No to mind games
The Supreme Court’s decision declaring forced narco-analysis and lie-detector (or brain mapping) tests unconstitutional is impeccable, not only in law, but also in terms of investigative probity and the integrity of policing. Some critics have described the judgement as a “blow” to investigative agencies. But this is nothing but a blow against shoddy, unscientific investigations and a pervasive psyche that seeks to substitute shortcuts for proper and modern methods of evidence-gathering and evaluation. It is significant that, in recent years, there had been increasing and often unproductive recourse to coercive narco and brain-mapping tests in a number of high-profile cases.
Constitutionally, an accused cannot be “compelled to be a witness against himself”, and the court has now clearly held that forcing a person to submit to these tests constitutes just such a compulsion. This settles the law on a subject that has produced divergent judgements in lower courts, with several cases in which the use of narco-analysis and lie-detector tests was upheld. This does not, of course, mean that there is no scope for such tests. It is only their coercive use that has been disallowed by the court. Where suspects are willing to submit voluntarily in an effort to ‘clear their name’ of particular allegations, judicious use of these tools remains possible, within the natural reservations that must arise from the imperfection of these methods.
Of course, an argument from expediency may arise: the threats of terrorism, proxy war and mass political violence in India have become so great that the ‘public interest’ demands the use of such methods. This, however, is a slippery slope that will end up with the justification of torture and other ‘shortcuts’ we have become habituated to. Crucially, however, such arguments are entirely defeated by an objective evaluation of the efficacy of these methods, and the deleterious impact they have on professional integrity and competence within the police.
‘Evidence’ yielded through either of these methods is, of course, not admissible in court. Advocates, however, argue that these can offer useful aids to investigation, leading to recoveries and substantive admissible evidence. The reality is, narco-analysis and lie detector tests are essentially in the realm of pseudo-science. They are far from reliable and, on the occasions that they may, in fact, yield acceptable results, are enormously dependent on the skills and sincerity of those who use these tools.
Narco-analysis reduces the subject to a deeply suggestible state and, like torture, in the hands of the wrong interrogators, can yield precisely the ‘confessions’ that are sought — whether or not these have any basis in fact. Given the broader conditions of the Indian investigative apparatus, it must be recognised that, to the extent that the use of such methods becomes widespread, these may well lead to the planting or concoction of ‘corroborative’ evidence and testimonies. Moreover, both narco-analysis and lie detector tests produce wildly divergent outcomes from interrogator to interrogator and from subject to subject. Individuals react very differently to these tests. Such testing not only produces unreliable data, but hardened criminals may well be able to, or be trained to, produce deceptive outcomes, effectively misdirecting or terminating productive investigations.
The crucial argument against such tests, however, arises from its general impact on the character and capacity for scientific investigation and professional policing. Increasing reliance on these tools is essentially an unreliable shortcut that obstructs the development of effective capabilities for scientific investigation and the creation of adequate forensic capacities within the law enforcement establishment.
There are a number of cases in the recent past — the Aarushi case prominent among these — where repeated and unproductive narco-tests have been sought to be substituted for utterly botched investigations and what, prima facie, appears to be the deliberate destruction of crucial evidence. There has been a veritable slew of recent cases — including the trial and acquittal of the two co-accused, Fahim Ansari and Sabahuddin, in the 26/11 Ajmal Kasab trial — where extremely shoddy investigative work has been manifest. Increasing reliance on shortcuts such as narco-analysis and brain mapping (and including torture) will only deepen the culture of investigative incompetence that is currently pervasive across the country.
The conditions of Indian policing in general, and the investigative apparatus in particular, are a disgrace to any modern nation, certainly to one that aspires to be a ‘great power’ in the conceivable future. This has been the result of decades of neglect by successive regimes, both at the Centre and in states. Instead of addressing the colossal cumulative deficit in capacities for policing, investigation and forensics, policymakers and the police leadership have been resorting to a range of slapdash methods that have undermined faith in enforcement agencies, even as they have largely failed to produce the desired results in terms of effective law-and-order management and prosecution of crime.
None of this is going to create the apparatus we need to fight the rising threats to internal security, though they may produce an occasional flash-in-the-pan ‘success’. In every sphere — the investigation of crimes, including terrorist crimes, is no exception — it must now be realised, there is no substitute for professionalism and efficiency, and for the creation of capacities for modern and scientific police work, and a competent and modern apparatus for internal security management.
Ajai Sahni is Executive Director, Institute for Conflict Management and South Asia Terrorism Portal
The views expressed by the author are personal