Narco Tests - Supreme Court Falls Short

NARCO TESTS – SUPREME COURT FALLS SHORT
RAJEEV DHAVAN


In the last days of the reign of Chief Justice Balakrishnan, the Supreme Court delivered a number of significant judgments including on Governor’s tenure, Khusbhu’s free speech, Reliance, the tribunal system, the validity of the panchayat amendments and, of course, the use of Narco tests. The Narco judgment of 5 May 2010 took over two years; and is painful to read because of its cut and paste abstractions from lower American courts. A jurisprudence based on imitating cosmopolitanism seems to continue to mesmerize Indian courts with neo-colonial insistence.

The narco test became legally controversial. It was upheld by the Bombay and Madras High Courts in the Dalmia and Telgi cases. Police all over used Narco tests in the Bombay Train blasts, the Nithari and Arushi (Delhi), Beer serial killer (Mumbai), Suhrid Dutta and Bauria (Kolkata), and the Sister Abhaya cases – all lurid tragedies excited into the public domain. It has been used against gangs (Bongaon case of an alleged ISI agent) and terrorists (Malegaon bomb blasts). On 3rd May 2010, a Rajasthan court permitted narco tests against Devendra Gupta, accused in the Ajmer Blast case. This was one day before the Supreme Court judgment which unconstitutionalized the narco test. The Delhi High Court, in the Maoist Kobad Ghandy case, preferred to wait for the Supreme Court to decide the Narco case. In other words, legal chaos reigned.

But, the above examples also indicate that in dramatic, high-profile cases where the police are under pressure to show immediate results, narco is used to portray guilt to satisfy the public’s thirst for news, revenge and populist justice. ‘Guilt by narco’ rends the air before the trial has begun. There is little sympathy for murderers, serial killers, terrorists and bomb-arsonists – even if falsely accused. Narco plays to the gallery. The second cousin of the Narco test is the lie-detector.

The problems with Narco are two fold: (i) the first is whether these tests are credible and reliable; (ii) the second is whether such invasive tests are a violation of life and liberty, in that they invade a person’s body and being contrary to article 21 of the constitution; and, the protection of every accused not to be made a witness against himself (article 20(3) of the constitution).

The various lie detector tests have been used for criminal investigation, espionage, employee screening and so on. These tests show the manner in which the body shows signs of physiological anxiety through sweating, pulse rate and the like when subject to interrogation. In other words, if you sweat and the body seems anxious, you are a liar. The ‘cool’ criminal will pass this test with aplomb. Research throughout the world – especially reports from US (2003) and UK (2004) – show the test to be unreliable. Even criminals churlishly say, “Give us a lie detector to prove our innocence”. Indeed, in an American case, it is the accused who wanted a lie detector test to prove his innocence. The Supreme Courts of the US in Scheffer (1998) and Canada in Beland (1987) found these tests to be unreliable. In fact, the use of the lie detector test is a cruel joke that plays to the public imagination as truth, when it is nothing of the sort.

The second and third tests are the narco analysis and brain mapping. Both are invasive and plant things into a person to loosen their minds to make a confession or make their brain render evidence against them. In Narco, a truth serum (like scopolamine) induces a hypnotic trance and, allegedly the truth pours out from the inner consciousness. We need not go through Balakrishnan CJ’s super reliance on American lower courts; or examine the retrograde US Supreme Court judgment in the Arkansas case (1987) which held that hypnotically-refreshed testimony is admissible. What weight do we attach to this jungle of US cases? Brain mapping is no less invasive. It relies on ‘P300 Waves test’ to show ‘event-related brain potential (ERP)’. Just because we give acronyms and numbers for tests to disguise their inadequacy, the speculations of neurology, injections and probes cannot reify such prodding into scientific objectivity – even if a future ‘Brave New World’ may be induced to think otherwise.

But beyond reliability, lies the question of ‘forced incrimination against oneself’ forbidden by our Constitution. Cases have to be proved by facts, not induced confessions. In 1954, India’s Supreme Court gave broad protection against self-incrimination. An eleven judge bench in Oghad’s case (1961) permitted handwriting, signature and finger-hand impressions as not being examples of self-incrimination. This was extended to urine and blood samples. Even if giving a blood sample is physically invasive, it was permitted because it does not force confession but simply states a fact as to the blood type. Nor can we ignore Nandini Satpathy’s case (1978) that suspects are not accused – and both have a right to silence.

With all this behind them, the Supreme Court in the Narco case (2010) should not have taken over two years to deliberate and decide that lie detector, narco and brain mapping tests are invariably outlawed by India’s Constitution. But, the Supreme Court made a tragic mistake. Having outlawed involuntary tests, it decided that if a person wants to take these tests he can do so, under conditions of legal advice and magisterial supervision, without the confessional outcome being admissible. In criminal cases, even voluntary acceptance of these tests should not be permitted – especially if they cannot be admitted into evidence. What would be the point? This is India. People can be forced into voluntary confession. Police will force confessions under threat and the accused will have to pretend that it is voluntary. Having decided that narco and other tests are constitutionally invalid, the Court should have stopped both voluntary and involuntary tests. The wood was lost for the trees.

This is equally true of the NHRC’s guidelines followed here. I remember writing an opinion on this for NHRC, for the, then, Chairman Justice Venkatachaliah. The reason why guidelines were issued was because the NHRC could not invalidate these tests, and chose only to discipline them. But the Supreme Court is the highest constitutional authority. It has the power to invalidate unacceptable practices. People may say that consequentialism requires that individual rights shall give way to the public interest in tracking down dangerous crime. But ‘truth’ cannot be established by unreliable, evasive and invasive methods simply because a media fed public opinion thinks it represents the public interest, which, alas, must also include defending the possible innocence of an accused.

Lastly, there are civilization questions. Societies are known for the kind of proof they seek – both socially and for justice. Earlier, people walked over fire or were boiled in oil to prove their innocence. No less civilized is extraction by torture. Narco and other tests are barbarities of past, dressed up as science. Forensic investigation is permissible. Barbaric invasiveness is wrong – both if it is without consent or given voluntarily. The same science that brings many goodies, also, lends itself to inhuman nonsenses.