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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
LEGAL ARTICLE
The Supreme Court Ruling on the use of Narco
Analysis is an incomplete exercise
Justice- A.R. Lakshmanan

The recent Supreme Court ruling on the use of narco analysis, brain mapping and polygraph in Police investigation in India , though in a broader sense a welcome verdict, is an incomplete exercise. The verdict is the result of the Criminal Appeal No. 1267 of 2004 clubbed with a spate of connected appeals.

As a matter of fact, I, as the former Chairman of the Law Commission of India have undertaken a complete exercise of examining the merits and demerits of the sudden spurt of using narco analysis, brain mapping, and polygraph in Police investigation in India only during the last ten days. I had finalized the Commission's report [ vide The Hindu report dated May 7, 2009 (Chennai edition) and May 7, 2009 ( Delhi edition) and it was at the time of submitting the report that I had to demit my office].

The exercise was initiated when the Commission received a detailed memorandum on the issue from the Forensic Science Society of India represented by its Founder President, Prof. P. Chandra Sekharan.

I considered the matter as of 'national importance' and gave my thought to the views expressed in the country-wide debates that were going on in several fronts, forums, media, human rights outfits, academic and professional bodies like Forensic Science Society of India, Indian Psychiatric Association, Indian Medical Ethics group and others. The Commission discussed the validity of these techniques not only in the Constitutional angle, but also in the scientific, ethical and human rights perception.

No doubt, the Supreme Court's ruling vindicates the conclusion of my personal opinion, it is also a timely move to curb the sudden revival and marketing of the almost hundred years old 'narco and polygraph tests combined with the recent premature brain mapping' test as a 'three-in-one package' by a few Indian pseudo scientists in the Indian investigation scenario. But the rider that this ruling would not go against those voluntarily agreeing to undergo these tests is obviously the outcome of the examination of this matter by the Supreme Court based more on the constitutional angle rather than the scientific perception and ground realities.

How wrongs can become right if done with consent?

Even looking at the constitutional angle, how can a wrong committed against constitutional principles become right when it is done with consent? All the arguments brought forth by the Supreme Court against the forcible use of narco analysis, polygraph and brain finger printing should also hold good when used with consent. Would not subjecting a person to these impugned techniques even with the consent violate the prescribed boundaries of privacy?

Nevertheless, the Supreme Court of India decision is indeed laudable. The Court, considering the several dimensions of the issue, made an elaborate exercise in understanding the descriptions of these tests, their uses, limitations and precedents by quoting several citations and decisions of American, Canadian, and British Courts in its 250 page judgment.

Narco Analysis

But, as far as Narco Analysis is concerned, the Court had not gone into details regarding the following aspects of ground realities prevailing in India :

 

i) Why was the age old and abandoned narco test suddenly revived in India during the last ten years only and that too, by Psychologists appointed as lie detector technicians in Forensic Science Laboratories?

ii) Why is narco analysis, an invasive medical procedure always conducted only by Psychiatrists (Medical men) all over the world while even when the procedure was in vogue or practiced when it was abandoned, was permitted to be performed by non-medical Psychologists in India?

iii) Are there any evidences to show that the old narco analysis technique has been improved a wee bit by these Psychologists by way of authoritative research, peer review and publications? (Neither the use of disposable syringe and bed-sheets nor the use of advanced monitoring devices can be counted towards improvement or alteration in the basic principles of the technique).

iv) Is there a scientific test to assess accurately whether an individual is awake or in trance (hypnotic stage) after administration of the drug?

v) Why is narco analysis offered as a confirmatory test in a 'three-in-one package' of polygraph, brain finger printing and narco analysis tests conducted in that order by one and the same Psychologist?

vi) How can the narco analysis tests, carried out on the same subject five or six times until the desired answer is obtained, be considered as a scientific test?

The Court has elaborately discussed about 'Narco Analysis Technique' in 26 paragraphs (41 to 66) and all the citations referred to therein indicate that the narco analysis expert is only a Psychiatrist (medical personnel) and not the non-medical Psychologist as is the case in Indian scenario.

Brain Finger Printing

The Supreme Court Judgment, while dealing with the brain finger printing technique in Paragraphs 67 to 77, always refers to the technique as "Brain Electrical Activation Profile (BEAP)" test, having been again guided by the 'Laboratory Procedure Manual (2005)' and 'Brain Electrical Activation Profile' provided by Directorate of Forensic Science, Ministry of Home Affairs, and Government of India.

The observation of the Supreme Court that "there is an important difference between the 'P300 waves test' that has been used by the Forensic Science Laboratories in India and the 'Brain Finger printing technique' which is not vouchsafed with any citation.

The brain finger printing technique was actually first developed and patented in 1995 by Lawrence A. Farwell of the U.S. His technique is so science-fictional that there were no takers in other parts of the world and was dumped as Potemkin science. In India , the Brain Finger Printing research is really a hoax because till date, no peer reviewed research paper has come out from the Indian research group.

The Indian group of Psychologists, who claimed to have developed their own brain finger printing techniques, has their earlier moorings in National Institute of Mental Health and Neuro Sciences (NIMHANS). But the Expert Committee chaired by the Vice Chancellor-Director of NIMHANS, appointed by the Minister of Home Affairs, Government of India to examine the scientific validity of the brain finger printing technique practiced by the two Indian groups, declared both the techniques as unscientific and recommended immediate discontinuance.

Both the groups make use of the EEG machine to detect the scalp electrical signal output. The signal detected by the scalp electrode is predominated by the excitatory and inhibitory post-synaptic potentials on dendrites and neuronal cell bodies, not the deeper axon action potentials. Thus, EEG is compared to a listener who is sitting outside a football stadium and cannot see the activity inside, but may make some reasonable guesses about the course of the game based on hearing the fluctuating roar of the crowd. This vantage point does not allow the listener to understand fully the details of the game or what individual conversations may be taking place between the coach and the players.

Similarly, scalp electrode can detect the fluctuating tonic activity of millions of neurons allowing the electroencepohalpgrapher to make some broad assumptions about the functioning of the brain. However, this technique is not sensitive to the exquisite detail that is needed to appreciate neural activity associated with cognitive processes or mood states. While this is the correct and latest assessment of EEG even in medical diagnosis, how can our non-medical Psychologists claim to read reactions of the brain to pinpoint the guilty person?

Polygraph Test

The Supreme Court had discussed the use of polygraph test more elaborately in Paragraphs 9 to 40 in a very convincing manner. Nevertheless I am skeptical about the Supreme Court direction that the 'Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' prescribed by the National Human Rights Commission in 2000 should be strictly adhered to and similar safeguards should be adopted for conducting the 'Narco Analysis Technique' and the 'Brain Electrical Activation Profile Test.' 'What's sauce for the goose is sauce for the gander' theory cannot apply here. A non-medical technician can conduct a Polygraph test. But only a Psychiatrist with the assistance of a Medical team can do the Narco Analysis Test.

Supreme Court's Long Arm

But Supreme Court in its wisdom used its long arm to silence the misinterpretation of the legal experts claiming that the provision for 'medical examination' under the Code of Criminal Procedure, 1973 also includes narco analysis technique, polygraph examination and BEAP test.

Forensic Science never owned the polygraph or the recent science-fictional brain finger printing as scientific tests belonging to their armour. Polygraph has always been the tool of the criminal investigator rather than the forensic scientist even before it came to disrepute. Its functions have been handled world over by people trained in the techniques of criminal investigation and interrogation and not by forensic scientist.

Unlike other expert witnesses who testify about factual matters outside the Court's knowledge, such as the analysis of finger prints, ballistics or DNA found at a crime scene, a Polygraph expert can supply the Court only with another opinion.

Since one cannot reliably measure human emotions (especially when one has an interest in hiding his/her emotions), the idea of valid detection of truth or falsehood through measuring respiratory rate, blood volume, pulse rate and galvanic skin response is a mere pretence. Since Psychologists cannot ascertain what emotions one has, polygraph professionals are not able to do that either.

Polygraphy has also been faulted for failing to trap known spies such as double-agent Aldrich Ames who passed two Polygraph tests while spying for the Soviet Union .

"It is completely without any theoretical foundation and has absolutely no validity. Although there is disagreement amongst the scientists about the use of Polygraph testing in criminal matters, there is almost universal agreement that Polygraph screening is completely invalid and should be stopped". I am yet to come across any peer reviewed published research paper by our Indian group against this view.

In the opinion of the former Supreme Court Judge, Hon'ble Mr. Justice K.T. Thomas, Narco Analysis method is a crude technique in criminal investigation. Even developed countries, having found it improper, have stopped this method. While inaugurating a Private Detective Agency 'Shadows', he said that the developed countries no longer use this method as the main strength of the trial depends on evidence produced. When the U.S. wanted to conduct the same on persons connected with the terrorist attack on the World Trade Centre, they took the suspects to a remote island fearing objections from the country. Justice Thomas said, the trial of a criminal case should not be one for convicting the accused, but one for ensuring that an innocent person was not convicted.

Re-examination suggested

If the Supreme Court examined the veracity of the impugned techniques in this angle, I am sure they would not have given room to the rider to have these tests done with consent. A careful and detailed reading of the discussion of the Supreme Court in several paragraphs, especially in Paragraphs 169, 170, 193,194, 196, 217, 218 and 220 of the Judgment in Criminal Appeal No. 1267 of 2004 in the case of Smt. Selvi and others v. State of Karnataka, dated May 5, 2010 runs in favour of total ban of these tests. How many of our population will know the real meaning of consent and its legal implication?

Those who will be affected by this rider will only be the innocent common folk of this great Nation. It is for the Hon'ble Supreme Court to re-examine the issue in all its perspective and give a clear-cut verdict in the public interest.

 
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