Frequent use of narco-analysis by investigative agencies has raised several questions of law and civil liberties as the legality of such an intrusive test remains under question in the absence of any specific legal provision and definitive judicial pronouncement.
Narco-analysis and brain mapping tests have been termed illegal, unconstitutional on the ground that these violate an individual’s fundamental right under Article 20(3) of the Constitution that says, “No person accused of any offence shall be compelled to be a witness against himself.”
Further, these intrusive tests apparently violate a suspects ‘right to privacy’ that forms part of right to life and liberty, a fundamental right guaranteed under Article 21.
Investigative agencies have been defending the use of modern techniques such as narco-analysis and brain mapping tests on the ground that it is necessary to deal with organised crime and terrorism crack complicated cases.
Statements procured from the accused during such tests are not admissible as evidence in courts. But probe agencies use the material obtained as a result of such examination to get to the bottom of a case and the evidence gathered in the process could also be admissible in courts.
Apparently, there appears to be a conflict between individual freedoms and the interest of the society at large, as champions of civil liberties question the claims of investigative agencies. How far individual freedoms can be compromised for societal interest?
There are well-defined legal parameters to resolve such conflicts – actual or perceived. But surprisingly the Supreme Court is sitting over the issue for 21 months. A bench headed by Chief Justice of India K.G. Balakrishnan, which reserved its verdict in January 2008 on the validity of narco-analysis, brain-mapping and polygraph tests, is yet to pronounce it.
Senior advocate Rajiv Dhavan said: “Not delivering judgment on time is fatal to justice. It is shocking that on a matter of such importance involving invasive test the Supreme Court has not delivered a judgment for 21 months.”
The court has not even stayed it. If SC declares it illegal, what will happen to those who underwent narco-test since January 2008, when the court reserved its verdict?