529

CONSTITUTIONA L AND EVIDENTIARY

VALIDITY OF NEW SCIENTIFIC TESTS

LAW IS dynamic and not static and, therefore, as society evolves, law
has to keep in consonance with the changing social order. After all,
law is the cement of the society. And the judiciary has the responsibility
of interpreting the law for the greater good.1 Therefore, it is imperative
that the judicial mind must stay in touch and keep in step with the
advancement of humanity. To combat organized crime, its detection,
investigatio n and prevention methods have to be employed
synchronously. As what is sauce for goose is sauce for gander. 2 If
criminals can use technology as a shield, it will render law enforcement
agencies powerless to deal with them if the latter is also not made
technology oriented in a suitable manner. Therefore, in the context of
the changing organized crime scenario, one must ponder over the validity
of the scientific tests that may be used in answer as effective tools to
combat the organized modern criminal who is taking shelter behind and
making full use of technology. Krishna Iyer J remarked, “the courts
self-criminate themselves if they keep the gates ajar for culprits to flee
justice under the guise of interpretative enlargement of golden rules of
criminal jurisprudence”. But the question that arises is – can the end
justify the means? 3 Hence, the issue of constitutional validity and
evidentiary admissibility has to be looked into and given some thought.
The paper is an attempt to understand the constitutional validity and the
evidentiary implications of three scientific tests viz. Polygraph (lie
detector), P-300 (brain mapping) and Narcoanalysis (truth serum). A
concerted effort has been made to analyze the tests in light of article
20(3) of the Constitution of India.

Scientific tests for criminal investigation

Polygraph: Commonly known as the lie detector, this test is an

examination, which is conducted by various probes attached to the
body of the person who is interrogated by an expert. The variations in

1. Philosophy propounded by Jeremy Bentham and John Stuart Mill.

2. Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238 at 242.
3. Nandini Sathpathy v. P.L. Dani & Anr., AIR 1978 SC 1025 at 1032.

www.ili.ac.in © The Indian Law Institute

530 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 4

the pulse rate, the heart rate, the skin conductance, the blood pressure
etc. is measured. The underlying theory of this test is that when people
lie they also get measurably nervous about lying. The heart beat increases,
blood pressure goes up, breathing rhythm changes, perspiration
increases, and so on and so forth. In the very beginning, a baseline for
this physiological characteristic is established by asking questions
whose answers the investigato r knows. Deviation from this pre-
determined base line for truthfulness, measured by the lie detector, is
taken as a sign of lie. It is to be noted that this test does not involve
any direct invasion of the body. The test basically produces a graph of
multiple physiological parameters and hence the name polygraph. In
this test, the polygraph taken gives a reading of the deviation of the
physiological parameters from the baseline for truthfulness, which is
determined by the neutral questions asked at the very beginning. The
graph that is produced after the interrogation with target questions,
aimed to make a possible liar uneasy in his physiological reactions, is
examined by an expert who would then explain these reactions in the
court and also to the law enforcement officers to aid them in their
investigation. His conclusion, which would flow from his reading of
the polygraph, may be admitted or rejected by a judge on appreciation
of the statement and the objections raised thereto by the defense and
other experts. In case of a polygraph test, the subject may or may not
answer the questions. His physiological reactions and the response of
his answers to the questions are recorded on the polygraph and the
analysis of that is sought to be tendered as evidence if and when the
occasion arises.4
P-300: The second test is the P-300, which is better known as the
brain-mapping test.5 In this test of brain mapping the subject is first
interviewed and interrogated to find out whether he is concealing any
information. The person to be interrogated is made to wear a headband
with sensors that measure electrical brain responses. The
encephalograph equipment that is used has multiple electrodes that are
connected to the scalp by using a gel and thereafter the map of the
brain can be taken as is done by neurosurgeons in order to study the
brain map, which records the electro-chemical activity in the brain. As
per Dr. Farwell, 6 the sensors detect memory through an encoding
related Multifaceted Electroencephalographi c Response (MERMER),

4. Ramchandra Ram Reddy v. State of Maharashtra, Cr. W. P. No. 1924 of 2003

decided on 05:03:2004, Bom HC: MANU/MH/0067/2004.
5. Developed and patented in 1995 by Lawrence A. Farwell, Ph.D., Chairman
of the Brain Wave Institute in Fairfield, Iowa, and former Harvard University
research associate.
6. Ibid.

www.ili.ac.in © The Indian Law Institute

2007 ] NOTES AND COMMENTS 531

which is emitted when the subject’s brain recognizes a particular word

or picture. The brain sends out a MERMER brain wave when the brain
has something familiar stored in it, which triggers a response. An
innocent subject, on the other hand, will not emit a similar wave
response. Computers analyze the brain wave responses and determine
whether facts relating to the crime in question are stored in the suspect’s
brain. The activation of the brain is based on associated memory and is
carried out by presenting a list of words to the subject. There are three
types of words in the list — part I consists of neutral words, which
have no direct relationship with the case. Part II consists of probe
words directly related to the case about which all subjects have had
opportunity to come to know during the course of events related to the
case. Then comes the target words in part III, which consists of
words that are not contained in the previous two lists of words. The
words in this part are based on confidential findings, which the subject
does not know about. The recording of this test is done by acquiring
the response through 32 channel EEG-ERP Neuro Scan recording
system. The 32 channel electrodes are placed according to international
system, and 32 discrete electrodes are placed over the scalp directly.
While conducting this test, twice, by presenting each word in three
parts randomly, the subject is instructed to relax (closed eyes) and
listen to the words presented in the auditory mode. This test does not
expect any oral response from the subject. The conclusion is drawn by
the experts after the test has been conducted and the map is derived.
The test indicates the possession of the knowledge about the relevant
issue, which is helpful in the investigation and collection of evidence.
Narcoanalysis: This test is the most controversial of the trio and is
better known as the truth serum test. The test is conducted by injecting
3 grams of sodium pentathol 7 dissolved in 3000 ml of distilled water
and the solution is administered intravenously along with 10% of dextrose
over a period of three hours with the help of a qualified anesthetist.8 It
is a barbiturate (thiopental sodium), making the neural membrane more
permeable to chloride ions, resulting in general inhibition, starting with
the cortex and working down to the lower brain regions with increasing
biological effect. At an appropriate dosage, there is just enough neural
inhibitory effect to create an alcohol-like ‘disinhibition’ of normal
behavioral restraints. A higher dosage, but not high enough to cause
unconsciousness, may create a stupor and inhibit independent thought
and action to a greater extent. The result is that one becomes more

7. “Yellowish-white hygroscopic powder. Alliaceous, garlic-like odor. Soluble in

water, alcohol.”
8. Preparation is covered by US Patents 2153729 (1939), 2876225 (1959).

www.ili.ac.in © The Indian Law Institute

532 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 4

suggestible and less willful. An operator may then create a context for
either recalling memories or constructing new ones. Sodium pentathol
can be used in conjunction with hypnosis as a truth serum. Essentially,
the drug is used to reduce resistance to the hypnotist, who then has to
frame questions and evoke responses in a way likely to produce accurate
answers. However, this poses several problems. Too little narcotic and
the subject may be able to fake through the situation; too much and
they may become unconscious — the issue of accuracy is a can of
worms. The test tries to take a person to a state of ‘disinhibition’ by
using the administratio n of sodium pentathol, which is the most
commonly used induction agent for general anesthesia. Sodium pentathol
binds GABA (chloride channel super complex, which is the primary
inhibitory neurotransmitter channel in brain) forming a complex at the â
site, which exerts control over the permeability of chloride ions into
neural membrane leading to the attainment of “the state of disinhibition”.
Thus, a complex is formed at the â site, which exerts control over the
permeability of chloride ions into neural membrane leading to the
attainment of “the state of disinhibition”. At a dosage, which does not
cause sleep, or rather unconsciousness, ‘disinhibition’ does occur. It
has been established that this removes the barrier of inhibition and it is
difficult for anyone to lie at this stage. The ECG and blood pressure
are monitored continuously throughout the testing procedure to prevent
any instantaneous damage to health. The above procedure is done
under medical supervision with monitors scanning vital signs of the
subject and a team consisting of a physician, an anesthetist and a
clinical psychologist or a psychiatrist. The revelations made are recorded
on video and the report prepared by the experts is useful in the process
of collection of evidence.

Right against self-incrimination and constitutional

validity of scientific tests

Article 20 (3) runs as follows:

No person accused of any offence shall be compelled to be a
witness against himself.
This article applies only to an accused and only speaks of self-
incriminating evidence by way of compulsion. In today’s world of
science and technology, man has found various tools that the law
enforcement agencies can use to battle crime. The question is whether
the use of such tools will lead to violation of the Constitution. It is to
be noted that only an accused can avail the protection of article 20(3)
and that too if, and only if, he is compelled to be a witness against

www.ili.ac.in © The Indian Law Institute

2007 ] NOTES AND COMMENTS 533

himself. 9 Every civilized society guarantees the right against self-

incrimination as a fundamental principle of fair trial in a criminal offence.
According to this principle, a person accused of a criminal offence
cannot be forced to incriminate himself or yield evidence against himself.
The right against self-incrimination is designed to prevent the use of
law or the legal process to force from the lips of the accused the
evidence necessary to convict him. Though the right has been defined
broadly its scope has been confined by judicial interpretation to evidence
that is testimonial in nature. In other words, it has been held that the
protection is available only to evidence which requires a volitional act
on the part of the accused person thus rendering it testimonial or
communicative in nature and it will not protect taking of blood samples,
fingerprints etc. from the accused. The protection would be available
only from the time the person is charged of an offence.10 It does not
extend to the pre-accusation or investigation stage if a strict interpretation
of article 20(3) is done. The immunity will not be available to a person
against whom no accusation has been made when a compulsory process
or notice is issued directing him under pain or penalty to produce a
document though ultimately it may incriminate him for the commission
of an offence. 11 The constitutional embodiment invigorating the ban on
self-incrimination has been enshrined in article 20 (3) of the Constitution
of India. However, the question that arises today is whether the law
enforcement authorities can be allowed to garner truth from every
quarter in order to discover guilt and fulfil the final tryst of the justice
system with the society.
This part of the paper assesses the extent to which human rights
come into play when state agencies use scientific tests for crime
investigation and law enforcement and analyses whether the advances
in science can be used by the investigating agency to gather evidence
against the accused. The new and latest scientific tests discussed herein
are a potent threat to criminals and an effective tool in the hands of the
law enforcement agencies. This part analyses the tests vis-à-vis right
against self-incrimination.
Polygraph & P-300: It is to be noted that the witness may or may not
answer the questions in a polygraph test and, therefore, there is no
compulsion as such to speak out. As has already been pointed out, the

9. Dastagir v. State of Madras, AIR 1960 SC 756; State of Bombay v. Kathi

Kalu, AIR 1961 SC 1808; RK Dalmia v. Delhi Adm., AIR 1962 SC 1821; Joseph v.
Narayana, AIR 1964 SC 1552; V. Ibrahim v. State of Maharashtra, AIR 1976 SC
1167; Nandini S. v. PL Dani, supra note 3; Balakrishnan v. State of Maharshtra,
AIR 1981 SC 379.
10. Ibid.
11. A search warrant leading to discovery of contraband is a perfect example.

www.ili.ac.in © The Indian Law Institute

534 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 4

subject may or may not answer the questions involving this test. There
is no direct invasion of the body in the ordinary sense of the term and
the end-result is a graph of physiological reactions, which cannot be
said to be a statement. Some defense counsels may clamour that actions
speak louder than words but there is no reason why this test cannot be
administered because a statement does not include what is not said. In
case of brain mapping, the map of the brain is the result and it cannot
be said to be a statement either. As mentioned earlier, brain mapping
results in a map depicting electro-chemical activity in the brain as a
reaction to certain target questions. The conclusion that can be drawn
by an expert after such treatment is that the person undergoing the
tests does/does not possess certain knowledge of the crime in relation
to which target questions were put to him. That being the end result of
the test, it cannot be said by any stretch of imagination that the brain
map depicting the electro-chemical brain cell activity is a statement.
Therefore, there is no reason why this test cannot be administered.
Also, no direct invasion of the body is involved in this test. The expert
explains the reactions in the court which would be his reading of the
map from which would flow his conclusion, which are to be admitted
or not admitted by the judge on appreciation of the statement and the
objections raised thereto. In this case no oral response is expected
from the witness. Hence it is seen that neither of these two tests
involves any direct invasion of the body and both can function even if
there is no verbal response from the subject. The tests merely indicate
the possession of the knowledge about the relevant subject, which is
helpful in the investigation and collection of evidence. It is to be noted
that except touching of the physique of the person, both the tests do
not involve invasion of the body in the ordinary sense of the term.
Narcoanalysis: In this test the person to whom it is administered does
need to make statements and it can lead to self-incrimination if the
person in question is really involved in a crime. However, even if
something comes out, it will not be admissible as evidence although it
can help in investigation of crime. V.G. Palshikar and P.V. Kakade JJ
dismissing the prayer for a certificate of fitness in the case of
Ramchandr a Ram Reddy v. State of Maharashtr a, 12 very lucidly
deliberated upon the issue of the constitutional validity of the test. The
line of reasoning is very apt. In narcoanalysis the person to whom it is
administered does make a statement. The question which falls for
consideration, therefore, is whether such statement can be forcibly
taken from the accused by requiring him to undergo the test against his
will. It will be seen that such statements will attract the bar of article

12. Supra note 4.

www.ili.ac.in © The Indian Law Institute

2007 ] NOTES AND COMMENTS 535

20(3) only if it is inculpating or incriminating the person making it.

Whether it is so or not can be ascertained only after the test is
administered and not before. Therefore, there is no reason to prevent
administration of this test. Also, there are enough protections available
under the Indian Evidence Act, under Criminal Procedure Code and
under the Constitution [article 20(3)] to prevent inclusion of any
incriminating statement.
Prevention of crime is a sole prerogative of the state and the
punishment for crime, if proved, is also the duty of the state. Fetters
on these duties can be put only in extreme cases. However, courts may
refuse to admit the findings of a narcoanalysis as in State v. Pitts,13
which disallowed the results of a sodium amytal interview, ruling that
it is not a valid scientific technique. However, the technology has
developed now and come a long way. Courts have held that a statement
means something that is stated. It may be written or oral communication
though it need not, in the literal sense, be communication to someone.
It will thus be seen that what is required to be made under compulsion
by an accused is a statement. Furthermore, in the judgment in State of
Bombay v. Kathi Kalu Oghad,14 which was also followed in Nandini
Satpathy v. P.L. Dani and Anr., 15 it was held that “compulsion is a
physical objective act and not the state of mind of the person making
the statement, except where the mind has been so conditioned by some
extraneous process as to render the making of the statement involuntary
and, therefore, extorted”. It can be argued that a narcoanalysis test
takes a person to a hypnotic stage and it is, therefore, conditioning of
the mind extraneously and the subject makes the statement under
influence of the drug involuntarily. However, the tests only removes
inhibition and reduces resistance to the interrogator, who then has to
frame questions and evoke responses in a way likely to produce accurate
answers. However, sodium pentathol adversely affects health and
improper dosage can even lead to coma. Therefore, the courts should
grant permission for conducting narcoanalysis only in exceptional
circumstances and the test must be properly conducted in the presence
of qualified experts.
As mentioned earlier, in the tests of brain mapping and lie detector
the map of the brain or a polygraph is the result. Therefore, neither can
be said to be a statement. Also, no direct invasion of the body is
involved in these tests. V.G. Palshikar and P.V. Kakade JJ held in the
case of Ramchandra Ram Reddy 16 that there is no hesitation in holding

13. 116 NJ 580, 562 A.2d 1320 (1989).

14. Supra note 9.
15. Supra note 3. [Emphasis added].
16. Supra note 4.

www.ili.ac.in © The Indian Law Institute

536 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 4

that brain mapping/P -300 or lie detector/polygrap h tests can be

administered to any accused or a witness. There is no statement coming
out of the involuntary tests and the conclusions, which come out of
such tests, are not statements.
As regards narcoanalysis, there have been various orders of various
high courts upholding its validity. Majage J of the Karnataka High
Court in the case of Selvi Murugeshan v. State of Karnataka 17 adjudged
on whether the procedure of narcoanalysis amounted to compulsion.
After reviewing the available evidence Majage J made a reference to
section 53(1) of CrPC, which permitted use of reasonable force in
order to ascertain those facts which may afford any evidence.
Narcoanalysis, he suggested, came under the purview of this section
and conducting the test in a proper manner was justified. He also said,
“This examination has to be carried out by a registered medical
practitioner . It can, therefore, be said that merely because some
discomfort is caused, such a procedure should not be permitted”. He
also pointed out that section 39 of the CrPC casts a duty upon every
person to furnish information regarding offences. Criminal justice system
cannot function without the cooperation of the people. He opined that
the Constitution framers conjured this right in order to protect the
accused from self incrimination, but this need not be interpreted as an
obstacle which hinders the quest for the truth by the law enforcement
officers. A similar view was taken in Ramchandra Ram Reddy.18 The
case was not restricted to narcoanalysis alone and it covered two other
tests, P-300 and lie detector test. The contention raised by the petitioners
in this case were that narcoanalysis involved invasion of the body and
amounted to compulsion and thus violated article 20(3). There was not
much of a difference in the findings of this court from the findings of
the Karnataka High Court except for the fact that it was noted that
narcoanalysis could also assist in establishing the innocence of a person
and not necessarily incriminate him.
Narcoanalysis has also been used by the US in fighting the war on
terrorism. It was held in the case of Indianapolis v. Edmond 19 that
truth serum may be administered without any warrant or a probable
cause in order to assist in the war against terrorism or other grave

17. Unreported.
18. Supra note 4.
19. 531 US 32 (2000) — The pin prick involved in delivering the “truth serum”
is likely to be viewed as a minimal intrusion involving virtually no risk, trauma
or pain, and, given the special government need to fight terrorism, might be
justified without probable cause or a warrant. See also Government of Virgin
Islands v. Roberts, 756 F.Supp. 198 (Dist. Ct. V.I. 1991) — removal of blood
reasonable under Fourth Amendment.

www.ili.ac.in © The Indian Law Institute

2007 ] NOTES AND COMMENTS 537

offences. It was concluded that if there is a need, the general interest

of the public would override the individual rights. This method of truth
extraction would be helpful in extracting much needed information
especially in cases where security or economy of the state is at stake .
Section 73 of the Indian Evidence Act, 187220 has been repeatedly
held to be valid by the Supreme Court and in S v. Paliram 21 it ruled
that both civil and criminal courts are competent to obtain a specimen
of handwriting. Furthermore, in Kathi Kalu Oghad 22 the court upheld
the judgment delivered by Ansari CJ in State of Kerala v. K. K. Sankaran
Nair23 (wherein the judgment of the Supreme Court in Sharma’s case24
was followed) and it was ruled that 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 is
constitutionally valid. It was further stated that “though they (the
Constitution framers) may have intended to protect an accused person
from the hazards of self-incrimination in the light of the English Law
on the subject — they could not have intended to put obstacles in the
way of efficient and effective investigation into crime and of bringing
criminals to justice”. The court also said that the mere fact that the
accused was in police custody does not by itself imply that compulsion
was used for obtaining the specimen handwritings. “Even if there is
compulsion, it does not amount to testimonial compulsion”.
The taking of impression of part of the body of an accused person
very often becomes necessary to help the investigation of a crime. It is
as much necessary to protect an accused person against being compelled
to incriminate himself, as to arm the agents of law and the law courts
with legitimate powers to bring offenders to justice. Furthermore, it
must be assumed that the founding fathers of the Constitution were
aware of the existing law, for example, section 73 of the Indian Evidence
Act or sections 5 and 6 of the Identification of Prisoners Act (XXXIII
of 1920). Hence their is rationale behind the judgment25 that declared
P300 and polygraph testing as constitutionally valid as it is reasonable
and requires no statement to be made by the accused. Furthermore, it
arms the agents of law and the law courts with legitimate powers to

20. Comparison of signature, writing or seal with others admitted or proved.—

…. The Court may direct any person present in court to write any words or
figures for the purpose of enabling the Court to compare the words or figures so
written with any words or figures alleged to have been written by such person. This
section applies also, with necessary modifications, to finger-impressions.
21. AIR 1979 SC 14.
22. Supra note 9 at para 10, 11.
23. AIR 1960 Ker 392.
24. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300. [Emphasis added].
25. Reddy’s case, supra note 4.

www.ili.ac.in © The Indian Law Institute

538 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 4

bring offenders to justice. Krishna Iyer J remarked in the case of

Nandini Satpathy 26 that the use of brains as against brawn is appreciable
and “that policeman deserves respect who gives his fists rest and his
wits restlessness”.
Sutherland argues that an interrogator dominates his subject and
overwhelms him with his inexorable will to obtain the truth, interrogating
for a spell of several hours pausing only for the subject’s necessities.
Therefore, the interrogation, although not physically intimidating, is
equally destructive of human dignity.27 However, the law has to strike
a balance and ensure that the interest of justice is not defeated. Today,
there is more danger that criminals will escape justice than that they
will be subject to tyranny. Under the Indian Evidence Act, 1872, the
Miranda exclusionary rule that custodial interrogations are inherently
coercive finds expression (section 26), although the Indian provisions
confine it to confession, which is a narrower concept than self-
crimination. Speaking pragmatically, there exists a rivalry between
societal interest in effecting crime detection and constitutional rights,
which accused individuals possess. Whether one considers the fifth
amendment or the provisions of other constitutions or article 20(3), the
driving force behind the refusal to permit forced self-incrimination is
the system of torture by investigators. A rational mind will notice that
there is no torture involved in the tests like P-300 and polygraphy. On
the other hand, one must not forget that crime in India and worldwide
is growing, and criminals are outwitting the detectives. The American
cases need not detain us, although Miranda v. Arizona 28 being the
lodestar on the subject, may be referred to for grasping the basics of
the fifth amendment bearing on oral incrimination by accused persons.
A recurrent argument made is that society’s need for interrogation
outweighs the privilege. 29
However, two things need emphasis. The setting of the particular
case, and the context and the environmen t i.e., the totality of
circumstances. These must inform the perspective of the court adjudging
the incriminatory injury, and where reasonable doubt exists, the benefit
must go in favour of the right to silence by a liberal construction of the
article. In Malloy v. Hogan 30 the court unhesitatingly held that the
claim of a witness of privilege against self-incrimination has to be
tested on a careful consideration of all the circumstances in the case
and where it is clear that the claim is unjustified, the protection is

26. Supra note 3.

27. “Crime and Confession” 79 Harv L Rev 21, 37 (1965).
28. 384 US 436 (1966).
29. Chambers v. Florida, 309 US 227, 240-241 (1960) 84 L Ed 716, 724.
30. L.Ed. 2d 653: 378 US 1 (1964).

www.ili.ac.in © The Indian Law Institute

20 07 ] NOTES AND COMMENTS 539

unavailable. In this case the Hoffman standard and the Malloy test was
summarized. Could the accused have reasonably sensed the peril of
prosecution from his answer in the conspectus of circumstances? That
is the true test. However, Krishna Iyer J stated: 31
Phipson, it is true, has this to say on self-incrimination: ‘The
rule applies to questions not only as to direct criminal acts, but
as to perfectly innocent matters, forming merely links in the
chain of proof’. We think this statement too widely drawn if
applied to Indian statutory and Constitutional Law.
Therefore, it is clear that the Indian position is different and
therefore, the constitutional validity of the tests has been upheld in
India. And on this premise reflect upon the judgment in Kathi Kalu
Oghad,32 which was also followed in Nandini Satpathy 33:-
In order to bring the evidence within the inhibitions of clause
(3) of Article 20 it must be shown not only that the person
making the statement was an accused at the time he made it
and that it had a material bearing on the criminality of the
maker of the statement, but also that he was compelled to
make that statement. ‘Compulsion’ in the context, must mean
what in law is called ‘duress’. In the Dictionary of English
Law by Earl Jowitt, ‘duress’ is explained as follows:
Duress is where a man is compelled to do an act by
injury, by beating or unlawful imprisonment (sometimes
called duress in strict sense) or by the threat of being
killed, suffering some grievous bodily harm, or being
unlawfully imprisoned (sometimes called menace, or
duress per minas). Duress also includes threatening,
beating or imprisonment of the wife, parent or child of
a person.
The compulsion in this sense is a physical objective act
and not the state of mind of the person making the
statement, except where the mind has been so
conditioned by some extraneous process as to render
the making of the statement involuntary and, therefore,
extorted.
Now, if one follows this line of thought one can clearly say with
conviction that the scientific tests are in no way compelling a person.

31. Supra note 3, para 48 [Emphasis added].

32. Supra note 9.
33. Supra note 3 {Emphasis added].

www.ili.ac.in © The Indian Law Institute

540 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 4

The evidentiary aspect and admissibility

The results of polygraph and P-300 are simply graphs and the
reading of experts thereof. Hence, it is purely the assessment of opinions
and their subsequent opinion based on their reading and understanding
of such graphs. Furthermore, the accuracy of narcoanalysis is a can of
worms, as has been pointed out earlier when discussing the test from
the technical perspective. This necessitates the test to be recoded on
video to ensure fair play. These tests may help the law enforcement
agencies to elicit information and investigate effectively and make their
task somewhat easier. However, when mooting the evidentiary value of
the tests, one must take a look at certain other aspects. While examining
the validity of expert opinion, the Supreme Court has held in Mohd.
Zahid v. State of Tamil Nadu34 that the evidence of a doctor conducting
post mortem without producing any authority in support of his opinion
is insufficient and it cannot be considered to grant conviction to an
accused. This premise suggestively leads us to the conclusion that
unless an expert can produce authorities to support the opinion he has
formed, it is not of much evidentiary value and the fact propounded
loses its relevancy. Similarly, when an expert gives his reading of a
graph after conducting a lie-detector test or brain-mapping, his opinion
will necessarily be have to be corroborated on that count. The issue of
relevancy and reliability in case of these tests are pertinent because
they merely indicate some physiological reactions and electro-chemical
neuron activity in the brain cell respectively and thereafter, the experts
gives his reading thereof. To err is human and hence the Supreme
Court has repeatedly cautioned that the opinion of an expert is not
infallible and therefore, when expert opinion is adduced in evidence, it
has to be received with great caution.35 It would sound platitudinous
to say so, but it is nevertheless true that in discovering the truth in
such cases the judicial mind must always be open though vigilant,
cautious and circumspect. As the Supreme Court has adjudged with
emphasis, great care and caution has to exercised by the courts when
receiving expert opinion in evidence, especially when there is no
corroborating authority. In certain cases, lack of supporting and
corroborating authority can be a ground for rejection of evidence.36
Conclusion
To conclude, P300 or brain mapping test, in which the map of the
brain is the result, and polygraph or lie detector test, in which the

34. 1999 Cr LJ 3699 (SC).

35. Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200.
36. Mohd. Zahid v. State of Tamil Nadu, 1999 Cr LJ 3699 (SC).

www.ili.ac.in © The Indian Law Institute

2007 ] NOTES AND COMMENTS 541

result is a graph, are constitutionally valid as it is similar to the discovery

of contraband after search of a person’s pockets. In these tests, the
person being tested is not required to make any statement. Article
20(3) of the Constitution does not hit these because there is no element
of compulsion involved. 37
As far as the narcoanalysis is concerned, it is controversial. This is
probably because in this test, the person to whom it is administered
does make a statement and that too, under the influence of a drug. His
mind is conditioned and, therefore, it may be contended that he is being
compelled. Even if a truth serum test is allowed, a statement made will
attract the bar of article 20(3) only if it is inculpating or incriminating
the person making it. Whether it is so or not can be ascertained only
after the test is administere d and not before. Furthermore , such
statements will be inadmissible as evidence although they can be useful
for investigation. It can also be argued that such a test intoxicates the
mind and can even cause coma or death in case of an overdose and,
therefore, it violates the right guaranteed under article 21 of the
Constitution. Therefore, as has been stated earlier, the courts should
grant permission for conducting narcoanalysis only in exceptional
circumstances and the test must be properly conducted in the presence
of qualified experts.
It was stated by the apex court in Kathi Kalu that the words used
in article 20(3) are not “appear as a witness against himself”. It covers
the stage of investigation also and protects all action of an accused
person that may be used against him at the trial. In M. P. Sharma v.
Satish Chandra,38 wherein after studying the judicial trend in England
and America and the standard text books on evidence, like Phipson and
Wigmore, and other authorities, the Supreme Court had observed that
the guarantee in article 20 is against “testimonial compulsion”. The
court said that there was no reason to confine the content of the
constitutional guarantee to this barely literal import. To so limit it
would amount to robbing the guarantee of its substantial purpose. It
was also stated that materials produced before the court are neither
oral nor documentary evidence but belong to the third category of
material evidence, which is outside the limit of ‘testimony’. However,
if the self-incriminatory information has been given by an accused
person without any threat, that will be admissible in evidence and that
will not be hit by the provisions of article 20(3) of the Constitution for
the reason that there has been no compulsion. From this it clearly
follows that if there is no use of threat or compulsion, no question of

37. Supra notes 9 and 3.

38. Supra note 24.

www.ili.ac.in © The Indian Law Institute

542 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 49 : 4

unconstitutionality arises. Prevention of crime and to punish the criminal

is the duty of the state. Therefore, in certain cases, a likely suspect
may be subjected to the test at least to aid the police in the investigation
stage if not the prosecution at the trial stage. Under a properly monitored
procedure established by law, the test may be allowed. After all, society’s
need outweighs the privilege of an individual in certain cases. The law
enforcement authorities must be allowed to garner truth from every
quarter in order to discover guilt and administer justice.
Though the Constitution framers may have intended to protect an
accused person from the hazards of self-incrimination in the light of
the English law on the subject, they could not have intended to put
obstacles in the way of efficient and effective investigation into crime
and of bringing criminals to justice because it is as much necessary to
protect an accused person against being compelled to incriminate himself,
so as to arm the agents of law and the law courts with legitimate
powers to bring offenders to justice.

A.S. Dalal* and Arunava Mukherjee**

* Dean, Faculty of Law, National Law University, Jodhpur.

** LL.B. Fourth Year, National Law University, Jodhpur.

www.ili.ac.in © The Indian Law Institute