We live in a society where the needs of the people are drastically changing with time. One of those fields which have shown drastic effects on the growth and development of society is technology. Nowadays, we all are living in a society that is at the fingertips of the individual. If we want anything from food to clothes, just one click and the same is delivered at home. Though, our study is concerned with technological advancements and the criminal justice system. There is some test like Narco Analysis Test, Polygraph Test and Brain Mapping which is used on the accused of getting relevant information. These scientific techniques have been used for various purposes but our study is confined to the criminal justice system. This medical advancement gives impugned the right to the investigating authorities to get information from the accused. As all things have advantages and disadvantages. These techniques too have disadvantages where lots of question arises as to ‘Fundamental Rights’ and about ‘Self Incrimination’. In this article, the main focus is on the ‘Polygraph Test’.
Introduction:
A Polygraph Test commonly known as Lie-Detector Test is a device which measures the psychological indicators such as blood pressure, pulse, respiration, breathing rhythms, and skin conductivity while a person is asked to answer a series of question. In India, this test has been used for interrogating the accused, suspects, witnesses, or any other person who supposes to tell truth. This test has social, psychological, and legal significance.
The tests such as the Polygraph test, Narco Analysis, and Brain Mapping used by the investigating agency to discover the truth. However, the information received from these tests cannot be used as evidence in court. But it is a better way of extracting information as compared to Third-degree methods. But these tests raise the question concerning its constitutional validity as it is violative of Article 20(3) and Article 21 which we will discuss further in this article.
History of Polygraph Test
The first polygraph was created in 1921 when a California-based policeman and physiologist John A. Larson invented an instrument that measures blood pressure, heart rate, and respiration to detect the deception.[1]
The polygraph test was first used in the year 1923 with the legal contact when Marston admitted the result of the polygraph test as evidence in the court.[2] The court rejected the results as evidence.
To decide whether these Deception Detection Tests would have evidentiary value or not, we would first have to look into the impact and problems faced during conducting the test.
How Polygraph Test has been conducted?
This test is mainly based on the psychological responses which were detected by the blood pressure, breathing rhythms, pulse, respiration, and skin conductivity. If a person is lying to the question which was asked by the examiner, it was observed that the body will generate different responses than the normal course which is detected by the examiner with the instrument stick to record the responses.
What are the problems faced during Polygraph Test?
Several problems could arise during the Polygraph Test.
- The measures of psychological factors would arouse not because of deception but could arouse due to fear, anxiety, hypertension, etc.
- The changes in psychological factors would also depend upon the condition of the examination room which brings falsification in the report made by the examiner.
- If a person is in depression, not in a stable condition, it would also affect those psychological factors.
- Sometimes the respondent may give manipulative responses to the examiner that would create confusion for the examiner between manipulative and genuine responses.
So these are some of the drawbacks which would arise while conducting the test.
Legal Aspects to Polygraph Test
The question regarding the constitutional validity of the test has been answered by the apex court in the landmark judgment.[3] The case arise question regarding the constitutional validity of this test concerning Article 21 of the Indian Constitution and the question of Self-Incrimination for Article 20(3). Let us first look into these aspects before going to the case analysis.
Privacy (Article 21)
The Indian Constitution did not expressively define the term privacy but is inclined under Article 21 which guarantees the right to life and liberty. The right to life and liberty is considered as the umbrella provision under Part III of Fundamental Rights of the Indian Constitution.
For Polygraph Test, the involuntary act of investigating authority to conduct the test violates the Right to Privacy of an individual.
The concept of Privacy first came into existence in the case Kharak Singh v State of UP[4], where the petitioner has challenged the constitutionality of certain police regulations which allowed the police to visit the house of an individual having criminal records. The petitioner has challenged on the ground that it violates the Right to Privacy.
A few years later, in the case of Govind v State of Madhya Pradesh[5], where the 3 bench judges held the status of the Right to Privacy as fundamental rights.
In the case which we are going to discuss regarding the polygraph test, that is, Selvi v State of Karnataka[6], the search and seizure by police authority can curtail the right of privacy of the citizen.
Self Incrimination (Article 20(3))
Clause 3 of Article 20 declares that no person accused of an offense be a witness against himself. This privilege is only available to the person against whom the actual accusation for the commission of an offense has been leveled which results in prosecution. This Deception Detection Test violates Article 20(3).
In our case analysis of Selvi v State of Karnataka, the Apex Court invoked the term “Consent”. It is important to take the consent of the accused to conduct the test for investigation. If the test is conducted without consent, then it will violate Article 21 and Article 20(3) of the Indian Constitution.
The protection under Article 20(3) does not apply to the case where a confession has been made by the accused.[7]
Case: Selvi vs State of Karnataka
Facts:
This case is a landmark judgment involving three bench judges headed by K.G. Balakrishnan in 2010. In 2004, Smt. Selvi and others filed a criminal appeal followed by subsequent appeals in the year 2005, 2006, 2007, and 2010 which were taken up together by the Supreme Court by Special Leave Petition.
The main focus of the case is how the accused, suspects, and witnesses were subjected to this deception detective test even without their consent. This was the main question raised by this case which proved to be a landmark judgment.
Issues:
Now let us understand what the question of law involved in the case was.
- The first question is regarding whether the test used to collect information will be constitutionally valid or not.
- Whether the test violated the fundamental rights under Article 20(3) (Right of Self Incrimination).
- Whether it is an unjustified intrusion into the privacy of an individual under article 21.
Judgment:
The three-judge bench consisting of Chief justice of India, K.G. Balakrishnan, J. RV Raveendran, and J. JM Panchal held that ‘involuntary administration of the impugned techniques violates the ‘right against self-incrimination’.[8][8]
In simple words, the test conducted by the investigation authority cannot be conducted without the consent of the person.
To simplify it, Consent means taking permission of the person. As stated earlier if these tests are conducted without the consent of the accused, suspect, or witnesses, then it will be ultra vires to the Indian Constitution as it violates the fundamental rights enshrined under the Constitution.
- Article 20(3): As the right of Self Incrimination states that no person can be compelled to be a witness for him. As this scientific technique involves certain instruments and chemicals which would detect the lie and hence the investigation can be fastened. Though, this will be an effective technique as it saves time to collect the correct information. But considering the fact, that the information is obtained through coercion and not by the free will of the person accused, and then this will be a violation of Article 20(3).
- Article 21: The concept of Privacy is still new in India and found its place under Article 21. The modern technique puts a restriction on the personal liberty of the individual in various ways.
Firstly, by confining the individual for conducting the test that too without his consent. Secondly, by putting drugs and chemicals into him to make discover the truth. This will be a restriction on the mental privacy of the individual. - Violative of Basic Human Rights: The court also highlighted the guidelines that are laid down by the National Human Rights Commission for the administration of the polygraph test on the accused. The court held that these guidelines should be strictly adhered to for all kinds of such techniques.
Summary:
To summarize the case, No lie detector should be administered without the consent of the accused. If the accused gave his consent to the test, the implications of the test should be explained to the accused by the police and the lawyer. The consent of the accused should be recorded in the presence of the judiciary. The recording of the Lie detector must be performed by the independent agency (Hospitals) in front of the lawyer. It should be clear that the statement recorded through this test is not ‘confession’. Thus the practice of polygraph test, apart from this Narconalysis test, Brain Mapping, FMRI is held to be void and unconstitutional.
Conclusion
A decision is always subject to criticism as there is always scope for improvement. The same applies to this case. This case is a perfect example of a neutral decision where even the critics find it difficult to find loopholes in the judgment. We know that the accused is innocent until he is proven guilty. Based on this principle, the bench has taken all the aspects of the case very carefully and answered every legal question. However, the case left some questions unanswered regarding the legality and illegality of the lie detector test. They have given a narrow approach to the scenario. The decision of the Apex Court was based on humanitarian grounds and is subject to Human Rights as well.
References:
[1] John Synnott, David Dietzel, Maria Ioannou : A review of the polygraph: history, methodology and current status 2015
[2] Refer United States v Frye 293 F. 1013 (D.C. Cir. 1923)
[3] Selvi v State of Karnataka A.I.R 2010 S.C. 1974
[4] Kharak Singh v State of UP 1964 SC 332
[5] Govind v State of Madhya Pradesh AIR 1975 SC 1378
[6] Supra 3
[7] Kalawati v State of H.P. AIR 1989 HP 5
[8] The Right to remain Silent: A case Commentary on Smt. Selvi v State of Karnataka, Gazala Parveen 2019 https://blog.ipleaders.in/right-remain-silent-case-commentary-smt-selvi-v-state-karnataka/#_ednref12
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