The narco judgment that the media has forgotten
The media keeps forgetting an important Supreme Court judgment when it writes about narco analysis. Stories regarding its continued use continue to pop up in the national media with an uncomfortable frequency,
says PRASHANT REDDY THIKKAVARAPU (PIX: The Indian Express, August 2, 2014)
One of the few great fundamental rights judgments in our recent past was delivered in 2010 by the Supreme Court in the case of Selvi & Ors. v. State of Karnataka, where a bench of three judges led by the Chief Justice ruled against compulsory imposition of narco analysis or brain-mapping tests on alleged criminals. The court reasoned that such tests were a violation of the fundamental right against self-incrimination. Hereafter such tests could be administered only with the consent of the accused, and only after certain judicially mandated safeguards were respected by the investigating agency. Even after that, the information collected would be inadmissible subject to certain exception under the Evidence Act, 1872.
The Selvi judgment was a very important judgment because in the years leading up to it investigating agencies were having a field day with fancy new interrogation equipment, most of which were of dubious credibility and in violation of our most sacrosanct fundamental rights. The fundamental right against self-incrimination is meant to protect citizens by removing any incentives for torture by investigating agencies.
Strangely, however, the media keeps forgetting about this very important judgment. Just last month several national newspapers including the Economic Times and Indian Express, ran a story, (some on the front pages) about an application moved by Sorabbudin Sheikh’s brother before a court, asking it to issue directions for conducting a narco analysis on the BJP Party President Amit Shah. There was no mention of the Supreme Court’s judgment in Selvi and how it would have been close to impossible to administer the test on Amit Shah without his permission.
These stories regarding the continued use of narco analysis continue to pop up in the national media with an uncomfortable frequency, and while some are voluntary cases, the media is not really commenting on the remaining cases, preferring instead to quote only the investigating officer.
The bigger tragedy is that the issues raised in the Selvi judgment are rarely discussed by the media while discussing new interrogation techniques being used by civil investigating agencies. For example a report by Raj Shekhar Jha in the Times of India carries an almost upbeat story on how investigative agencies were using new tests like “suspect detection system” and “layered voice analysis” (LVA) to help “expose lies” and “bring to fore the “hidden criminal intent” of alleged criminals. Without citing to any scientific data, Jha claims that these tests are more accurate and reliable. Spicing up the story further, Jha reports that a hardened LeT terrorist started “singing about his training, intentions, skills, handlers and associates” after being administered these tests by the special cell. The cherry on the cake is Jha’s claim that the tests are legally admissible in a court of law. Thankfully his colleague Kapil Dixit, writing for the Allahabad edition of the Times of India on how the Special Task Force is acquiring the LVA as a part of its modernization program, informs his readers that the evidence is not admissible but that it assists in investigation to an extent. Neither story, however, touches on the legality of these new tactics and the safeguards mandated by the Supreme Court in the Selvi judgment.
The Supreme Court’s judgment in Selvi wasn’t limited to narco analysis or brain-mapping. The judgment was on the larger point of the fundamental right against self-incrimination in Article 20(3) which forbids the state from forcing an accused to testify against himself in a trial. These new tests described in the Times of India prima facie run the risk of violating the Supreme Court’s ruling. At the very least, you would expect the legal editor of the paper to flag the issue for a comment from a lawyer; or are fundamental rights too boring in the 21st Century?
(The writer is a Delhi-based lawyer.)
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