(v)Ět the hearing, the person in question 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. (iv)ĝuring the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer. (iii) The consent should be recorded before a Judicial Magistrate. (ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer. An option should be given to the accused whether he wishes to avail such test. The text of these guidelines has been reproduced below: (i) No Lie Detector Tests should be administered except on the basis of consent of the accused. The National Human Rights Commission, India has formulated guidelines which should be strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis technique’ and the `Brain Electrical Activation Profile’ test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, there could be voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place.
Doing so would amount to an unwarranted intrusion into personal liberty. No individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the `right against self- incrimination’. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the `right to fair trial’. It would also amount to `cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms.
Compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. Such an expansive interpretation is not feasible in light of the rule of `ejusdem generis’ and the considerations which govern the interpretation of statutes in relation to scientific advancements.
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the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. Forcing an individual to undergo any of the impugned techniques violates the standard of `substantive due process’ which is required for restraining personal liberty. The results obtained from each of the impugned tests bear a `testimonial’ character and they cannot be categorised as material evidence. Article 20(3) aims to prevent the forcible `conveyance of personal knowledge that is relevant to the facts in issue’. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion.
This Court has recognised that the protective scope of Article 20(3) of the Constitution of India extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. Compulsory administration of the impugned techniques violates the `right against self-incrimination’. Disposing of the appeals, the Court HELD: 1.1.
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