Rajiv Gandhi National University of Law

Criminal Justice and Fundamental Rights Project

(Group-14)

Topic: Evidentiary Value of Narco Analysis and Brain Mapping in India: with
reference to Smt. Selvi and Ors. V. State of Karnatka

Sub-Topic: USE OF MODERN SCIENTIFIC TESTS IN INVESTIGATION AND

EVIDENCE: MERE DESPERATION OR JUSTIFIABLE IN PUBLIC INTEREST?
(HEINONLINE)

Submitted by: Submitted to:

Bhava Sharma Professor Ivneet Walia
17108 Asst. Professor of Law

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 Acknowledgement

I would like to express my gratitude towards Ivneet Walia Ma’am who assigned me
the project.

Bhava Sharma
17108

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 Certification

This is to certify that Bhava Sharma bearing roll no.17108 of B.A LLB fourth year
has completed this project under the guidance of Mrs. Ivneet Walia. The due sources
of have been acknowledged.

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 Table of Contents

Serial No. Title Page No.

1. Project Cover 1

2. “Acknowledgement” 2

3. Certificate 3

4. Table 4

5. Abstract 5-6

Article Critique 7-14

1. Comparison between US and India: Justification 8-9

of Polygraph, Brain-mapping and Narco-analysis
2. Constitutional Aspect
3. Evidentiary Value: Exculpatory or Inculpatory
4. Conclusion

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 Abstract

The advent of scientific measures and automation has revolutionized the human lives.
The growing notion is that of shedding the old norms, values and archetypes that may
lead you to be called the traditionalists which has become a term that has a negative
connotation to it and in the same race of leaping towards the future, we have the
convenience of modern scientific tools such as polygraphs , narco-analysis that reach
near the utopian idea of going towards a transparent society where crime cannot go
either undetected or unpunished.

This may seem like a choice that requires no consideration but the advancement
always has to come at the cost of replacement of an existing system or compromise of
the same values. The author in this Article has elaborately put forth the idea of how
the judicial application in the cases of narco-analysis have not been short-sighted but
also in violation of the fundamental rights, the crux of the argument lies not in invalid
consideration of law but incomplete consideration of the law.

The paper is divided into five parts which elaborate on its application in judicial and
investigative stages, by way of experts in evidence stage in probative manner in
comparison to United States Judiciary and in manner of confessions and it goes on
elaborate on the constitutional perspective and vis-à-vis the right to privacy, health
and right against self-incrimination.

The paper presents an analytical as well as critical approach on various facets on the
evolution of the investigative methods.

The analysis of this article has yielded an innovative and interesting inquisition into
the modern scientific techniques along with an unbiased approach towards all the
investigative methods and classifying them on various parameters of approach
towards the accused, the proportion of violation of individuals self of body and mind
along with the necessity to protect its sanctity.

Thus, in brief, the cardinal vein of this presentation is to explain the issues which
arise in juxtaposition and relation to analysing the constitutionality of the tests in

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relation to legal provisions on criminal procedure,the law of evidence and the
Constitution of India along with the American perspective.

The article has taken an compartmentalised approach to provide the reader with a
detailed informative analysis of the nuances related to the medical science of such
investigative methods and appreciated the same from the lens of exactness of the
medical science and its credibility along with distinguishing its perception from the
medical field to the judicial field as it remains pertinent that any scientific
investigative method only ne adopted by judiciary once it has been established in its
respective medical field and Section 45 has also been analysed from the view of its
scope in the evidence being established as corroborative.

The author presents conclusion with regard to the current positions of law and his
suggestions for reference with regards to a better position such as the incriminatory
statements made by accused that lead to evidence flowing from the incriminatory
statements to be in incriminatory in nature then they ought to be excluded form
evidence and only evidence that prove facts against the accused should be included in
the evidence.

The article presents an inquisition on the broad scope of protection afforded by

Article 20 (3) transformed by Kathu Kalu Oghad Case and its ramifications. Thus, the
paper is an excellent repository of judicial approach to modern scientific investigative
methods.

Key Words: Section 45 Indian Evidence Act, Kathu Kalu Oghad Case, Article 20(3),
Narco-Analysis, Medical Science.

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 ARTICLE CRITIQUE

The Article in its title presupposes a question rather than a heading which is generally
informative in nature but the intent of the author as inferred from the such setting sets
the inquisitive mind to work.

The paper is aptly titled, “ Use of Modern Scientific Tests in Investigation and
Evidence: mere desperation or justifiable in public interest ?”.

The article in its nature is analytical ,precedentially descriptive and holistic in its
approach with regards to acceptance of the shortcomings in realm of suggestions and
research. The author initially starts with introduction of scientific techniques that are
to be analysed in the paper.

The author provides with a brief information about the methodology and application
of techniques like the Lie detector and polygraph, brain-mapping and Narco-
Analysis. The author balances the justification of use of such methods in balancing it
with a scale of public outcry of pragmatic necessity on the other hand.

The author tries to present a neutral view however the bias is visible when examples
are cited in cases of Telgi and Aarushi murder case wherein the author asserts that in
light of courts decisions these test should be voluntary however the inherent nature of
these tests is such that they are coercive by their very nature.

However, there needs to be added caution to the text as the paper was published
before the Supreme Court judgment in Selvi v. St. of Karnataka and many logical
points in this paper which were enumerated were also subsequently cited by the apex
court when it rendered the practise of narcoanalysis, brain mapping,
FMRI and polygraph test  to be unconstitutional and void.

The judges held that,

“The compulsory administration of the impugned techniques violates the right against
self-incrimination. The test results cannot be admitted in evidence if they have been
obtained through the use of compulsion. Article 20 (3) of the Constitution [No person
accused of any offence shall be compelled to be a witness against himself] protects an

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individual’s choice between speaking and remaining silent, irrespective of whether
the subsequent testimony proves to be inculpatory or exculpatory.” 1
The Bench held,
“Article 20 (3) aims to prevent the forcible conveyance of personal knowledge that is
relevant to the facts in issue. The results obtained from each of the impugned tests
bear a testimonial character and they cannot be categorised as material evidence.”
Further it was notified in the judgement that “In their considered opinion that
subjecting a person to the impugned techniques in an involuntary manner violates the
prescribed boundaries of privacy.” 2

The Bench held that if these techniques were used compulsorily if would violate
Article 20 (3).  The Bench made it clear that even when the subject had given consent
to undergo any of these tests, the test results by themselves could not 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.”3

However, before the supreme court judgment the self-incriminatory statements or

evidence /inculpatory evidence were to be excluded but discovery of a fact could be
included and the author suggested that the entire chain of investigation needs to refute
the evidence that was not inculpatory in nature as the genus was self-incriminatory
and coercive in nature, Thus the thinking of the author before the apex courts
judgment highlight sound legal justification as the supreme court as held in Selvi
clearly laid down to exclude such evidence as material to the case.

1. Comparison between US and India: Justification of Polygraph, Brain-

mapping and Narco-analysis

The author goes to classify his research into the following categories:

1
Selvi and Ors. v. State of Karnataka, A.I.R 2010 S.C. 1974.
2
Ibid.
3
Supra 1.

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 a. Expert evidence and criteria for appreciation
b. Accuracy of polygraph test
c. US judiciary on polygraph
d. Accuracy of brain mapping
e. US brain mapping
f. Acceptability of Narco-Analysis in United States
g. Admissions and confessions

The author clarifies the evidentiary value of expert opinion under Indian Evidence act
and hold that they are to make statements to the exactness of the science and can only
be held corroborative in nature and not complete to secure a conviction on the sole
basis of expert statements.

The author also raised the distinction of its perception amongst the medical
community and judicial community and asserted that it is in nascent stage in opinion
of credence of the medical community and needed further evolution.

The aspersion is cast on the credibility of polygraph tests on which author relies on a
1997 study that concluded its efficacy at being 61%.4The major criticism of polygraph
follows from two areas:
 The construction and administration of the test is not standardized.
 The interpretation of polygraph test also suffers from inadequecies.

The US Courts have historically exercised great caution when dealing with reports of
the polygraph test.

Supreme Court case of United States v. Scheffer, it was stated that, "There is simply

no consensus that polygraph evidence is reliable," and that, "[u]nlike other expert
witnesses who testify about factual matters outside the jurors' knowledge, such as the
analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert
can supply the jury only with another opinion."

4
Vergano, Dan, Telling The Truth About Lie Detectors, USA TODAY (2002) available at http:/
/www.usatoday.com/news/nation/2002-09-09-lie_x.htm.

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 In 2005, the 11th Circuit Court of Appeals stated that "polygraphy did not enjoy
general acceptance from the scientific community".

Thus, polygraph is still some distance from being the acceptable criminal
investigation tool in the US.

2. Constitutional Aspect

The constitutional aspect has been broadly divided into three aspects namely:
 Right against Self incrimination (Article 20(3))
 Right to Privacy
 Right to health

The position on self incrimination has been settled by the apex court in Selci case in
2010 and it was held to be violative of privacy if administered forcibly and was
clearly held invalid on the same grounds.Privacy has again been elaborately discussd
by courts in KS puttaswamy judgment in which it was held vital to Article 21 .Thus a
person under these tests loses autonomous control of his body and that can lead to
coercion and falsity rendering the entire trial as merely farcical.

The author has also suggested that qiute beautifully that any health impact arising
from these tests need to be materialized and compensated by the state.this suggestion
still hold true in cases of voluntary administration where there may arise such
cases.These need to be put in substantive. Form in from of guidelines howener now
the NHRC guidelins are to be followed when administering such tests.

3. Evidentiary Value: Exculpatory or Inculpatory

The differentiation among inculpatory and exculpatory evidence.

If the evidence is put together during investigation then it is applicable for magistrate
to decide the permissibility of the evidence however in view of selvi inculpatory has
to necessarily be excluded and inculpatory for exoneration to be included.

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The court held challenging the validity of the test at this stage as premature since
when statement has not been made it cannot be ascertained if it will be exoneratory or
incriminatory in nature.

The accused always has the choice to answer or remain silent.Thus,the statements
have been granted an exception to be included in the trial based on the nature of such
statements and application of the judicial mind.

The exclusionary rule in evidence law commands that if inculpatory evidence has
been accumulated through inappropriate techniques (including coercion, threat or
inducement among others) at that point the equivalent ought to be rejected from the
trial, while there is no such denial on the thought of exculpatory evidence.

Nonetheless, qualification or distinction between the treatment of inculpatory and

exculpatory evidence is made reflectively at the trial stage. It should not be stretched
out back to the phase of investigation.

If somehow it so happened to allow admission of an explanation on the ground that

posing an inquiry it isn't known whether the appropriate response will be inculpatory
or exculpatory, the 'directly against self-incrimination' will be delivered unimportant.

Law gives on 'any individual' who is inspected during an investigation, a powerful

decision among talking and staying silent. This infers that it is for the individual being
analyzed to choose whether the response to a specific inquiry will in the long run end
up being inculpatory or exculpatory. Moreover, almost certainly, the data or materials
gathered at a previous phase of investigation can end up being inculpatory at the
appointed time.

There are a few manners by which the automatic organization of both of the
denounced tests could be seen as a restriction on 'individual freedom'.

The clear pointer of limitation is the utilization of actual power to guarantee that a
reluctant individual is restricted to the area of power wherein scientific tests are
supposed to be directed.
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Moreover, medication incited disclosures of considerable deductions deduced from
estimation from various levels of physiological/physical reactions to the test and can
be depicted as an interruption into the subject's psychological privacy.

It’s likewise very possible for an individual may offer implicating expression when
he forced to face a demand or request in garb of a threat to his integrity with the
imminent organization of scientific test procedures. Alternately, an individual who
has been persuasively exposed to these procedures could be gone up against with the
outcomes in an ensuing cross examination, in this way evoking implicating
proclamations.

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 4. CONCLUSION

Most of the judgment in Selvi case was given by K.G. Balakrishnan C.J.I, gives
colossal accentuation to Article 20(3) of the constitution managing the part of self-
implication.

In any case, the minority angle for example Protection and fair treatment has not
appeared to have been given as significant a situation in this entire judgment in spite
of the fact that it shapes a vital and significant piece of it.

The quest for compelling guides to cross examination is presumably as old as man in
itself and for it shall acquire data from an unwilling source, steady as his anxiety to
easy route in a convoluted way. In the chronicles of police examination, actual
compulsion; on occasion; fill in meticulous and tedious request in the conviction that
immediate techniques produce speedy outcomes.

The field of criminology has extended quickly during the most recent couple of years,
and the interest for supplemental techniques for identifying trickiness and improving
the productivity of cross examination have expanded associatively.

Anyway the minority viewpoint covers essential components of defendability like

security and fair treatment and from the judgment we locate that lesser accentuation
has been laid on these angles.

The creator will in general concur and assent upon both the conflicts and the way
taken to arrive at the reasoning anyway somewhat more accentuation of protection in
the judgment would have been truly useful in adjusting the explanation.

The explanation being the understanding of 20(3) has been over and over been tested
by a few high court. The subsequent explanation being that the grounds of protection
gets set up for this situation past sensible uncertainty. The judgment at its underlying
stage had covered how every one of these test abuse the standards of Privacy. Yet, in
the end gets redirected towards self-implication.

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