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The truth, the whole truth...

The Supreme Court’s ruling that non-voluntary narco-analysis and brain-mapping tests violate the Constitution was an observation that was as obvious as it was necessary.

india Updated: May 06, 2010 23:01 IST

The Supreme Court’s ruling that non-voluntary narco-analysis and brain-mapping tests violate the Constitution was an observation that was as obvious as it was necessary. Article 20(3) is unequivocal about protecting the individual’s choice to speak or remain silent. Regardless of what they show in the movies about innovative methods of investigation, the rule of the law applies to criminals as well as the lawkeepers. As the SC stated on Wednesday, the need to protect a suspect against coercion is “irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory” — that is, whether it suggests the subject’s guilt or innocence.

There are some, however, who find the ruling to be naïve and defend narco-testing. One, with the test results not admissible in court as evidence anyway, it was always about obtaining ‘leads’ from suspects speaking under the influence of a ‘truth serum’, they say. By this logic, as the SC hints at, ‘third degree methods’ (read: torture) can be equally adept at breaking down a suspect’s resolve to hide the truth. The other point that those who are the pro-narco-testing make is that the ruling should apply to ‘normal’ criminals and a separate provision be made for those suspected of being terrorists or waging war against the State. You don’t have to be a cynic or a human rights-wallah to know that this is going down a very slippery slope where high emotions alone are used to fuel an argument. Once ‘qualitative’ parameters enter the scene, there is little scope of discretion being practised to crack different kinds of crime.

It would be relevant here to point out that the case against involuntary narco-testing was brought to the courts by Santokben Jadeja who has been accused of running a criminal nexus. Thus, the appeal to revoke narco-testing was not from any theoretical ‘rights of man’ quarter but as an argument from a defence counsel. To make distinctions between who falls under the narco-testing net and who doesn’t is to make a distinction between the very notion of investigative methods. And it is here that the ‘scientific’ methodology of narco-testing and brain-scanning fails to stand up to the test. As experts have pointed out, these practices are hardly empirical — the very reason that unlike, say, DNA tests or fingerprinting, they don’t count as evidence. The reaction from some police quarters after the Supreme Court is telling: all narco-tests are conducted, they say, after getting permission from the suspects. Next, we will hear that all confessions in custody are ‘unaided’ confessions. With public opinion not necessarily in support of the court ruling — and especially because it isn’t so — our custodians of law should be doubly vigilant that dodgy short-cuts are not taken to prove the guilt of those accused of a crime. This is not about giving the criminal an advantage; it’s about not blurring the difference between criminals and those who put them away.