Saji Koduvath.

Introduction.

Polygraph (Lie Detector Test), Narco Analysis and Brain Mapping are tests used in Criminal Investigation. The investigation teams are not free to use it, as they think proper. It is so made clear in the Guidelines promulgated by the National Human Rights Commission, and in the Supreme Court decision in Selvi v. State of Karnataka, (2010) 7 SCC 263.

Guidelines of National Human Rights Commission, in 2000

The National Human Rights Commission laid down the Guidelines in 2000, for using Polygraph Test (Lie Detector Test) on the accused. It is made under Article 21 of the Constitution. Article 21 safeguards the rights of every person against cruel, inhuman or degrading treatment by any State-agency. These mandatory guiding principles read as under:

• “(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.
• (viii) A full medical and factual narration of the manner of the information received must be taken on record.”

Smt. Selvi  v. State of Karnataka, (2010) 7 SCC 263

The Supreme Court has made it clear in Selvi v. State of Karnataka, (2010) 7 SCC 263 that these guidelines issued by the National Human Rights Commission, in 2000, pertained to Polygraph Test (Lie Detector Test), should be strictly adhered to. That is, if the accused objects such Tests, they cannot be forcibly administered. By virtue of the Supreme Court decision, similar safeguards should be adopted for conducting ‘Narco-Analysis Technique’ and the ‘Brain Electrical Activation Profile test’, also.

The Apex Court held that the forcible methods of carrying out Narco Analysis Test or Polygraph Test by the police are destructive of accused’s non-derogable rights against self-incrimination and personal liberty. It was held that this right against the self-incrimination was available even at the stage of investigation. In Smt. Selvi v. State of Karnataka, (2010) 7 SCC 263,  the Apex Court observed as under:

• “263. 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 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 the dilution of constitutional rights such as the “right against self-incrimination”.
• 264. 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 Supreme Court summarised its decision as under:

“VERY IMPORTANT POINTS

• 1.            No individual should be forcibly subjected to any of the scientific techniques, Narcoanalysis, Polygraph Examination and Brain Electrical Activation Profile (BEAP) test whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.
• 2.            Scientific techniques such as narcoanalysis, polygraph examination and Brain Electrical Activation Profile (BEAP) test 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.
• 3.            Placing reliance on the results gathered from scientific techniques such as narcoanalysis, polygraph examination and Brain Electrical Activation Profile (BEAP) test comes into conflict with the ‘right to fair trial’.
• 4.            It is a settled principle that a statement obtained through coercion, threat or inducement is involuntary and hence inadmissible as evidence during trial , 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).
• 5.            Results obtained through involuntary administration of any of the scientific tests namely narcoanalysis technique, polygraph examination and the BEAP test come within the scope of ‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).
• 6.            Compulsory administration of any of the scientific tests namely narcoanalysis technique, polygraph examination and BEAP test constitutes ‘cruel, inhuman or degrading treatment’ in the context of Article 21.”

(This judgment, Smt. Selvi v. State of Karnataka, is referred to in:

• Ajit Mohan Vs. Legislative Assembly, NCT of Delhi, 2021-8 SCALE 8;
• Tofan Singh Vs. State of Tamil Nadu, AIR 2020 SC 5592;
• Ashish Jain Vs. Makrand Singh, 2019-1 JT 342;
• Rajendra Pralhadrao Wasnik Vs. State of Maharashtra, 2018-12 JT 189  
• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.)