In a major setback to investigating agencies, the Supreme Court (SC) on Wednesday ruled compulsory brain mapping, narco-analysis and lie detector tests unconstitutional as they violate individual rights.
“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,” a bench of chief justice KG Balakrishnan, and justices RV Raveendran and JM Panchal said.
Information gained through the tests is already inadmissible in the country’s courts, but the SC ruling makes it clear that the police cannot use the tests or investigate any leads arising thereof unless suspects volunteer.
“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,” the bench said in a 251-page judgment.
The judges said relying on reports gathered from these techniques conflicts with the “right to fair trial”.
They held that compelling public interest cannot justify the dilution of constitutional rights such as the “right against self-incrimination”.
They said that as guardians of fundamental rights, they would be “failing in our duty” if any citizen is permitted to be forcibly subjected to the questionable tests.
The bench described such tests as a form of third degree torture, which could not be permitted to replace existing police behaviour. It discarded the pleas of the states and the Centre that the tests were justified means to tackle terrorism, a crime where investigating agencies are not armed with any tools to find out “ticking bombs”.
Disposing of petitions filed by accused in Maharashtra, Karnataka and Andhra Pradesh, the bench said the tests can be administered to a person only with consent and even then National Human Rights Commission guidelines must be adhered to. The person needs to be assisted by a lawyer, his consent needs to be recorded before a magistrate, and he needs to be told about the implications of his consent and the fact that the information thus collected would not be used against him as evidence in court. But information or material collected with the help of a (voluntary) test can be admitted in court under section 27 of the Evidence Act.
The bench refrained from categorically suggesting that the government could enact a law through Parliament to make the tests valid in compelling public interest and exceptional circumstances. But it said the argument merits consideration and it is “the task of legislature to arrive at a pragmatic balance between the often competing interests of personal liberty and public safety”.
Being the constitutional court, the SC can only “seek to preserve the balance between these competing interests and their interpretation’’, the bench said.
The bench expressed the SC’s dilemma in justifying the “use of torture or other improper means for eliciting information which could help in saving the lives of ordinary citizens”, but termed the government’s defence of making such means applicable to terror-related cases as “utilitarian considerations”.
The government reacted carefully to the judgment, with a senior attorney welcoming the verdict but saying “something extra is needed to deal with terrorists and militants”.
