said right is to ensure the reliability as well
as voluntariness of statements that are admitted as evidence. This Court has
recognised that the protective scope of Article 20(3) extends to the
investigative stage in criminal cases and when read with Section 161(2) of the
Code of Criminal Procedure, 1973 it protects accused persons, suspects as well
as witnesses who are examined during an investigation. The test results cannot
be admitted in evidence if they have been obtained through the use of
compulsion. Article 20(3) protects an individual's choice between speaking and
remaining silent, irrespective of whether the subsequent testimony proves to be
inculpatory or exculpatory. Article 20(3) aims to prevent the forcible `conveyance
of personal knowledge that is relevant to the facts in issue'. The results
obtained from each of the impugned tests bear a `testimonial' character and
they cannot be categorised as material evidence.
222. We
are also of the view that forcing an individual to undergo any of the impugned
techniques violates the standard of `substantive due process' which is required
for restraining 247 personal liberty. Such a violation will occur irrespective
of whether these techniques are forcibly administered during the course of an
investigation or for any other purpose since the test results could also expose
a person to adverse consequences of a non-penal nature. The impugned techniques
cannot be read into the statutory provisions which enable medical examination
during investigation in criminal cases, i.e. the Explanation to Sections 53,
53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive
interpretation is not feasible in light of the rule of `ejusdem generis' and
the considerations which govern the interpretation of statutes in relation to
scientific advancements. We have also elaborated how 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. Furthermore, placing reliance on the results gathered from
these techniques comes into conflict with the `right to fair trial'.
Invocations of a compelling public interest cannot justify 248 the dilution of
constitutional rights such as the `right against self-incrimination'.
223. In
light of these conclusions, we hold that no individual should be forcibly
subjected to any of the techniques in question, whether in the context of
investigation in criminal cases or otherwise. Doing so would amount to an
unwarranted intrusion into personal liberty. However, we do leave room for the
voluntary administration of the impugned 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
voluntary administered test results can be admitted, in accordance with Section
27 of the Evidence Act, 1872. The National Human Rights Commission had
published `Guidelines for the Administration of Polygraph Test (Lie 249
Detector Test) on an Accused' in 2000. These guidelines should be strictly
adhered to and similar safeguards should be adopted for conducting the
`Narcoanalysis technique' and the `Brain Electrical Activation Profile' test.
The text of these guidelines has been reproduced below:
(i) No
Lie Detector Tests should be administered except on the basis of consent of the
accused. An option should be given to the accused whether he wishes to avail
such test.
(ii) If
the accused volunteers for a Lie Detector Test, he should be given access to a
lawyer and the physical, emotional and legal implication of such a test should
be explained to him by the police and his lawyer.
(iii) The
consent should be recorded before a Judicial Magistrate.
(iv)
During the hearing before the Magistrate, the person alleged to have agreed
should be duly represented by a lawyer.
(v) At
the hearing, the person in question should also be told in clear terms that the
statement that is made shall not be a `confessional' statement to the
Magistrate but will have the status of a statement made to the police.
(vi) The
Magistrate shall consider all factors relating to the detention including the
length of detention and the nature of the interrogation.
(vii) The
actual recording of the Lie Detector Test shall be done by an independent
agency (such as a hospital) and conducted in the presence of a lawyer.
250
(viii) A full medical and factual narration of the manner of the information
received must be taken on record.
224. The
present batch of appeals is disposed of accordingly.
..............................CJI [K.G. BALAKRISHNAN]
................................,J. [R.V. RAVEENDRAN]
.............................., J
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