No narco analysis without consent, rules Supreme Court

New Delhi: The Supreme Court said on Wednesday that so-called narco analysis, brain mapping and polygraph tests cannot be conducted on any person without their consent.

Such procedures “are illegal and a violation of personal liberty”, ruled a three-judge bench headed by Chief Justice K.G. Balakrishnan. The order came in response to petitions questioning the validity of such tests that were filed by persons accused in various criminal cases.

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Prosecuting agencies and the police have been using such tests and various courts in the country have been giving conflicting judgements on their validity.

If a person consents to take a polygraph test to establish one’s innocence, the National Human Rights Commission guidelines pertaining to this would have to be observed, the court said. Similar guidelines need to be adopted for narco analysis and brain mapping, the court said.

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Further, any confession of guilt during the course of the tests can’t be treated as evidence in court. The apex court had reserved its judgement on 25 January 2008 after hearing the petitions.

The Central Bureau of Investigation has been seeking the permission of courts and the consent of subjects before conducting “narco tests”, its spokesperson Harsh Bhal told Mint.

“We have yet to receive the copy of the judgement,” he said. “Only after receipt of the judgement, we may react.”

Those who moved the apex court included Santokben Sharmanbhai Jadeja, accused of being a leader of organized crime in Gujarat, film producer K. Venkateswara Rao, fake stamp paper scam accused Dilip Kamath.

The petitions opposed the tests on the grounds that they violate Article 20(3), of the Constitution, which states that “no person accused of any offence shall be compelled to be a witness against himself”.

The Centre, through G.E. Vahanvati, then solicitor general and now attorney general, had supported the tests and told the apex court that investigative agencies had legal mandate to conduct them. The results provided clues and did not have any evidentiary value, Vahanvati had said.

Lawyer Rebecca M. John, counsel for accused Maoist leader Kobad Ghandy, who had successfully opposed the tests in the Delhi high court, said she felt vindicated. While there is no scientific literature to prove truth serum works, human rights groups have held the tests to be mental torture, she said.

Dushyant Dave, amicus curiae (friend of the court) in the case, said: “It is a historic judgement and the first instance anywhere in the world where the Supreme Court of the country has held these tests to be impermissible. The judgement is especially important because the police and prosecuting agency, on the pretext of fighting terrorism, are hellbent on curbing the ambit of constitutional rights.”

Human rights lawyers and activists welcomed the ruling.

“It’s a landmark judgement as these tests were a travesty of justice. The police, instead of collecting real evidence, relied on these tests to spread rumours about the suspect,” said Colin Gonsalves, Supreme Court advocate and director of Human Rights Law Network. “Selective leaks were made to the media that a particular suspect has made confession during the tests.”

Graphic by Ahmed Raza Khan/Mint

manish.r@livemint.com