Late on the night of Friday, 2 October, the Uttar Pradesh government issued a press note in which it stated that, following the first report of the SIT constituted to probe the Hathras incident, chief minister Yogi Adityanath had issued orders suspending several police officers involved in the case (including the SP).
A line at the bottom of the press note says that in addition to these police officers, polygraph and narco tests are to be conducted by the Investigating Officer of the complainants (vaadi) and accused (prativaadi) relating to the case.
Essentially, the Yogi government has ordered lie detector tests and truth serum tests to be conducted on all people connected to the case.
The fact that this direction applies to the family of the victim in the alleged gang-rape and murder has caused considerable controversy, especially given the way they had been locked in their homes for the last couple of days, and were stopped by the police from performing the last rites for the victim, whose body was burned by the police in the middle of the night.
However, the problems with this direction go even further: for over 10 years now, imposing these tests on any person (even the police officers in this case) has been illegal. On what basis, therefore, is the Yogi government ordering such tests to be conducted?
The Supreme Court’s Decision in Selvi vs State of Karnataka
Polygraph tests have been around for a while, but narco analysis became a household name in India after its use at the Bangalore Forensic Science Laboratory in the early 2000s.
The technique – getting a person to answer questions after being injected with sodium pentohal or sodium amytal – was used on crime dons like Arun Gawli and Abu Salem, counterfeiter Abdul Karim Telgi and accused Naxalites like Arun Ferreira.
While the use of these techniques to get answers from criminals was initially feted, questions soon began to be asked about whether or not using them on people without their consent, was a violation of the right against self-incrimination under Article 20(3) of the Constitution of India.
Some of those being asked to take these tests filed challenges in the courts on this basis. Arun Ferreira, who had eventually been acquitted of all charges against him, accused the assistant director of the Bangalore FSL of fabricating the results of the narco-analysis on him. This same assistant director, given the monikers ‘Doctor Narco’ and ‘Narco Queen’ – was eventually disgraced in 2009 after being sacked for forging her educational certificates to get the job.
The Supreme Court eventually heard a set of challenges relating to the involuntary administration of narco analysis, polygraph examinations and Brain Electrical Activation Profile (BEAP) tests.
On 5 May 2010, the court pronounced a game-changing decision in the case of Selvi vs State of Karnataka, in which it held that the compulsory administration of these tests violated the ‘right against self-incrimination’ (Article 20(3) of the Constitution) and also violated the standard of ‘substantive due process’, which is part of the right to personal liberty (Article 21).
The court also held that forcing people to take these tests “is an unjustified intrusion into the mental privacy of an individual” and would amount to “cruel, inhuman and degrading treatment”. Relying on the results from these techniques would conflict with the ‘right to fair trial’.
“In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.”The Supreme Court
The judgment makes it clear that this doesn’t just apply to accused persons, but witnesses as well (see paragraph 221). Therefore, when it comes to the Hathras case, the tests cannot be conducted forcibly on anyone, from the accused to the victim’s family to even the police officers, despite their shambolic conduct.
The Supreme Court judgment is very clear that there is no circumstance in which this rule can be ignored. The administration cannot try to claim there is some compelling public interest which allows them to get around the rule, whether public order or national security or anything else.
Note that this applies not just to narco analysis, but polygraph tests as well – remember the UP government’s press note orders both to be conducted.
What If the Tests Are Taken Voluntarily?
The only way for the Yogi government’s order to not fall foul of the Supreme Court’s judgment is if the polygraph and narco tests are not compulsorily administered, and only conducted with the consent of the subjects. Unfortunately, the press note does not make this qualification.
Given the heavy-handedness with which the administration has acted, it is difficult to imagine them asking for consent before complying with an order from the chief minister.
Even if any of the people agree to the narco and polygraph tests, there are some important qualifications to this.
First, is that even if they consent to the tests, the results by themselves cannot be admitted as evidence in a court of law because, as the Supreme Court held, “the subject does not exercise conscious control over the responses during the administration of the test.” Material that is subsequently discovered after a voluntary test, may be admissible as evidence.
Second, the administration of the tests can’t be held to be voluntary just because the police claim it is. The Supreme Court held that a full-fledged procedure similar to the National Human Rights Commission’s guidelines for polygraph tests has to be “strictly adhered to”, which includes the following steps:
- If a person volunteers for the test, they have to be given access to a lawyer, and the physical, emotional and legal implications of such a test have to be explained to them by the police and their lawyer.
- If the person still agrees to consent to the test, their consent is to be recorded before a Judicial Magistrate.
- During the hearing before the Magistrate, the person needs to have legal representation. The person has to be told in clear terms during this hearing that the statement made shall not be a ‘confessional’ statement, but will have the status of a statement to the police.
- The actual recording of the test shall be done by an independent agency (such as a hospital, not a police lab) and is also to be conducted in the presence of a lawyer.
- A full medical and factual narration of the manner in which information was obtained during the test has to be placed on record.
The Investigating Officer in the Hathras case will have to strictly follow these guidelines when implementing the order from the chief minister’s office. These procedures should ideally have been reiterated in the order from the government – although ideally speaking, the chief minister is not supposed to be giving directions for how an investigation is supposed to proceed in the first place.
Another complication for the IO is that the Allahabad High Court has already ordered the police officers to appear before them on 12 October to explain their actions, and has also asked the family of the victim to be present to provide their side of the story.
After all the criticism that it has received for the handling of the case, the Yogi government may be trying to send a message that it is taking strong action. It must not forget that while doing so, it too must follow the law – it cannot just make up its own rules. As the old saying goes, “Be you never so high, the law is above you.”
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