EDITORIAL IN THE HINDU
The criminal justice system is founded on a slew of jurisprudential principles that protect the rights of suspects and accused. These include the right against self-incrimination, the right to remain silent, and the right against providing information under physical or mental pressure. Despite this, invasive procedures such as narcoanalysis, brain-mapping, and polygraph tests have been routinely used by the police — and, shockingly, with the approval of the courts. In holding that the forcible use of these tests is unconstitutional, the Supreme Court of India has drawn attention to the inherent violence in such investigative procedures, which constitute a gross abuse of human rights. The landmark 251-page judgment arrives at two broad legal conclusions. First, such coercive testing violates Article 20 (3) of the Constitution, which stipulates “no person accused of an offence shall stand witness against himself.” Secondly, it is an infringement of the right to personal liberty as understood in the context of Article 21, in particular the right to privacy, the right to a free trial, and the right against cruel, inhuman or degrading treatment.
The court has made it clear that nobody can be compelled to undergo narcoanalysis, brain mapping, or lie detector tests and that any statements made during those procedures are not admissible as evidence. Such tests are permissible only when taken voluntarily. But even in such cases, they must be conducted in strict compliance with the National Human Rights Commission’s Guidelines for the Administration of the Polygraph Test — which includes safeguards such as the mandatory recording of consent before a magistrate and the conduct of all tests by an independent agency. Proponents of the three tests, including those who concede that they sometimes produce false results, advance pragmatic arguments for their retention. They claim that the tests are a softer alternative to third degree methods of interrogation, which might become further entrenched in their absence. They also argue that these tests can serve the public interest in extraordinary situations: they can help uncover terror plots and prevent devastating attacks. Interestingly, the Supreme Court has not dismissed such arguments out of hand. Instead, it has taken the high ground to hold that as a court of law, it can only seek to preserve the balance between the competing interests of personal liberty and public safety, as they are reflected in the Constitution. The judgment must be acclaimed as a major blow for democratic and human rights in the face of invasive procedures that violate the mind.