New Delhi, May 06: ‘An accused can’t be forced to be witness against himself’
The Supreme Court on Wednesday put an end to forced narco analysis, polygraph and brain mapping tests being conducted on suspects to elicit information during investigation. In a landmark judgment upholding civil liberties, a three-judge bench of Chief Justice K.G.
Balakrishnan, Justice R.V. Raveendran and Justice J.M. Panchal said conducting such tests violated the fundamental right against self-incrimination guaranteed to accused under Article 20(3) of the Constitution. “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,” Justice Balakrishnan, who wrote the judgment for the bench, said.
The court rejected the argument that such tests helped combat terrorist activities, insurgencies and organised crime and that such exigencies justified some intrusions into civil liberties. “Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the right against self-incrimination,” the court said.
The judgment is also likely to have an impact on pending cases in which the accused were subjected to such tests. The accused can question evidence gathered specifically on the basis of the revelations made during such tests.
Allowing a batch of appeals by accused facing such tests, the court said subjecting someone to such tests without consent also amounted to violation of the right to privacy and denial of a right to fair trial. Besides, it was cruel, inhuman and degrading to force such tests on a person.
“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,” the court said.
On the likelihood of hardened criminals benefiting from the judgment, the court said 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”.
Rejecting an argument that medical examination was allowed under the law, the court said such tests could not be read into the statutory provisions allowing medical examination of a suspect for using the reports as evidence for the commission of an offence.
Section 53 of the Code of Criminal Procedure ( CrPC) permits “ 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”. The court, however, pointed out that 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”. The bench rejected the argument that the tests were merely tools of investigation and the revelations during the tests were the same as statements made by accused before the police during investigations.
Distinguishing the two, the court pointed out that an accused had the right not to answer a question and his silence was not taken against him. In such tests, he had no option to remain silent.
The court also noted that scientifically, the tests were not foolproof and results could be misleading.
It further expressed concern over such procedures being leaked to and shown by the media.
The court, however, permitted the use of these scientific techniques if a person volunteered to undergo such tests in criminal cases, but only if NHRC guidelines were strictly followed.
Information or material discovered on the basis of the revelations could be admitted as evidence according to the provisions of the Evidence Act, the court said.
—Agencies