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Legal tenability suspect

Suhas Chakma Director, Asian Centre for Human Rights

The narco-analysis test conducted on Abdul Karim Telgi on February 11 2004 has created a stir. The question is whether this form of probe will stand the test of legal tenability in the administration of criminal justice. One of the cardinal principles of administration of criminal justice is the maxim, nemo tenetur seipsum accusare-that "no man is bound to accuse himself". The protection against self-incrimination is recognised under Article 20(3) of the Constitution which states "no person accused of any offence shall be compelled to be a witness against himself". Article 14(3)(g) of the International Covenant on Civil and Political Rights also provides the right "not to be compelled to testify against himself or to confess guilt". Does narco-analysis violate the protection against self-incrimination? India has no previous legal precedent on the use of "truth serum", although polygraph test and brain finger printing have been used. In December 2003, the prime accused in the Arun Bhatt kidnapping case, Jeetu Patel moved the National Human Rights Commission and the Supreme Court against a Gujarat High Court directive to conduct a narco-analysis on him. Patel objected on the grounds that he was a cardiac patient and was not in agreement to conducting the narco-analysis on him and therefore it violates Article 20(3) of the Constitution.
The Fifth Amendment of the US Constitution also provides protection against self-incrimination by stating "No person shall be compelled in any criminal case to be a witness against himself". Though the permission of the court and consent of the subject have been held as fundamental in the US, there are controversies and disagreement over the use of various drugs-scopolamine, sodium amytal, and sodium pentothal-for narco-analysis. The New Jersey Supreme Court set the case law in the case of State v. Pitts in 1989 by disallowing the results of a sodium amytal interview, ruling that it is not a valid scientific technique.

The case law on the use of polygraph evidence is instructive for narco-analysis. Polygraph tests in the vast majority of jurisdictions follow a stare decisis (let the precedent stand) pattern in which they are not admissible (per se inadmissibility) at any criminal trial unless there has been a prior stipulation by both prosecution and defence to agree to submit the results of such examination. Both sides should agree on the undisputed expertise of a single examiner, or that the prosecution should use its own examiner and the defence should use its examiner, but the power to choose rests with the defence, a phenomenon referred to as the "friendly examiner" syndrome. The law is more complicated than per se inadmissibility. Because of stare decisis and the Fifth Amendment, the state cannot require a criminal suspect to submit to a polygraph, even under some pre-trial stipulated agreement. If there is a state-sponsored examination, it must be voluntarily taken and then if the results are negative, they are generally inadmissible because the test was given under coercive circumstances. Therefore, only positive test results ever get seen at trial. For this reason, legislators in about half of States in America have prohibited polygraph evidence in criminal cases at all, for any reason, stipulated agreement or otherwise. Although courts in India are increasingly attaching greater importance to forensic evidence these days, the use of polygraph tests, brain finger printings, etc are usually viewed with suspicion. Most forensic laboratories in India are attached to police departments. Even in normal medical examinations such as autopsy, many medical professionals skirt the principles of the profession because of coercion from the police to doctor the reports. Therefore, the agreement of both the prosecution and defence on the undisputed expertise of a single examiner or a group of examiners for narco-analysis will remain crucial.

The narco-analysis test on Telgi and others may set legal precedents, but the disagreements among the scientists over the use of various truth serums and results cannot be underestimated in the administration of criminal justice. Narco-analysis test report itself should not be considered as evidence for conviction unless other evidence corroborates it. Telgi has reportedly mentioned one "Bhujbal". But, the SIT is not clear whether Telgi referred to Maharashtra's former Deputy Chief Minister Chagan Bhujbal or his nephew, Sameer Bhujbal. It is not the statements obtained through narco-analysis test, but evidence collected through investigation, which will stand ultimate judicial scrutiny.
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