Self Incrimination And DDT Tests
Author: LawSphereX
Category: General Law
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SELF INCRIMINATION AND DDT TESTS
Deeksha Sharma, LLM, Gujarat National Law University, Silvassa Campus
ABSTRACT
The right against incrimination is a right mentioned in our constitution under Article 20(3) which protects individuals from being compelled to testify against themselves but the advancement of technology has led to an interplay between the right against incrimination and the use of the Deceptive Detection Test (DDT) in Indian legal system. However, advancements in forensic science, including techniques like polygraph tests, narco-analysis, and brain mapping (P-300 tests), have introduced complex legal and ethical debates. These DDTs are employed by investigating agencies to extract concealed information, often aiding in discovering crucial evidence.
This paper deals with provisions surrounding DDT tests which include provisions under The Constitution of India, Code of Criminal Procedure1973, Bharatiya Nagrik Sukarsha Sanhita 2023, Indian Evidence Act 1872 and Bharatiya Sakhya Adhiniyam 2023. It includes interpretations of court in cases like State of Bombay v. Kathi Kalu Oghat, Nandini Satpathy v. P. L. Dani, and Dinesh Dalmia v. State of Madras, highlighting judicial perspectives on self-incrimination and the limits of DDTs and Selvi v State of Karnataka judgment where the supreme court established that these tests cannot be conducted on an accused without their consent. Furthermore, the paper discusses recent trends and case laws post-Selvi judgment that reveal inconsistencies in judicial applications.
Despite the clear mandate for consent given in the Selvi judgment, some courts have denied DDTs even when requested by the accused, citing concerns about voluntariness and admissibility. Criticism of DDTs includes concerns about their reliability, potential coercion, and infringement of individual rights, emphasizing the need for stringent safeguards. In conclusion, while these tests play a vital role in criminal investigations, their use must be in such a way that it balances fundamental rights. The current legal position clearly mandates that DDT should only be conducted with the accused’s consent. This paper calls for a clearer statutory framework to regulate DDTs and ensure that they are used ethically while upholding the principles of justice and fairness.
Keywords: self-incrimination, Deception Detection Tests (DDTs), Polygraph test, Narco-analysis, Brain mapping (P-300 test), Article 20(3) of the Constitution, Selvi v. State of Karnataka, Consent, Investigative procedures, Admissibility of evidence, Judicial interpretations Introduction Recently accused of the RG Kar Medical College rape case underwent a polygraph test. Such tests help the authorities during the investigation but cannot be used as a piece of evidence in a court of law. In this paper, we will discuss various DDT tests and different laws and interpretations relating to it with landmark judgment. The right against self-incrimination has been an integral part of fundamental rights provided to us by our constitution makers.
Indian laws provide some rights to the accused person to protect the accused from the arbitrary actions of the state authorities and ensure a free and fair trial. No one shall be compelled to be a witness against himself/ herself is a guiding principle behind Article 20(3). With the advancement of technology, deception detection tests (DDT) such as polygraphs, narco-analysis, and brain mapping have emerged as a useful tool during the process of investigation. DDT has been used widely by investigating agencies to extract out information during the investigation. So the question arises whether using these tests during the investigation to extract information from the accused person by investigating agencies would amount to a violation of Article 20(3) which was addressed by the court in Selvi Judgement.
Further, we will discuss the approach of different courts while allowing accused persons to go for DDT tests. Research objective The present research is carried out with a view- • To assess the role of consent in cases where DDT tests are conducted. • To analyze the role played by the Indian judiciary in this regard • To analyze how different courts apply this rule after Selvi's Judgement Research Question • Whether consent is necessary in every case while conducting DDT test? • What is the approach of various High Courts while allowing the accused to go for DDT tests after Selvi's Judgement?
Research Methodology
The study is based on primary and secondary sources. As far as primary sources are concerned, they include various laws and acts passed by the parliament of India, reports and surveys, and various judicial pronouncements. As secondary sources, existing literature and various articles are used. Also, the internet, books, e-sources, and working paper by research institutes are referred. What is DDT? DDT stands for Deception detection tests which include tests such as polygraph, narcoanalysis, and brain mapping. The Brain Mapping Test is also known as the P-300 test. In this test, the suspect is first interviewed and interrogated to find out whether he is concealing any information or not. The suspect is forced to sit in an evoked potential recording equipment while being shown evidence or subjected to noises from the location of the crime.
If the suspect was there at the crime scene, only then do his brain's sensors pick up the event-associated potentials in the form of Brain Mapping. Brain Mapping is quite precise. When a person is subjected to a brain mapping session, their brain is mapped in reaction to an external stimulation. The brain emits a specific electromagnetic wave called P300 when it detects a person or a sound. A series of sensors are placed on the subject's head, and they are asked to sit in front of a computer screen. For the sensors to capture the P300 wave, which is generated in the brain only when there is a connection between the visuals and the sounds presented to the individual, both must be meaningful to him. 1 A polygraph test is also known as a lie detector.
In this test, a machine is used which measures a person’s heart rate, blood pressure, respiration rate, and conductivity to prove whether the subject is lying or not. When a person tries or attempts to lie then their nervous system acts in a way that they have no control over it. The frequency is then measured to check the correctness of the answers. “Narco Analysis test involves the administration of a drug (such as sodium pentothal, scopolamine, and sodium amytal) also known as truth serum that causes the subject to enter into various stages of anesthesia. In this stage, the subject becomes less inhibited and is more 1 Radhesh Yogeshchandra Vyas, Detection of deception test (ddt) using narcoanalysis, brain mapping and polygraph during the investigation as panacea for custodial torture, International Journal for Creative Research Thoughts (28 Sept 2024, 11:13 AM) https://ijcrt.
org/papers/IJCRT2212516. pdf. likely to divulge information, which would usually not be revealed in the conscious state. He or she may also divulge all his/her fantasies, personal wishes, impulses, instinctual drive, illusions, delusions, conflicts, misinterpretations, etc. ”2 Subject after being administered such drugs is interrogated and investigated in the presence of a doctor with a video and audio recording. Laws regarding the validity of DDT tests These are various laws in India that put light on the constitutionality and admissibility of these tests in India. The constitution of India itself protects the “right against self-incrimination” under Article 20(3) which includes the right to be silent. Article 20(2) of the Indian constitution states that ‘No person accused of any offense shall be compelled to be a witness against himself.
’ The basic purpose of adding this provision in the constitution is to ensure Allowing mandatory examinations of an accused could lead to the use of force and torture to extract inconsistent statements from them. The privilege against self-incrimination helps protect individual privacy and upholds civilized standards in the administration of criminal justice.. Code of Criminal Procedure, Section 161(2) states that every individual “is bound to answer truthfully all questions, put to him by [a police] officer, other than questions the answers to which would have a tendency to expose that person to a criminal accusation, punishment or relinquishment". Section 27 of the Indian Evidence Act states that any confession made to a police officer during the investigation will not be admissible in a court of law.
All these legal provisions put into question the admissibility and evidentiary value of such scientific methods in a court of law. Admissibility in the court of law? It is very important and interesting to understand that the extracted information from these scientific tests cannot be used as evidence during the trial stage. The claim is that “by using these so-called, “scientific procedures” in fact-finding, it will directly help the investigating
2 Suresh Bada Math, Supreme Court judgment on polygraph, narco-analysis & brain-mapping: A boon or a
bane, Indian Journal of Medical research (20 Sept 2024, 2:23 PM) https://www. ncbi. nlm. nih. gov/pmc/articles/PMC3171915/#:~:text=Narcoanalysis%3A%20This%20test%20involves,into%20various%20stages%20of%20anaesthesia’. agencies to gather evidence, and thereby increase the rate of prosecution of the guilty and the rate of acquittal of the innocent. ”3 The legal position as of now states that “no person shall be subjected to narco analysis, polygraph, or brain mapping test without their consent. ”4 Any such evidence will not be admissible in a court of law. Even if they are administered to such test with consent then it cannot be the sole basis of incrimination but can only be used as supported evidence. Is consent necessary in such cases? Various High Courts and Supreme Court from time to time made various interpretations on the rights of accused persons.
In one such case, the question before the court was whether these tests are violative of Articles 20(3) and 21 of the Constitution of India. In the case of “State of Bombay v Kathi Kalu oghat”,19615 the Court held that to attract the provision of Article 20(3) of the constitution of India it must be proved in the court that the person(testifier) was compelled to make the statement that was incriminatory against himself/herself. The accused person can be directed to give his specimen handwriting, or signature, or the impression of his palms and fingers, etc as they are part of material evidence and this will not amount to selfincrimination. Self-Incrimination must mean conveying information based upon the personal knowledge of the person giving the information and covers only “personal testimony which must depend upon his volition”.
It cannot simply involve the mechanical submission of documents in court that may illuminate issues in dispute but does not include any statements from the accused based on their personal knowledge. In another case of “Nandini Sathpathy V PL Dani”,19646 where the right to keep silent was recognized by the Hon’ble Court and it was held that no accused person can be forced/compelled to make statements. The accused person has the right to keep silent during the course of interrogation (investigation). Further in the case of “Dinesh Dalmia v State of Madras”,20067 it was held by the Madras High Court. that the scientific methods like narco analysis, polygraph and brain mapping used to bring out the truth from the mouth of the accused person do not amount to breaking silence by force.
3 Selvi v. State of Karnataka, (2010) 7 S.C.C 267 (India).
4 Selvi v. State of Karnataka, (2010) 7 S.C.C 267 (India).
5 State of Bombay v. Kathi Kalu oghat, A.I.R. 1961 S.C. 1808 (India).
6 Nandini Sathpathy v. PL Dani, A.I.R. 1978 S.C. 1025 (India).
7 Dinesh Dalmia v. State of Madras, (2006) CRILJ 2401 (India).
Finally in the judgment of “Selvi v State of Karnataka”,2010 The legal question pertains to the Constitutional validity of involuntary administration of certain scientific techniques, the question before the court was whether the results gathered from the impugned tests amount to `testimonial compulsion', thereby attracting the prohibition of Article 20(3). It was observed by the court that no test could be administered unless by consent of the accused was obtained. Such tests shall only be administered before a magistrate in the presence of their lawyer. The statement made would also have the status of a statement made to the police and not a confessional statement. The test would be conducted by an independent agency, in the presence of a lawyer, and would be duly recorded.
8 This judgement also reproduced guidelines published by the National Human Rights Commission and directed that these guidelines must be strictly followed, and such safeguards must be followed for conducting the 'Narcoanalysis technique' and the 'Brain Electrical Activation Profile' test. These guidelines were as follows- (i) Lie Detector Tests should only be conducted with the accused's consent, providing them the option to participate or not. (ii) If the accused chooses to undergo a Lie Detector Test, they must be allowed access to legal counsel, who will explain the physical, emotional, and legal implications of the test. (iii) Consent must be documented in the presence of a Judicial Magistrate. (iv) The accused should be represented by a lawyer during the Magistrate's hearing.
(v) During the hearing, the accused must be clearly informed that any statements made will not be considered a confession but will be regarded as statements made to the police. (vi) The Magistrate should evaluate all factors related to the detention, including its duration and the nature of the interrogation. (vii) An independent agency (like a hospital) must conduct the Lie Detector Test, with a lawyer present during the procedure. (viii) A comprehensive medical and factual record of how the information was obtained must be documented. Recent decisions of the court Trends after Selvi's Judgement are somewhat different and confusing. It was made very clear
8 Selvi v. state of Karnataka, (2010) 7 S.C.C. 267 (India).
in this judgment that the consent of the accused person is very important before administering any such test but some courts are not allowing such tests even after the consent of the accused. In the case of “Veena Devi Vs. The State of Bihar and Ors. ”9 The Patna High Court set aside the order passed by Judicial Magistrate 1st Class to issue a warrant of arrest against the accused for administering a polygraph test. It was held by the court that such order cannot be sustained as consent of the accused person is important for the administration of such tests. In the case of “Rishiraj Mukherjee Vs. Central Bureau of Investigation and Ors.
”10 the high court of Chhattisgarh set aside the impugned order passed by a special judicial magistrate directing the petitioner to undergo a narco analysis, polygraph, or brain mapping test as these tests are necessary for the furtherance of the investigation. The high court held that every person is presumed to be innocent until proven guilty. So no one can be subjected to any such test without their consent. In an order by the Kerala High Court in the case “Louis v State of Kerala"11. In this case, the accused who was a 60-year-old man and wanted to undergo narco analysis test with his consent. The court rejected the plea to voluntarily go under the narco analysis test. The accused was guilty of an offense under the POSCO Act.
The court’s primary concern was that there was a danger that the person would not be able to make the effective choice of his right to be silent and chances of imparting personal knowledge are also prominent in such cases. In another case of “Vipin Kushwaha v State of Madhya Pradesh”12, the accused was charged with serious offences under sections 294, 324, 323, 506, 302, and 307 IPC and wanted to undergo a narco analysis test. The Hon’ble High Court rejected the plea and said it would be not useful to permit the accused to undergo a narco-analysis test as it is not admissible as evidence. In an order by the Rajasthan High Court in the case “Sunil Bhati v State of Rajasthan”13, the court permitted the accused person to undergo a narco-analysis test in support of his defense.
Justice Pushpendra Singh Bhati observed that the accused has the right to undergo such scientific methods with his consent. Although this cannot be used as a piece of sole evidence but can be used to support and collaborate the main evidence and can also be used in the course
9 Veena Devi v. The State of Bihar, MANU/BH/0841/2015 (Patna HC 2015).
10 Rishiraj Mukherjee v. Central Bureau of Investigation, MANU/CG/0017/2016 (Chhattisgarh HC 2016).
11 Louis v. state of Kerala, CRL.MC NO. 4007 OF 2021 (Kerala HC 2021).
12 Vipin Kushwaha v. State of Madhya Pradesh, M.Cr.C. No. 11699/2021 (MP HC 2021).
13 Sunil Bhati v. State of Rajasthan, 2022 LiveLaw (Raj) 227 (Rajasthan HC).
of the investigation, by the prosecution and as well as courts In “Vinod Mittal vs State Of Himachal Pradesh & Another” 14it was observed by the Himachal Pradesh High Court that while it is not legally prohibited for a court to mandate a person to undergo Narco Analysis, polygraph, and BEAP tests, any such direction must be contingent upon the individual's consent. The individual has the right to choose whether to agree to or decline the tests. Criticism of these tests These tests face lots of criticism with reference to their admissibility, constitutionality, validity, and credibility. This is due to the fact that these can be instances where a person can have control over his body and senses even after being subjected to truth serum or any other scientific method.
Also, if the statement made by a person in a state where he does not have control over their senses also possesses thread to the right of an accused person. How can we incriminate someone for the admissions made by that person in a state where he had no control over his senses? Conclusion With the development of modern scientific technology is also rapidly increasing. We can also see the increase in the use of technology by criminals to commit crimes, cyber crime are one such example. If criminals can take advantage of such technology then why not our investigating and judicial system to maintain law and order in society? But at the same time, we must not forget the principle of ‘accused is innocent until proven guilty’. Our law ensures that any accused (not proven guilty yet) must not be tortured by the process of investigation or trial.
There are some rights given to an accused person as well. DDT test plays a vital role in the investigation process. It helps the investigating agencies to get out some concealed information out and use that information to collaborate with other evidence. Information extracted out of such tests does not have any admissibility in a court of law. It cannot be used as a sole basis of incrimination but it can be used as a piece of collaborative evidence. In a Shraddha Walker case, 2024 where the accused was charged of murder of his live-in partner was taken to hospital for a narco-analysis test to take out the concealed information.
14 Vinod Mittal v. State of H.P., (2020) (HP HC).
Now it is a well-established fact by the judicial precedents that conducting DDT tests without the consent of the accused is violative of Articles 20(3) and 21, such tests can only be conducted with the consent of the accused. Even Bharatiya Nagarik Suraksha Sanhita,2023, and the Bharatiya Sakshya Sahita,2023 do not contains any explicit provisions for these laws only judicial precedents governs them.
BIBLIOGRAPHY
Primary sources Bare acts • The Constitution of India,1950 • Code of Criminal Procedure, 1974 • The Indian Evidence Act, 1872 • Bharatiya Nagarik Suraksha Sanhita,2023 • Bharatiya Sakshya Sahita,2023 Case laws • Dinesh Dalmia v. State of Madras, (2006) CRILJ 2401 (India). • Louis v. state of Kerala, CRL. MC NO. 4007 OF 2021 (Kerala HC 2021). • Nandini Sathpathy v. PL Dani, A. I. R. 1978 S. C. 1025 (India). • Rishiraj Mukherjee v. Central Bureau of Investigation, MANU/CG/0017/2016 (Chhattisgarh HC 2016). • Selvi v. State of Karnataka, (2010) 7 S. C. C 267 (India). • State of Bombay v. Kathi Kalu oghat, A. I. R. 1961 S. C. 1808 (India). • Sunil Bhati v. State of Rajasthan, 2022 LiveLaw (Raj) 227 (Rajasthan HC). • Veena Devi v. The State of Bihar, MANU/BH/0841/2015 (Patna HC 2015). • Vinod Mittal v. State of H. P. , (2020) (HP HC). • Vipin Kushwaha v. State of Madhya Pradesh, M. Cr. C. No.
11699/2021 (MP HC 2021). Secondary sources Online journals • Radhesh Yogeshchandra Vyas, Detection of deception test (ddt) using narcoanalysis, brain mapping and polygraph during the investigation as panacea for custodial torture, International Journal for Creative Research Thoughts (28 Sept 2024, 11:13 AM) https://ijcrt. org/papers/IJCRT2212516. pdf.
Suresh Bada Math, Supreme Court judgment on polygraph, narco-analysis & brainmapping: A boon or a bane, Indian Journal of Medical research (20 Sept 2024, 2:23
PM) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3171915/ - :~:text=Narcoanalysis%3A This test involves,into various stages of anaesthesia’. Other sources www.livelaw.in https://www-manupatrafast-in.gnlus.remotlog.com/pers/Personalized.aspx https://ijcrt.org/papers/IJCRT2212516.pdf https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3171915/#:~:text=Narcoanalysis%3A%20This%20test%20involves,into%20various%20stages%20of%20anaesthesia