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Constitutional Validity of Poly Graph Test

CHANGE IS THE RULE OF JUSTICE

Forensic Science in criminal investigation and trials is mainly concerned with materials and indirectly through materials with men, places, and time. Among men, the investigating officer is the most important person. Infact, it is he whose work determines the success or failure of the application of forensic science in the processing of a criminal case. If he fails to collect the relevant correct evidence, allows them to be contaminated or does not provide correct samples for comparisons, the findings of a forensic scientist will be useless; nay, they will be supportive to the culprit. Material are identified and compared with the processes of forensic science. They establish the presence or absence of a link between the crimes, the time of occurrence. The important materials, therefore, form the various chapters of the book. In addition, the place of occurrence being the most important source of materials has also been discussed.

For as long as human beings have deceived one another, people have tried to develop techniques for detecting deception and finding truth. In today’s world, the scenario of justice, the traditional sources of proof, eyewitnesses account, confessions have gone awry. The trials take just too long to keep the witnesses from turning hostile and criminals are turning cleverer and more scientific. It is important that the prosecution agencies rely on something more authentic, more concrete and more productive in terms of convictions without the police having to resort to the third degree methods that not only violates fundamental human rights but also fail to produce positive results most of the time. There has to be something that is available; objective, and hence not prove to the whims of the witnesses. The answer is provided as science as by scientific evidence (lie detector test) is more or less exact far more reliable and does not turn hostile under threats. Lie detection took on aspects of modern science with the development in the 20th century of techniques intended for the psycho physiological deception, most prominently polygraph testing. The polygraph testing or instrumental measures several physiological processes (ex. heart rate) and changes in these processes. From the charts of those measures in response to questions on a polygraph test, sometimes aided by observations during the polygraph examination examiners infer a psychological state, namely, whether a person is telling the truth or lying. However, in India, we do not seem to realized how vast is the potential of lie detector science, have been far less than successful in developing a temperament in our police to apply scientifically viable evidence, pain stakingly begotten after long arduous hours in the court room.

It is frequently suggested that the polygraphy or the lie detector test works because of the fear of offenders of being found to be lying. Polygraph or lie detector has a variety of uses. First of all it can identify the guilty people, second is it can establish the truth of statements made by witnesses or informants. Third is it can eliminate suspects. Fourth is it can save money by shortening investigations. There is urgent and wide spread need for the application of forensic science in the criminal justice delivery system. The present day scenario of crime investigation and prosecution of criminals, in India it is a sad sight. A large percentage of the trials, in heinous crime ultimately, end in acquittals. The official figure (1998) for the acquittal is 93% whereas unofficial figure is even above 96%. It is estimated that the prosecution agency spends lakhs of rupees in each trial. Thus, not only a dangerous criminal goes scot-free but the huge amount of public money is also wasted. These frequent acquittals also embolden the criminals and escalate crime and multiply criminals. 

In the UK, where one of the accused was facing trial for eleventh murder of his own father this time. He was acquitted in the previous ten murders. It shows the need of lie detector test. 

The need for the application of science in the dissemination of justice is pressing. Many factors are responsible for the same, which will be included in this essay after constitutional validity. Constitution is an umbrella in which lot of rules, norms are kept to regulate human behavior and for the welfare of the human mankind as well as for the upliftment of society. Today when our country is in 21st century we must understand the validity of polygraph or lie detector test to keep the faith of every individuals on court of law and on court of justice.The main legal provisions which govern the expert evidence (LIE DETECTOR TEST), are in Indian constitution, Indian evidence Act; 1872, Code of Criminal Procedure; 1973 and Identification of prisoners Act.

The main provision in the Indian Constitution is the Article 20 (3). It states, “No person accused of an offence can be compelled to be a witness against himself”. The problem, which arose from the enactment, was legion. Could a person be forced to give fingerprints, footprints, photographs, measurements, handwriting, etc. The constitutional bench of the Supreme Court has solved the problems since through a landmark decision. It held that the above type of clue materials become evidence only after their evaluation. And the evaluation instead of helping the prosecution may help the accused. It can be seen by reading the facts of the case state of Bombay v kathi kalu, 1961(2) cri LJ 856 (sc).

Threatened with being forcibly subjected to the lie detector tests by the police, certain persons petitioned the Bombay High Court to declare such methods illegal and violation of their fundamental rights. The right against forced self-incrimination, widely known as right to silence is enshrined in article 20(3) of the Indian constitution as well as in the Criminal Procedure Code. It has its equivalents in the Magna Carta, the Talmud and the law of almost every civilized society. The Bombay High Court had to decide whether forcing the petitioners to undergo these tests would violate their right to silence and compel them to furnish evidence against themselves. While rejecting the petitioner’s claims and allowing the police to subject people to these tests, the judgment makes certain far reaching pronouncements which it is respectfully submitted, are legally wrong, contrary to authority and logically unconvincing. In the course of the judgment, justice palshikar for himself and justice kakade drew a distinction between a “statement” (made before a police officer) and “testimony” (made under oath in court). He held that the right against self-incrimination applies only to court proceedings and not to police interrogations.The claim that the protection of Article 20 (3) operates only in the courtroom and not in the police station had earlier been rejected in M.P.Sharma's case by a very strong constitutional bench of eight Supreme Court judges and again thereafter in kathi kalu oghad's case by a constitutional bench of 11 supreme court judges. Justice palshikar held that compelling a person to undergo the test would not violate the rights, as the forcible extraction of information simplicitor did not necessarily mean that the information would be incriminating. According to the learned judge, whether the extracted information was incriminating could only be ascertained. If it was incriminating, it was not admissible as evidence in a court of law. He therefore held that the petitions were premature, meaning thereby that they should be filed only after the incriminating statements forcibly extracted from the petitioners are sought to be used as legal evidence. It is unlikely that such reasoning would be accepted by anyone who values his personal liberty. On the basis of above arguments we can understand that synonym of Article 20(3). The question arises here that why police are blamed therefore not reaching or helping in justice. If they cant get freedom to get the truth then it will be tougher to get justice. There should be personal liberty to every individual but when any person comes into the frame of suspect the police has every right to go into it and search for the truth. Today the gravity of crime, act to perform crimes has been changed so it is important that scientific evidence like lie detector test should be used. For the law against compelled self-incrimination to have any substance, it must apply before the person is compelled to incriminate himself. In the CrPC, the legislature has guarded a citizen's right against self-incrimination. Section 161(2) states that every person is bound to answer truthfully all questions...put to him by (a police) officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture. Evidently, it has been left to the person being interrogated to decide whether the answer to a question would be self-incriminating and, if so, to withhold that answer and keep silent. It would appear that the learned judge has not considered this provision. This notwithstanding, it is respectfully submitted that a judicial order cannot take away what has so unequivocally been given by parliament and the constitution. But the question arises here that why should our parliament and constitution give right to those persons who are violating peace and order. Those persons who are rapists, murder, barbaric act in criminal nature...why should they get any right and why their should not be lie detector test on them and why polygraphy should not be valid in INDIAN scenario.

Moreover, by then the information, even if untrue, is in the public domain, your personal liberty and privacy have been violated, your body has been injected with narcotics and information has been forcibly extracted from you. This is true but it should be in law but is should be used depends upon the gravity of crime. If a person is lying and he has committed murder or any heinous act or against the security of a country why there should not be these tests? If any person is committing anything against the peace of country there is no gain of talking of his rights. Every person must perform their duties.  In Nandini Sathpathy's case involved facts very similar to the present case. The petitioner (a former) chief minister of orissa) had complained that she was being prosecuted for her refusal to answer police questions about a corruption case lodged against her. She claimed that her assertion of silence and refusal to answer questions was well within her rights under article 20(3) and section 161(2) CrPC prosecuting her for silence, she argued amounted to compelling her to make self incriminating statements. Here it depends upon the nature of corruption. If the lady has committed simple mistake or not a heavy corruption then its ok otherwise why there shouldn’t be any scientific use like lie detector test if any person is committing heinous act. We know our politictians; they can ruin our people and sustain their lives then why not there be any constitutional validity of lie detector test. There must be article 20 (3) but there is no loss in using lie detector test depending upon the gravity of facts of the cases. If the criminals are not doing their duty why should they get any right? It can be difficult but to bring peace, to check security of a nation there should be use of scientific evidence.

There is another aspect of the division bench's judgement, which is a mater of cocern. It held that these tests involve "minimal bodily harm."This statement appears to be unfounded and contrary to medical opinion and practice. Subsequent studies have vindicated this view; infliction of bodily harm is an offence and even if minimal, is punishable by three months imprisonment (section 352 IPC). Hurt is defined as any pain, disease or infirmity."Injury"is defined in as "any harm whatever illegally caused to any person in body, mind, reputation or property"(sec44). Inflicting hurt (sec 323), causing hurt to extort incriminating information (sec 330), causing hurt by a substance harmful to the body (324) or administering any stupefying, intoxication or unwholesome drug (sec 328) are offences punishable by imprisonment from between one to ten years.Therefore,causing even "minimal bodily harm" through the compelled administration of a narcotic is a serious offence further aggravated when it is committed by police officers to extort incriminating information. It denudes the right to silence of all significance and strips the right against forced self-incrimination of all meaning. It also empowers the police to commit illegal acts and exempts them from the rule of law.

Another act which comes for the constitutional validity of lie detector test is The Indian Evidence Act- (sec.45). This is the most important section of the Act vis-à-vis polygraphy. It states” when a court has to form an opinion upon a point of foreign law or of science or art, or as to the identity of handwriting or finger impressions, the opinion upon that point, of persons specially skilled in such foreign law, science or art or in questions as to the identity of handwriting or finger impressions are relevant facts. Such persons are called experts. There has been a lot of confusion about what contitutes science. Contradictory judgments have cluttered the earlier case law. But by and large the recent supreme court judgment State v Chaudhary AIR 1996 SC 1491 has not only eliminated the absurdity relating to typescript identification but is has also provided the guideline for the induction of new types of scientific evidence (Lie Detector Test, Brain Printing, Etc). The question arises here that who are experts then. Section 45 indicates that who are experts or we can say in another words as Specially Skilled persons! Special skill has not been defined but by convention is it acquired through Basic education, Training, Experience, Research, and Participation in scientific gatherings. The second most important section relating to expert evidence is section 73 of Indian Evidence Act. This section specifies what comparison material for disputed handwriting signatures or seals (or for finger prints) can be utilized by courts. This section has given headache all round. The main controversial points are: Should the comparison material be examined only by the judge with or without the assistance of the experts. This controversy has been settled by the Supreme Court in a landmark judgment of Ajit Sachit Muggvi V State Of Kerala, AIR 1997 SC 3255. They have decided that the assistance of a handwriting expert should be obtained as a matter of prudence. At what stage can the court order a person to give specimens: at the investigation or at the trial stage? This aspect is still in the melting pot though Supreme Court has ruled that the court cannot order taking of specimen if the case is not pending trial before it like in the case of Ram Babu Misra V State, AIR 1980 SC 791. Section 46 is about Facts bearing upon opinions of experts. Section 51 is about grounds of opinion when relevant. Section 159 is about Refreshing Memory.  Evidence Act plays an important role in the Constitutional Validity of polygraphy. Especially section 45 and section 46 is a key. We can see that here lot of emphasis has been given on experts and few cases are enshrined in our constitution in which judges have taken use of experts. As every coin has two sides it had demerits too but experts can be given some power so that they can reveal justice and truth from the criminals. Another law is Code Of Criminal Code, 1973 in which the main sections are related to expert evidence are section 292 and section 293. Section 292 is applicable to only mint master and other currency officers. Its contents are similar to those of section 293,which has wider applications. Sec 293 states that any document perporting to be a report under the hand of a government scientific expert to whom this section applies, upon any mater or thing duly submitted to him for examination or analysis and report in the course of any proceedings under this code, may be used as evidence in any inquiry, trial or other proceedings of the code.  The section has some features like it specifies the government experts, who are exempted from personal appearence. Describes modes for personal attendance of the experts for additional evidence, etc; for cross-examination or additional related evidence. It fixes no limitation on the nature/extent of the contents of the reports. One important Act is The Identification of Prisoners Act. The sections 2,3,4,5 & 6 of the Act are relevant to the expert evidence. They provide legal sanctions for obtaining evidence by using lie detector test or by using any scientific method from the suspects/accused/convicts. Lie detector test is becoming indispensable in the dissemination of justice because of the failure of the old order, excellence and reliability of its tools and techniques and the ever availibility of the wherewithal of its assistance. It should be adopted on a much larger scale that it is being adopted, if our criminal justice system has to serve the society effectively. We saw four legal bags through which we can see the constitutional validity of polygraphy/lie detector test/scientific methods or we can say as for Forensic science. All this play an important role in society because today we can’t overrule the use of scientific methods and our many cases have shown the importance of it. Now we will see certain political kind of cases.

Congress leaders must undergo lie detector test: BJP. Today even the political parties are understanding the value of it. On July 12,2004 demanded that the CBI conduct lie detector test on many leading political members of congress. It was a Telgi's case. On December 15, 2004 in the newspaper of Mumbai news came that Telgi to undergo lie detector test. Abdul karim telgi, the alleged mastermind behind the multi crore fake stamp racket, and several others arrested along with him are to undergo lie detector tests, a court ruled today. (Newspaper editing). A special court constituted under the Maharashtra Control Of Organised Crime Act (MCOCA) gave permission to the Special Investigation Team (SIT) probing the fake stamp racket, to conduct lie detector tests on nine persons, including Abdul Karim Telgi. It is important that the CBI or Police shouldn’t take gain of it but they need certain powers in them to reach at justice. How can they prove justice if everyone will look upon them with doubt, we the people of India need to understand the value of duty and do something and promote scientific methods because every politician will make laws for their welfare not for the ruin of individuals. In May 13,through

Indian Express a news came that "Delay may hamper lie detector test in Shivani murder case". Several forensic experts and police investigators point out that though shivani was murdered on January 23,untill last week investigators hadn’t been able to get hold of a lie detector. The delay, they say, will possibly cloud or dilute a lot of important information. Says an officer investigating the case that we are sure we will establish that one or more persons are lying, or holding back i9nformation related to shivani’s murder. He adds Of course the results of lie detector test will not be admissible in a court of law. The report is merely to facilitate investigations. But he also said that in a city like Delhi, where there is lot of crime, which even raises questions in the parliament, a lie detector test is very crucial to speed up investigations.

Why there shouldn’t be lie detector test and why it is not admissible in court of law? When the Police, CBI all give their lot of time and at last our court says that it is invalid, it’s really very poor. If a person is catched by this method why there shouldn’t be any law to make use of lie detector test to speed up the investigations and justice. A Delhi Police Chief Kakkar said that before we put a person to the lie detector test, we almost always know where he is lying. The lie detector test is meant to be a confirmation of these doubts. When we frame the questions, with the help of psychologists, we keep this in mind. In another case “A sub-inspector accused of killing constable to take lie detector test”. Accused of killing a woman constable and also booked under the Prohibition Act, PSI rakesh pathak of Kadi Town police station took lie detector test. Director General of Police A K Bhargav said we are conducting the lie detector test, as we do not want such instances to be repeated. All these cases can teach us that how much this test is important and can play an important role in the development of the society and in controlling of peace and orders. One aspect can come that certain people will say that it is Violative of Article 21 of the Indian Constitution but we should understand the value of it and grant this method to speed up the criminal justice system of our society. Now we will evaluate our Court and its systems. The attitudes of the courts vary tremendously.

* Some courts under rate expert evidence. They feel that it is weak evidence.*Some courts are hostile towards the evidence. They feel that the expert assumes the functions of the court.*Some courts fear the expert evidence. They feel they cannot understand the evidence. They either ignore the evidence. They either ignore the evidence or accept the ipse dixit of the expert.*Some courts believe that the evidence is not their worry. The counsels should understand the argue about it. The court should decide the case on their arguments alone.

Such attitudes are undesireable. The scrutiny of lie detector test by the court is necessary. First the evidence can turn the tables. A suspected criminal may prove to be an innocent person or vice versa. Second, most of the lawyers on both sides feel shy of evidence. They may fail to properly present or critically appraise the evidence, which may lead to the miscarriage of justice. Third, a clever lawyer may exploit the general lack of knowledge to twist the evidence to his advantage and misuse it. Fourth, the prosecution counsel is interested in the prosecution case only. He will expose only those aspects of evidence, which are useful to the prosecution case and goes no farther. Fifth, the defence counsel, on the other hand, limits his probes to only those aspects, which are beneficial to the defence case. In other words it means his efforts would be to demolish the prosecution evidence. Thus it is the judge only who is interested in real justice. He should, therefore ascertain the facts, assimilate them and utilize them in the dissemination of justice. The newer generation of the judges should especially be aware of their responsibilities in this regard as in the future the expert evidence will play more decisive role. It will be used more frequently, almost in all cases. The scientific methods in the detection of the crime are daily improving and are becoming accurate, sensitive and specific.

Reaching to the conclusion of Constitutional validity of polygraphy (lie detector test) we can combine the thesis of above arguments and can say that the gravity of crimes has been changed. The reasons are the quick means of transport and the high density of population in cities have facilitated the escape from punishment after the commission of crime. The criminal can hide himself easily these days. The individual is becoming self-centered. He especially in cities, don’t not know even his next-door neighbors. Thus even if the neighbors are killed, the murders come to light sometimes only when the bodies putrefy and emit foul smell. The technical knowledge of an average person has increased tremendously in recent years. The criminal is using science. The investigating officer therefore needs scientific methods to combat the modern scientific criminal and the answer is lie detector test. It can help in the criminal system of India and give upper hand in the development of the society. If we do not adopt lie detector test or other scientific evidence it will be easy to say that we are giving way to criminal to run away. The time has come when we should become smart and court grants the validity of polygraphy. Its true that there can be misuse of it but every coin has two sides so lets give one chance to expert person to bring truth and justice through lie detector test.

About the Author

This is Gyan Prakash, an Advocate working in a law firm.

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