[Originally written on 12 November 2006]
It is reported in the Times of India newspaper that the Union home minister Shivraj Patil on November 8, 2006, said that laws will soon be upgraded to make scientific evidence admissible in courts. This article examines the question of validity of such a law, as and when passed.
The question of constitutionality of the proposed law relating to admissibility of scientific evidence such as polygraph, narco-analysis, DNA fingerprinting, etc., has to be tested on the touchstone of Clause (3) of Article 20 of the Constitution, which lays down:
“(3) No person accused of any offence shall be compelled to be a witness against himself.”
It is to be understood firstly that there is no bar against a law relating to the admissibility of a scientific evidence if it is conducted on a witness (and not the accused) as the constitutional bar is only against the accused being compelled to be a witness against himself. Therefore, in so far as the proposed law laying down about the admissibility of the scientific evidence relating to subjecting a witness to say, narco-analysis or polygraph test, etc., is concerned, it cannot be declared unconstitutional on the aforesaid ground. That said, there may be other grounds of attacks or objections against even such a proposition, which I shall deal with slightly later.
Secondly, the other possibility is that the scientific examination such as polygraph, narco-analysis, etc., is conducted on the accused himself. In such a case, while it is true that the aforesaid provision of the Constitution puts a fetter on an accused being compelled to be a witness against himself, at the same time it is pertinent to point out that the approach of the courts in India has been to take a liberal view in such matters, i.e., the judicial opinion has been more in favour of allowing such scientific examination and not allowing the aforesaid fetter to come in the way.
The aforesaid protection can be analysed to consist of three main ingredients:
(i) This protection (which is a fundamental right) is available to a person who is “accused of an offence”.
(ii) The protection is against “compulsion” to “be a witness”.
(iii) The protection is available only when such “compulsion” relates to the giving of evidence “against himself”.
It is pertinent to point out that in the case of “State of Bombay v. Kathi Kalu Oghad”, AIR 1961 SC 1808, the Supreme Court (by a Bench of 11 Judges – one of the biggest Benches in the history of the Supreme Court) had ruled that the aforesaid Article 20(3) is not violated when an accused is directed to give his specimen handwriting, or signature, or the impression of his palms and fingers. The Supreme Court observed in this case:
“To be a witness may be equivalent to furnishing evidence in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification.”
It may be stated that the examination of the body of the accused by a medical practitioner is permitted in certain cases under S. 53 of the Criminal Procedure Code, 1973, itself, and its constitutional validity remains intact till date:
“53. Examination of accused by medical practitioner at the request of police officer. (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.”
It has been held in an old Madras case (Subbaya Gounder v. Bhoopala, AIR 1959 Mad 396) that compulsory taking of urine and blood samples from an accused is not hit by Article 20(3) as it is not testimonial compulsion.
In the case of “State of Gujarat v. Shyamlal Mohanlal Choksi”, AIR 1965 SC 1251, the Supreme Court noted the existence of provisions, inter alia, including the compelling an accused to submit himself to examination by experts in medical science, by observing: “Provision has been made requiring a person accused of an offence to give his handwriting, thumb marks, finger impressions, to allow measurements and photographs to be taken, and to be compelled to submit himself to examination by experts in medical science.”
It is true that the Supreme Court has not given its definite verdict about the question whether an accused can be compelled for subjecting him to latest scientific examinations like the polygraph, narco-analysis, DNA fingerprinting. But, in the recent case of “Jitubhai Babubhai Patel v. State of Gujarat”, (2005) 10 SCC 545, the Supreme Court came quite close to deciding this issue. The main question in that case was whether narco test can be conducted without the consent of the petitioner. However, in that case, the respondent State, on affidavit, took the stand that it did not want to conduct the said test without the consent of the petitioner. In view of this fact, the Supreme Court observed that insofar as the said case was concerned, the point in issue had become only academic and, therefore, the Court left it to be decided in an appropriate case.
At the same time, it is to be appreciated that there is no case till date in which the Supreme Court has held that these new scientific tests such as polygraph, narco-analysis or DNA fingerprinting etc. cannot be conducted against the accused himself.
In my opinion, going by the decision of the Supreme Court in the aforesaid case of “State of Bombay v. Kathi Kalu Oghad”, wherein scientific tests of more or less of a similar nature, such as giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body, were permitted against the accused in spite of the provisions of Article 20(3), in so far as the question of constitutionality under Article 20(3) is concerned, perhaps it may not come in the way of conducting the new scientific examinations such as polygraph, narco-analysis, or DNA fingerprinting on an accused also.
However, as mentioned earlier, there may be other issues of opposition against such new scientific tests, which we shall discuss now.
The most serious objection against such new scientific tests could be the reliability and authenticity of such tests.
In a recent case of an IPS officer (Maharashtra:1968) vide “Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra”, (2005) 5 SCC 294, the Supreme Court had the occasion to study the question of authenticity or reliability of a new scientific test such as the narco-analysis.
The case of “Frye v. United States”, 293 F 1013 (DC Cir) (1923), was quoted wherein it had been stated: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in the twilight zone the evidential force must be recognised, and while the courts will go a long way in admitting the expert testimony deducted from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs.”
Then, the Supreme Court quoted another US case of “Daubart v. Merryll Dow Pharmaceuticals Inc.”, 113 S Ct 2786 (1993), wherein a more liberal approach was adopted observing that for admissibility of the scientific evidence the court may consider the following:
(a) Whether the principle or technique has been or can be reliably tested?
(b) Whether it has been subject to peer review or publication?
(c) Its known or potential rate of error?
(d) Whether there are recognised standards that control the procedure of implementation of the technique?
(e) Whether it is generally accepted by the community?, and
(f) Whether the technique has been introduced or conducted independently of the litigation?
In two other US cases quoted in the said case, it was basically laid down that the gatekeeping obligation of the trial Judge to ensure the relevancy and reliability for admitting the evidence extended not only to scientific but also to all kinds of expert evidence.
In the case of “R. v. Watters”, 2000 All ER (D) 1469, it was held that the DNA evidence may have a great significance where there is supporting evidence, dependent, of course, on the strength of that evidence, and that in every case one has to put the DNA evidence in the context of the rest of the evidence and decide whether taken as a whole it does amount to a prima facie case.
In the aforesaid case of “Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra”, as the prosecution did not rely upon the report of narco-analysis before the High Court, the Supreme Court did not place any reliance thereupon.
And, accordingly, this question relating to the authenticity of narco-analysis still remains unresolved. However, I may hasten to add that in the recent case of Sharda v. Dharmpal, (2003) 4 SCC 493, the Supreme Court had taken a sympathetic view regarding the DNA evidence in matrimonial cases. But, one has to wait for a full-fledged judgment of the Supreme Court in so far as the criminal cases are concerned. An interesting situation may arise if the Parliament passes an Act (as it is proposed) to permit the admissibility of such new types of scientific tests without first fully establishing their authenticity, and the Supreme Court observes in future (on evidence being shown to it) that such tests are not fully authentic as of the date of such future judgment; such a situation may result into such proposed Act getting invalidated. Hence, I am of the opinion that instead of hurrying through such a legislation, the Government must first arrange wide-ranging consultations with experts and open public debates, and may even appoint an expert body (or may be ask the Law Commission) to examine the issue in detail and thereafter submit its report.
To conclude, in so far as the admissibility of scientific evidence under the new tests such as polygraph, narco-analysis, DNA fingerprinting, etc., is concerned, I am of the opinion that-
(1) The question of constitutionality of a proposed law relating to the admissibility of a scientific evidence if it is conducted on a witness (and not the accused) would not arise as the constitutional bar is only against the accused being compelled to be a witness against himself.
(2) The question of constitutionality of a proposed law relating to the admissibility of a scientific evidence if it is conducted on an accused himself is open right now in as much as there is no Supreme Court judgment in respect of such newer types of scientific tests. But, going by the existing decisions of the Supreme Court, as aforesaid, wherein scientific tests of more or less of a similar nature were permitted against the accused in spite of the provisions of Article 20(3), in so far as the question of constitutionality under Article 20(3) is concerned, perhaps it may not come in the way of conducting the new scientific examinations such as polygraph, narco-analysis, or DNA fingerprinting on an accused also.
(3) But, the most serious objection against such new scientific tests could be the reliability and authenticity of such scientific tests.
(4) Instead of hurrying through such a legislation, the Government must first arrange wide-ranging consultations with experts, open public debates, and get the issue examined in detail.
[Also see: Making scientific evidence admissible – Part 2.]
