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Raj Kumar Makkad (Adv P & H High Court Chandigarh)     06 May 2010

BLOW TO INVESTIGATORS

The Supreme Court ruling declaring the use of narco-analysis, brain mapping and polygraph tests — unless consent is secured from the person being subjected to them — as 'illegal' and 'un-constitutional' comes as a big blow to investigative agencies. The apex court has determined that the use of these scientific techniques is in contravention of Article 20(3) of the Constitution which says that no person accused of any offence shall be compelled to be a witness against himself or herself. This newspaper believes the Supreme Court has, in this instance, erred in its narrow interpretation of a constitutional provision and in the application of moral principles of an individual's right to privacy. India is not a police state and narco-analysis, brain mapping or polygraph tests are not conducted at random on anybody and everybody, or to browbeat critics and opponents of the Government into submission. There are proper procedures in place to ensure that these techniques are not misused. Besides, narco-analysis, brain mapping and polygraph tests are resorted to by the police when they hit a wall while investigating serious crimes such as murder, financial fraud and terrorism to achieve a breakthrough that can, in turn, be used for gathering corroborative evidence. The results of these tests by themselves do not constitute evidence. In other words, they are useful for investigators in cases where hard or circumstantial evidence is virtually impossible to come by despite best efforts. For example, a person suspected to have plotted or aided a terrorist attack may have covered up his tracks. Or a fraudster may have taken care not to leave a paper trail. Or, as in the infamous murder of Arushi, the killer may have destroyed all evidence. In such cases, investigators do require means like narco-analysis, brain mapping and polygraph tests for a vital clue or to simply determine if the person suspected to have committed the crime is, in reality, innocent. We live in troubled times and in an imperfect world. Utopian values rooted in constitutionalism are desirable, but for that we must wait for a while. In any event, busting crime is a messy affair around the world; there is nothing unique about India.


Rights activists opposed to narco-analysis, brain mapping and polygraph tests absurdly claim that these scientific investigative techniques amount to obtaining confession through torture. This is absolutely untrue. Putting a suspect through what is commonly referred to as a 'lie detection' test is not the same as water boarding and similar methods that are used for extracting confession under duress. Custodial torture is abhorrent and has no place in a civilised, democratic country. But surely supervised, benign scientific lie detection tests do not qualify as custodial torture? As for an individual's right not to give evidence against himself or herself is concerned, taken to an extreme it could lead to a situation where men — and women — could disown paternity and paternal responsibility through the expedient means of refusing to undergo a DNA test. Would that be in order? More importantly, would the courts uphold the right of an individual to refuse to undergo a DNA test? Absolutism does not necessarily contribute to a better society.

 



Learning

 7 Replies

Daksh (Student)     07 May 2010

Raj,

This newspaper believes the Supreme Court has, in this instance, erred in its narrow interpretation of a constitutional provision and in the application of moral principles of an individual's right to privacy. India is not a police state and narco-analysis, brain mapping or polygraph tests are not conducted at random on anybody and everybody, or to browbeat critics and opponents of the Government into submission.

That's why on each occasion I question the objective of this "CUT AND PASTE SYNDROME - AND ALWAYS YOU KEEP QUIET - MEANING THEREBY !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!?????????????????????????????

To me you deserve a deduction of at least 99,999 points deduction and undertaking to the effect ___________________________

Regards

Daksh

sreenath cochin (advocate)     08 May 2010

i oppose supreme court judgement.even though it is against right to privacy...in order to bring out the truth,we must use techniques like this

1 Like

S.Sabarinadh (Student)     13 May 2010

In the corse of History Supreme court have given many ill concievable decisions and BLOWS for many of the agencies and this is one of the same............................

1 Like

Rajan Salvi (Lawyer)     25 May 2010

Imagine a situation when all the family members of the persons supporting the judgment are sitting in a train in which a bomb is planted. A co conspirator is caught but he does not disclose the location of the bomb inspite of third degree also. Time is less. What would the persons support , Article 20(3) or the test? Police force is busy in bandobast duties , lacks experts who can deal in non invasive interrogators. Only 14 days custody is given to interrogate, every police officer handles 12-15 cases at a time. Basic qualification for being a police officer is graduate in any discipline, and to top it all reservation of posts assuring that the best talent is not always recruited. Also consider interstate crimes, pressure of press/superiors.  Judgment is silent on the aspect as to how to deliver justice without delay to the aggrieved persons. What about them?  Personal liberty ought to have been sacrificed on the ground ... greatest good of greatest number. Why be sensitive if an accused feels pain on pricking of a surgical needle with complete disregard to the person who has been slashed/killed.

Rajan Salvi (Lawyer)     25 May 2010

Read Marx... read between the lines.... Judgment protects politicians and the filthy rich who have much to hide.  Behind every fortune - there is a skeleton.

Justice for all (Legal)     27 May 2010

We must understand the context in which the Supreme court gave the verdict. Apart from being a violation of "mental privacy" of an accused [Art 20(3) r/w Sec 161(2)--"Right to Silence"], these TESTS had become an easy way out for the investigators, who did not go for proper investigation, thereby compromising on crucial "on-spot evidence". Investigators simply went for narco etc. at the first instance, whereas it should have been the at the last stage of investigation only for the purpose of corroborating the investigators on their direction of investigation.  Interestingly, if an accused is an abuser of drugs, then such tests will have no effect on him.  Also a wrong dose can send him in coma or even death. Moreover, such tests are banned in developed countries, where stress is on collection & presentation of "Hard-evidence" & not merely on self-incrimination evidences.

Rajan Salvi (Lawyer)     28 June 2010

Even if a person gave false information under the influence of the drug, it could be disregarded... but what about the disclosure following which there is recovery of incriminating articles/things/cash etc... ?


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