The suggestion that the family members of the victim of the Hathras gang-rape, and the policemen investigating the case, undergo narco-analysis tests will be challenged in court.
A petition has been filed by Mumbai-based activist Saket Gokhale before the Allahabad High Court. Gokhale terms the narco-test proposal “unlawful” and an attempt to coerce the victim’s family before it appears before the High Court on October 12. The petition has been filed under Article 226 of the Constitution, which gives the High Courts the right to issue writs to persons, authorities and governments.
On October 1, the Allahabad HC had taken suo moto cognisance of the circumstances under which the victim’s body was cremated and called the state’s Additional Chief Secretary/Principal Secretary (Home), Director General of Police, Additional Director General, Law and Order, and the Hathras District Magistrate and Superintendent of Police to appear before it. In the same order the High Court had also asked the victim’s family members to be present. It had said, “The state authorities are directed to ensure that no coercion, influence or pressure is exerted upon the family members of the deceased in any manner, by anyone.”
The special investigation team (SIT) constituted to look into the Hathras incident had submitted its report to the state government late on Friday evening after a number of officials, including the SP of Hathras, were suspended. It is this report that suggested that various officers and the family members of the victim be subjected to polygraph and narco-analysis tests.
Lucknow-based activist Nutan Thakur said, “The unilateral decision of the UP government to take narco test etc., in complete defiance of the law of the land clearly shows their complete disregard for rule of law”. Thakur will challenge the issue of the test as part of the High Court’s suo moto cognisance.
Thakur said, “The Supreme Court has made clear in Selvi and Ors. v. State of Karnataka that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. The court left room for the voluntary administration of the techniques with certain safeguards. The National Human Rights Commission has also issued clear guidelines in this regard.”
A narco-analysis test involves the injection of drugs such as sodium pentothal, scopolamine and sodium amytal that cause the subject to enter various states of unconsciousness.
In May 2010, the aforementioned Supreme Court judgement had called into question the involuntary administration of such tests for the purpose of improving investigation efforts in criminal cases for the violation of fundamental rights. These rights included “right against self-incrimination’ enumerated in Article 20(3) of the Constitution, which states that no person accused of an offence shall be compelled to be a witness against himself/herself. The test also infringes upon the right to life and personal liberty as provided by Article 21as it violates ‘the right against cruel, inhuman or degrading treatment’.
Narco-analysis tests, polygraphs and brain mapping have been legally contentious.
In Dinesh Dalmia versus state, 2006, the Madras High Court had observed that if the accused fails to cooperate with the investigation process undertaken during custodial interrogation, to unravel the mystery surrounding the crime, scientific investigation methods may have to be carried out to find the truth. Such investigation methods include the tests mentioned.
A 2011 paper titled Supreme Court judgment on polygraph, narco-analysis & brain-mapping: A boon or a bane, published in the Indian Journal of Medical Research says, “In the hypnotic stage, the subject becomes less inhibited and is more likely to divulge information, which would usually not be revealed in the conscious state. He or she may also divulge all his/her fantasies, personal wishes, impulses, instinctual drive, illusions, delusions, conflicts, misinterpretations, etc. The main drawback of this technique is that some persons are able to retain their ability to deceive even in the hypnotic state, while others can become extremely suggestible to questioning. This is especially worrying, since investigators may frame questions in a manner that may prompt incriminatory responses.”
