Thursday, May 06, 2010

More on Narco-analysis judgment

What to make of Sevli v. State of Karnataka, and the tension between investigative imperatives and a suspect's right against self-incrimination? In this opinion piece in today's The Indian Express, I argue that hopefully, the judgment will be read narrowly. In an earlier blog post, Taunabh has already laid out the case details. One fascinating aspect, which my piece does not explore, is the thin dividing line between a medical test (DNA samples, for instance), where consent is not required, and a "testimony", where it is. The court terms brain-mapping as a testimony, but is it really?


Rohit said...

The problem with Narco testing, seems to be an overreliance on it by investigating agencies at the cost of regular procedures, such as collecting and sealing evidence. Given that confessions are inadmissible in courts, I fail to see how drug induced 'statements' can be considered evidence. Its hardly foolproof, unless the Shiv Sena is really funding Maoists

There is a clear difference between physical evidence such as blood or fingerprinting and testimony (which is what 'brainmapping', at the end of the day is).

Arguably, our abysymal conviction rates are not because our criminal laws are too weak, or we don't allow confessions as evidence, but because our police and prosecutions seems to be incapable of managing a regular investigation (keeping a crime scene tamper free, sealing evidence, not loosing crucial documents).

Vinay Sitapati said...

hey rohit, confessions are inadmissible in court; since they are often forced out, they can be incorrect, just like narco-induced statements can be. But according to the evidence act, confessions can still be used by investigative agencies to discover "material facts", which is then admissible in court. Why can't the same logic be applied to narco-testing?

agree with you that there are several reasons for poor conviction rates. But the many police officers I spoke to for this story (many of whom were investigating officers in cases in which narco-testing was used) said that these were certainly helpful, even if not always reliable.

that cautious benefit has to of course be weighed against the principled and medical costs of such tests. but if you are saying that narco-tests have no value whatsoever, Im not sure I agree with you.

Madhav Khosla said...

Hi Vinay

That's an interesting question. Here's the difference between narco-testing and the same logic of Section 27 of the Evidence Act (discovery) cannot be applied to narco-testing:

In the case of confessions, one important reason for excluding them is that someone may be harassed by the police and lie, and so there is no way to confirm that he told he truth. Thus the requirement that he record his confession with a magistrate. The provision you speak about - leading to a discovery - suggests that in cases where the confession has led to a discovery of a physical object then that part of the confession is admissible which relates to knowledge about the physical object because obviously if the physical object has been found, it isn't all fiction (for instance, if X tells the police that he killed Y and kept the knife in place Z, and the police go to Z and find the knife, then it will be admissible that X knew that a knife was in place Z but it will not be admissible that X said he killed Y).

So the discovery of a physical object that assist in evaluating the veracity of the confession. In the case of narco-testing, the process of the testing itself is regarded as cruel and inhuman treatment (Article 21 Indian Constitution; see also Article 7, ICCPR). In other words it is akin to torture. So whether or not it leads to a certain outcome later is neither here nor there. Confessing, on the other hand, is not an act that is akin to torture. We must not confuse this with the point that confessing may take place under torture; It may also not. Hence the law does not disregard confessions, it disregards confessions to a police officer. So the argument is that narco-testing, even if it leads to the discovery of a certain object, should not be permitted because the act in itself is unjustified. In the case of water boarding, for instance, we don't look at outcomes to assess the permissibility of the act; same thing here.

sanjeev said...

Section 29 evidence acts makes confessions relevant if are made under the influence of intoxication i.e under the influence of liquor. Same thing is in narco test where the accused is under the influence of medicines in a scientific manner. His confession is not admissible but the information which he gives which leads to the recovery of any incriminatory evidence that can be admissible under section 27 of evidence act. there is no use of any torture or any third degree while taking the information from accuse which are deemed to be voluntary and in no way are in violation of Art 20 (3) of constitution.
More over quetions are being asked by investigation agencies relating to offence and not to his personal life , so there is no question of any invasion in his mind which violates his right of privacy under art 21.
If there can be reasonable classification under art 14 for a special class on the bases of reasonable intelligible differentia , then why can be such type of classification for hardcore criminals who have no social values. they should be kept away from the perview of it, even narco test against will amounts to violation of art 20(3) or 21.