Lie detector tests (also known as “Polygraph tests”), narcoanalysis & brain- mapping are some of the present-day revolutionary tools of forensic science that are usually proved very fruitful during police investigations. On the one hand, these methods are considered inhumane and degrading investigation tactics; on the other hand, they are also considered useful for serious or vicious crime investigations. In fact, you won’t believe but sometimes a person, while applying for a job, also undergoes a lie detector or polygraph test (say, govt. jobs with the FBI or CIA).
As the name suggests, the objective of conducting a lie detector test is to check whether a person is telling the truth or lying while answering the questions asked, and not to forget but the administration of this test is different from narcoanalysis & brain mapping. But are they legal in India? This is the main point of discussion. Days after the Delhi Police approached a court to conduct a polygraph test on Aaftab Poonawala, who was suspected of killing his partner Shraddha Walkar, the legality of such tests, is again airing in the media.
Let’s discuss in this article the meaning of the polygraph test, narcoanalysis & brain- mapping, how they are conducted, constitutional & legal provisions, its admissibility and many more.
How is a polygraph & narco- analysis administered?
1. When a polygraph test is conducted on a person, four to six sensors are attached to him. In the polygraph machine, multiple ("poly") signals from the sensors are recorded on a single strip of moving paper ("graph"). These sensors generally record:
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When the polygraph test commences, the questioner asks a few questions to establish the norms for the person's signals, after which the real questions are asked. Throughout questioning, each of the person's signals is recorded on the moving paper.
So, during or after the polygraph test, a polygraph examiner checks whether the vital signs changed significantly on any question; this is done by looking at the graph. For example a faster heart rate, higher blood pressure, and increased sweating or perspiration indicate that the person is lying.
2. In Narcoanalysis test, which is different from the polygraph test, involves the injection or administration of a drug (such as sodium pentothal, scopolamine and sodium amytal), i.e., truth serum, which causes the subject to enter into various stages of anaesthesia.
3. And, brain mapping is a revolutionary new tool for accurately identifying the problematic areas of the brain.
Is consent required for these tests?
Suppose you have watched the series “Suits”. In that case, you might have heard them saying, “I Take the Fifth”, meaning a right under which an accused refuses to answer questions or provide information that might incriminate (testifying against oneself) them in a court of law. Similarly, for India, it’s Article 20(3) of the Indian Constitution. May not sound as fancy as USA’s, but it gives the right against incrimination.
Before moving ahead, always remember that in India, confessions made to police officers are never admissible in a court of law, and just like confessions, a polygraph test usually doesn’t have legal validity in the courts as it must be consented by the accused himself & a semi-conscious person makes it. However, the courts can grant limited admissibility depending on the circumstances under which the test was obtained. And as per Selvi’s case (discussed ahead), a polygraph test is not a confession and this case gave a landmark ruling on the admissibility of a polygraph test that must be followed.
Constitutional & Legal Provisions of polygraph, narcoanalysis test
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Narco-analysis, brain mapping, and polygraph (lie detector) test against the will or consent of the accused would be an infringement of Article 20 (3) of the Indian Constitution.
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Article 20(3) deals with the right against self-incrimination or the right to remain silent (a common law criminal jurisprudence). This constitutional right states that “no person accused of any offence shall be compelled to be a witness against himself”.
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Therefore, subjecting an accused to undergo the polygraph or narcoanalysis test is considered a blatant violation of Art. 20 (3), as the accused is testifying against himself. So, obtaining consent from the accused before conducting such tests is necessary.
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The application of Narco-analysis involves the prime question concerning judicial matters and also human rights. The test is controversial as it raises issues relating to violating an individual’s rights and freedom.
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The courts usually criticise polygraph tests or Narco-analysis as it comprises mental torture violating the right to life under Article 21 (right to privacy).
Cases on narcoanalysis test
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State of Bombay v. Kathikalu (1961)
Held: It must be shown that the accused was forced to make a statement that would likely incriminate him in a court of law. But there has to be compulsion or duress, if the accused confesses without any inducement, threat or promise and voluntarily gives consent, then Art. 20(3) will not apply.
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Nandini Sathpathy v. P.L.Dani (1978)
Held: Right to Silence had been provided to the accused by virtue of the pronouncement in this case. It was pleaded that no one can forcibly extract statements from the accused, who has the right to maintain silence during the interrogation in the investigation. By the administration of such polygraph tests etc., forcible intrusion into one’s mind is done, thus violating the legitimacy of the Right to Silence so such tests are not reliable. An accused had a right of silence under Article 20(3) of the Constitution & Section 161 (2) of CrPC. The Supreme Court upheld these pleadings.
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M.P. Sharma v. Satish Chandra (1954)
Held: The Supreme Court stated that since the words used in Article 20(3) were “to be a witness” and not “to appear as a witness”, the protection is extended to compelled evidence obtained outside the Courtroom, no compulsion no violation.
Is the polygraph, narcoanalysis or brain-mapping admissible?
In the landmark case of ‘Selvi & Ors vs State of Karnataka & Anr’ (2010), several questions regarding the legality or validity of the polygraph test were answered.
It was held in this case that usually, it is not admissible in a court of law. Narco analysis test, polygraph test & brain mapping cannot be considered a confession, but any information subsequently discovered with the help of such a consented test taken by the accused can be admitted as corroborative evidence.
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For example: if an accused reveals the place of a murder weapon in the course of the polygraph test, and police later find the weapon at that place, then the statement of the accused will not be evidence, but the weapon will be evidence.
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Therefore, the Bench in this case, took into consideration international norms on human rights, the right to a fair trial, and the right against self-incrimination under Article 20(3) of the Indian Constitution, as it is feared that a false confession could waste time when a case needs to be solved quickly.
Can these tests be administered to anyone?
Some conditions need to be fulfilled to administer this test to anyone. In Selvi’s case itself, the SC Bench comprising then Chief Justice of India K G Balakrishnan and Justices R V Raveendran and J M Panchal held that no lie detector tests should be administered “except based on the consent of the accused”.
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Persons who volunteer for the test must have access to a lawyer and know the test's physical, emotional, and legal implications as explained to them by police and the lawyer.
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The Bench also stated that the ‘Guidelines for the Administration of Polygraph Test on an Accused’ published by the National Human Rights Commission in 2000, must be strictly followed.
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The person’s consent must be recorded before a judicial magistrate.
Conclusion
Our present criminal justice system keeps individual liberty and freedom at the apex, thereby weakening it as the revolutionary tools used by forensic science to decode the truth has no validity or admissibility in the court of law except under certain circumstances. On one side, this provides a safe passage to the criminals, walking out free of charges in serious crimes; on the other, it safeguards the freedom & right to privacy under Articles 14, 19 & 21 of the Indian Constitution. Narco-analysis tests may improve the quality of criminal justice by strengthening the evidence system, but they can also be unethical. Hence, every person is innocent until proven guilty, and the same aspect must be kept in mind while performing a criminal investigation.