This article has been written by Ms.Devika More,a 2nd year LLB Student from D.E.S.’S Shri Navalmal Firodia Law College, Pune.

Criminal justice is a system that deals with every person who has suffered injury or loss because of someone else and they are seeking justice through the agencies of the government who are responsible for enforcing law in the country. The main function of criminal justice is to punish the offenders in accordance with the crime committed and provide justice to people against whom the crime was committed.

In today’s day and age where there are a lot of developments in the society such as technological developments and so on, the criminal/offenders have found new and innovative methods to get away from the offense committed and hence that makes it difficult to render criminal justice and hence after all the investigation of certain cases the authority has no substantial evidence they use lie detectors/polygraphy tests. As the preeminent English jurist William Blackstone wrote, “Better that ten guilty persons escape, than that one innocent suffer.”  Thus lie detector tests play a prominent role in criminal justice. The information received by officials through such tests cannot be submitted as sole evidence in the court but it is a method to extract information which may or may not be useful in the investigation of the particular case.

The use of these types of lie detector tests have been a controversial topic as it is considered a human right violation. These tests cannot be performed without the voluntary consent of the suspect or the accused or the witness.

The mechanism of the test conducted is based on the psychological principle known as the psychosomatic interaction. This principle deals with minor physical changes in the human body which are the heart rate or the pulse rate increases and change in body temperature. Whenever the person lies or gives a false statement, they have a fear of getting caught and they hold in their emotions which causes a disturbance in their brain which leads to psychological changes in that person’s body. There are various lie detection techniques in India which are used and they are as follows:

Polygraph Method

Narco Analysis

Brain Mapping Techniques

These techniques that are used can have adverse effects on the person who is going through the test as some of them include injecting drugs and answering questions when they are not in a conscious state of mind. The investigators can also frame a question in such a manner which will make the person give out incriminatory answers and hence this method cannot be trusted.

In a LIE DETECTION test if a person is in control of their emotions then that can also lead to false results as they can manipulate the test results hence these types of tests are not completely reliable.

The lie detector instrument is attached to the suspect who is being questioned:

A pneumograph tube is attached around the chest of the suspect and another around his abdomen.

A blood pressure cuff is attached to their upper arm.

A weak electric current is passed to measure the galvanic skin reflex by attaching electrodes to the fingers.

The chair on which the suspect is sitting measures the body movements and pressure.

At first the examiner asks basic questions which are in YES/NO form to check if the test results are correct and then further questions and to be asked.

The National Human Rights Commission on 12 November 1999 adopted a set of guidelines relating to administration of the Polygraph Test or the Lie Detector Test.

The Commission, after bestowing its careful consideration of this matter of great importance laid down, the following guidelines relating to the administration of Lie Detector Test :

• No Lie Detector Test should be administered without the consent of the accused. Option should be given to the accused as to whether he wishes to avail the test.
• If the accused volunteers for the tests, he should be given access to a lawyer. The police and the lawyer should explain the physical, emotional and legal implication of such a test to him.
• The consent should be recorded before a Judicial Magistrate.
• During the hearing before the Magistrate, the accused should be duly represented by a   lawyer.
• At the hearing, the person should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.
• The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of interrogation.
• The actual recording of the Lie Detector Test shall be done in an independent agency (such as a hospital) and conducted in the presence of a lawyer.
• A full medical and factual narration of the manner of information received must be taken on record.

These guidelines of the Commission were circulated to the Chief Secretaries and DGPs of States as well as Administrators and IGPs of UTs by a letter dated 11 January 2000.

Rights against Self Incrimination : 

Nemo tenetur se ipsum prodere is a legal maxim which means no one is bound to accuse oneself. A suspect cannot be forced to witness against themselves. The rights against self incrimination are given under Article 20(3) of the Indian constitution which is based on the legal maxim nemo teneteur prodre accussare seipsum which means that the accused cannot be forced to be a witness against themselves and the burden of proof is with the prosecution, and Section 161(2) of the Code Of Criminal Procedure which provides that “Every person shall be bound to answer truly all the questions relating to such case put to him by such officer, other than questions the answers to which would have tendency to expose him to a criminal charge or to a penalty or forfeiture.

Selvi Vs. State Of Karnataka

The Supreme Court allowed a special leave petition to be filed after subsequent criminal appeals which were filed over the years and this petition challenged that various tests such as Narco analysis test,Functional Magnetic Resonance Imaging(FMRI),Brain Electrical Activation Profile(BEAP) and polygraph tests were conducted on the suspects,the accused and also on the witness that was involved, without taking any voluntary consent of the people involved in the test. The constitutional validity of these tests were questioned through which evidence was gathered.

The Supreme Court judgement stated the following:

No individual is subjected to these tests without their consent , if the same is conducted with force it violates the right of personal liberty which is given under article 21 of the Indian Constitution.

If such tests are being conducted with consent then all the appropriate safeguards are to be ensured.

The results of the test conducted with voluntary consent still are not considered as evidence in the court. However the information collected through these tests with voluntary consent could be taken under as per Section 27 of the Indian Evidence Act.

Conclusion:

Application of lie detectors for criminal justice has been a controversial topic till date and the constitutional validity of these tests is still unanswered. Yet all over India there is use of such tests in the investigations to get information and evidence regarding the cases and in some cases it is through consent and most of the times it is done without the consent of the person involved which can be harmful and self incriminating for the person involved. There can be instances where the examiner can manipulate the results according to their advantage.

These tests overall are violation of personal liberty and intrusion of one’s mind and thoughts, as in some tests the person is not in a conscious state of mind and cannot control their brain, this is not considered as evidence in the court. These types of tests have been seen for a very long time, as in the past China, west Africa, etc. had their own method to detect lies and this lie detection test has also evolved over the years but in today’s time ,it is intrusion into one’s personal liberty. Based on the landmark judgement by the Supreme court the Parliament should enact new legislation regarding application of lie detectors in criminal justice.

References:

The Use Of Lie Detectors In Criminal Justice In India (legalserviceindia.com)

Selvi Vs State of Karnataka – Case Analysis – Law Corner

POLYGRAPHY TEST AND ITS LEGAL ADMISSABILTY IN INDIA by Thota Raghavendra – JOURNAL FOR LAW STUDENTS AND RESEARCHERS (jlsrjournal.in)

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