[Originally written on 12 November 2006]
In continuation of my previous article on the subject Making scientific evidence admissible, I wish to add a few very important points in this article. In this regard, I express my gratitude to Dr S. Krishnamurthy, a former IPS officer & retired DGP and currently an Advocate & scholar based at Bangalore, for his illuminating and thought-provoking views on the aforesaid article in an online Group. I take the liberty of quoting the essence of his views here so as to enable me to develop the subject further. Put succinctly, Dr Krishnamurthy’s opinion is that there is a subtle difference in new tests like narco-analysis and polygraph vis-à-vis the old tests such as taking blood-sample or fingerprints etc. He has rightly pointed out that this subtle difference lies in the old tests being more in the nature of physical tests with no oral testimonial part, whereas some of the aforesaid new tests do involve something more than the mere physical tests. He also rightly brought out the fact that this something more in the new tests does involve an element of testimonial compulsion in one way or the other, at least to some extent, or so does it appear. He has also mentioned that a good number of police officers are of the view that such tests should be permitted…, and also that public seems to clamour for such tests and at times they have been asking for such tests on even VVIP’s….
I admit in all fairness that in my aforesaid previous article, I missed the point of this subtle difference between the traditional scientific methods and the newer scientific methods. I further admit that I am also one such person who supports such tests provided they have a reliable scientific basis. My point is that if you don’t introduce new scientific methods (if they are reliable too) for doing investigation and for collecting evidence, then what do you want? Continue with the third degree methods which the police is always supposed to be using? Or continue with the unscientific methods of investigation or of evidence-collection? Or do nothing and have a sub-standard investigation, so that the accused persons can easily be let off? Who will pay the price for such an attitude? The society. Hence, in my view, there is no alternative to adopting new scientific methods provided, of course, if they are reliable.
Having said that, let me now expand on this subject. DNA fingerprinting is one such test where there is ample evidence of its scientific authenticity. Polygraph and narco-analysis tests…? Well, in respect of these two tests, I feel that one needs to do some more home-work before being able to say that they are fully reliable and authentic from scientific point of view. As of today, all I can say is that, without undermining the importance of these two tests, if they are not the products of exact science then at least they are the products of an empirical science. May be after some further study into this particular aspect, I may be in a position to come back with some definite view about the same.
In the next part of this write-up, I am proceeding only from the point of view of the constitutional bar under Article 20(3) of the Constitution of India on the ground of testimonial compulsion as well as the limitations imposed by the Anglo-Saxon legal principles, for the said two tests of polygraph and narco-analysis (in so far as the DNA test is concerned, this question is not of much importance because as rightly mentioned by you it is a physical test). Therefore, for the purposes of the following discussion, I am presuming that these two tests are scientific reliable (at least for the sake of this discussion). My views in this regard are as under:
1. In so far as the use of these two tests on a witness is concerned, there should be no problem. The Constitution does not debar it and so is the case with the Anglo-Saxon principles.
2. In so far as the use of these two tests on an accused in certain cases, wherein the accused voluntarily submits himself to such tests, is concerned, again there should be no problem. This is so because, in a voluntary submission, the element of compulsion is absent thereby removing the fetters of Article 20(3) of the Constitution. Moreover, under Anglo-Saxon legal principles also, there should be no problem for such voluntary submission, because these principles have long permitted even full-fledged confessions under Indian laws if they are voluntary.
3. Let me now cover the real cases of using these two tests on an accused when he is not willing for them.
4. I am of the opinion that law and justice do not always cohabit. Many a time, they are at the opposite ends of the spectrum. When law is complied with, justice might still not have been done (we see it in our law courts everyday). And, when justice is done, law might not have been complied with (to take some crude examples, the so-called justice done by a gang; or so-called justice delivered to a criminal eliminated in an encounter; in these cases, at least some people genuinely believe that justice was done, though means used might not have been lawful). So, law and justice are often at odds. This being so, I would like to take the side of justice at least in those limited cases wherein justice is delivered not by violating the law but by adapting the law. This is what is the essence of Article 142 of the Constitution, which gives power to the Supreme Court to do complete justice in any cause or matter pending before it. And, this power can be exercised by the Supreme Court by suitably adapting the laws or may be even despite the laws. Moreover, the basic reason for a large number of legal principles, i.e., the ratio decidendi laid down by the Supreme Court (Article 141) is by adapting the laws suitably to do justice or for the common good.
5. So, what it means is that laws have to be adapted for common good, with changing genuine needs of the society. Once it is accepted, my task becomes simple.
6. So, the first question which I ask myself is whether use of these two scientific tests is for the common good of the society? I do not know what others will say, but my answer will be an emphatic yes provided of course if their scientific reliability is guaranteed and which reliability I am presuming here for the purposes of the present discussion for the limited point of constitutional bar etc., as mentioned earlier.
7. And, once it is accepted that these two tests are for common good of the society, then I have no hesitation in saying that, if need be, the laws may have to be adapted to make way for these tests. When the question is that of the interests of the whole society, the law has to become a servant of the society and not its master. Priorities of the society as a whole will take precedence over those of the individual. If the Anglo-Saxon legal principles come in the way, they have to be adapted suitably, if need be. After all, haven’t we adapted some of these principles already in TADA, in POTA, and other similar Acts? What about the strict liability cases? What about the conclusive proof matters? Of course, I am not advocating an absolute departure from these well-established and well-meaning principles which have served the society now for quite long time. But, what about some consequential changes? What about some adaptations here and there? And that too, without sacrificing the basic philosophy thereof, by putting in place various safeguards and inbuilt safety mechanisms. I’ll revert to this question slightly later when I discuss about adapting the Constitution in special circumstances.
8. Let me now cover thread-bare that dreadful phrase testimonial compulsion which is barred qua an accused, under Article 20(3) of the Constitution. Let me do some hair-splitting of each of these two words separately.
9. Consider the word testimonial first. Admitted, it talks of an oral account of something. But, if I may be permitted to stretch it a little, my question is oral account of which mind – a conscious mind or even a sub-conscious mind? I feel that oral accounts requires a conscious effort on one’s part to think and reply by making use of one’s mental facilities. So, a conscious mind is pre-supposed. But what about asub-conscious mind from where information is taken out more in a mechanical manner from the stored information in the hard-disk of human brain (much like the blood sample is taken out from the body) and not in any conscious form of there being any effort to think and reply? Will it still amount to testimonial if some information is taken out from a person in a mechanical manner from a sub-conscious state of mind after administering some so-called truth-syrup in a narco-analysis test? So, there is a scope for dong a twisting the words exercise on the word testimonial a la the method often used in good faith by the Supreme Court to lay down a particular legal principle by adapting the words or laws.
10. Now, let me try to use scissors on the word compulsion. Can we give a meaning to this word in the sense of some threat, or force, or coercion? Fortunately, I am fortified in my view here by the following observations of R.M. Sahai, J., in the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569 : 1994 Cri LJ 3139:
“The word, compelled ordinarily means by force. This may take place positively and negatively. When one forces one to act in a manner desired by him it is compelling him to do that thing. Same may take place when one is prevented from doing a particular thing unless he agrees to do as desired. In either case it is compulsion.”
Let us take it further from here. Blood samples, finger prints etc. are already being taken from an accused even against his wish. His medical examination is already being conducted even against his wish. Similarly, one should be able to possibly administer a truth-syrup to the accused; and there should be no problem here from the words compulsion or compelled. Now, once under the effect of the truth-syrup, the accused starts speaking up on his own – no physical force is used in the sense of meaning of the words compelled or compulsion. Accordingly, where is the question of compulsion being resorted to while conducting a narco-analysis test or at least can’t we adapt the words in this manner?
11. Same will be the case with polygraph test. One is not compelling the accused in the sense of using any “force” as what is being done here is using a physical method of putting some electrodes on his body (much in a similar manner like taking a blood sample or urine sample by physical methods) and then allowing the accused to answer the questions and analysing them.
12. This discussion leads us to the possibility of adapting these two words testimonial as well as compulsion in a manner so as to serve the cause of the common good of the society. Therefore, the phrase testimonial compulsion may perhaps not be applicable to the said two tests of narco-analysis and polygraph as well. Let us hope for a positive judgment of the Supreme Court on this aspect.
13. Contents of this paragraph are without prejudice to the other discussion. Dr Krishnamurthy (please see above) had also referred to the Anglo-Saxon concept of “not drawing evidence from the accused by force or other ruse”. I am on the word evidence here. I’ll go to the extent of saying that even if we follow this principle in letter and spirit, it’s OK; we’ll not use the information drawn from the accused (using these new tests) as evidence, but can’t we make use of this information at least for collecting further information or for getting some leads or clues for the investigation? What is the harm if such information is collected from the accused with the help of such tests, but the same is used only for the purpose of helping the further investigation but not for adducing it as evidence in court? In any case, in a large number of cases, we do record the oral statement of the accused, we do interrogate him, we do use the provisions of S. 27 of the Evidence Act (which makes the limited aspect of “discovery of a material fact” from the accused an admissible fact). Much of such information collected from the accused is not submitted to the court as evidence. But, nonetheless, such information is useful for some other purposes. In a similar manner, can’t we use these two tests also just for the sake of collecting information or leads but not for using the same as evidence? And, in fact, the constitutional bar under Article 20(3) is also only for compelling an accused “to be a witness against himself”. But, we are just collecting information. We are not using this very information as evidence. So, where is the question of “making him a witness against himself”? In any case, as mentioned above, when the bar does not apply to recording the statement of the accused in a normal manner, how can it become objectionable if a similar statement is recorded under the conditions of a test if no compulsion is inherent in the test as explained above? After all, if the objection was on the ground of testimony, then recording a normal statement is also testimony but which is not banned. So, I feel that again from this angle also, if the information is not to be used as “evidence” but for the purposes of information only, there should be no problem either from Article 20(3) or from the Anglo-Saxon principles.
14. Again, without prejudice to other submissions, such scientific tests may be made admissible, but the question of “how much weightage?” can be left to the court concerned or even better can be made subject to some rules of caution or prudence. For example, it may be possible to lay down that while the result of such a scientific test is admissible in evidence, it shall be used only for the purposes of corroborating other facts or that a conviction shall not be based solely on such an evidence or that it shall not be the basis of a conviction by itself unless it is corroborated in material particulars by independent evidence.
15. This brings me to the last point of this discussion. All said and done, suppose the Court still holds that these two tests are barred under the protection guaranteed to the accused under Article 20(3). OK. Is it the end of the road? The answer is an emphatic No. Can’t we amend the Constitution? For the sake of common good of the society? In a reasonable and limited manner? With some safety mechanisms in place? Haven’t we amended the Constitution on 93 occasions already? What was the 42nd Amendment – wasn’t it called a mini Constitution in as much as it amended a very large number of provisions of the Constitution in a very cavalier manner? Is the Constitution so sacred that it cannot be touched or it cannot be changed even if the future generations require it genuinely? Can the old (or the dead) generations bind all the future generations in perpetuity with whatever Constitution they framed? Is the Constitution meant for the present living generations or for those dead generations or persons who are no more a part of the society? I am a strong believer of the principle that a Constitution must be amendable in all respects – albeit with varying degree of rigidity of method depending upon the importance of the provision concerned. I have some strong views here (in fact, I have completed writing a book on the subject of Constitutional Amendment and it is likely to be published shortly). Therefore, what I would like to submit is that if the greater interests of the society are to prevail or if the common good of the society is to be ensured, the Constitutions are required to be amended sometimes in good faith and for genuine purposes.
15. So, if need be really so genuine, the Constitution may have to be amended – at least in a limited manner without compromising too much!
To conclude, instead of depending on some other shoddy methods of investigation, let us try to make use of the scientific methods, wherever feasible without compromising on the basic philosophy of a just and fair criminal justice system.
