Abstract

With boom in neuroscience owing to its objectivity, establishing the validity of medical
examinations is the need of the hour. The admissibility of narco analysis test, polygraph test,
brain mapping and the BEAP test remain a topic of great controversy in today’s day and age.
While setting a backdrop to the above, the article analyses the provisions of Criminal
procedure code (herein after “CrPC”) as a crossroad for examination of accused through
such neural tests. Building on this, the objectives of this article is set forth. By virtue of a
critical analysis, neuroscience and an individual’s human rights has been discussed in
juxtaposition with the judicial pronouncements emphasising on its dependence in a court of
law. The paper also analyses medical examinations as a junction for jurisprudential
theories of neuroscience and law. By virtue of a jurisprudential analysis, neuroscience and
human rights has been discussed in contiguity with the theory of science and objectivity,
Foucault’s theory on discourse and power. Lastly, with a comparative approach, medical
examination under CrPC is compared with procedure in different countries.

Keywords: Neuroscience, Medical examination, Narco analysis, Polygraph test, Brain

fingerprinting, BEAP test, CrPC, Article 20(3) of Indian Constitution, Empirical study,
Neurolaw, Admissibility, Human Rights , Jurisprudence, Foucault’s theory, Science and
Objectivity.

[I] RESEARCH METHODOLOGY:

The author has employed descriptive method of research to approach the study while
acquiring primary and secondary data from various research articles, journals, and books.
Moreover, critical and comparative analysis of the provisions under CrPC dealing with
medical examination has been presented in an analytical manner.

[II] CITATION STYLE AND FOOTNOTES:

‘The Bluebook: A Uniform System of Citation, 21st Ed. has been adopted as a standardized
format for footnotes and citations.
““Law should not be seen sit by limply, while those who defy it go free, and those who seek
its protection lose hope.”” - Edmund David

[III] INTRODUCTION

Law is dynamic, thus, it is imperative for the judicial mind to delve into the advancement of
humanity. Human Rights are typically universal rights endowed by virtue of merely being a
human; the State is bestowed with the responsibility of guaranteeing these universal,
inalienable and indivisible rights. As a result, the impact of the UDHR on drafting
fundamental rights of the Indian Constitution is apparent. Accordingly, the right against self-
incrimination is a fundamental facet of Common law criminal jurisprudence to maintain
human privacy and uphold civilised standards in the enforcement of justice. Silence is a non-
communicative trait of humans. As science has outpaced the evolution of law, it has resulted
in an inescapable complexity in determining the admissibility of evidences in the court of
law.

‘Evidence’, the crucial component of ‘Conviction’, is a product of thorough Investigation.

Forensic being a systematic study of scientific evidences comes up as ‘Saviour’ of
Investigation when our eyes are unable to recognize the evidences. Thus, looking at the
changing organised crimes, the validity of scientific tests and the procedure employed
synchronously to combat them remains contentious. Neurotechnology offers a great future in
supplementing new avenues of criminal justice system. The possibility of accessing, storing,
sharing, collecting and manipulating neuro data possess a challenge in the human rights
context.

In the course of law, neuroscience proponents have embodied general jurisprudence theories
among plethora of subjects that could prosper from an expounded area of neuroscience.
Oliver Goodenough has significant amount of faith in the potential of neuroscience to
revolutionize the general principles of law. During the 1970-1980s, the world began to plant
the seed of bioethics. With technological advancements, the field of bioethics saw a surge and
increased use in one’s daily life. This brought forth the standard need to balance and regulate
bioethics practices and its invasion in human rights boundaries.1

1
Hoffman, M. B. (2016). Neuroscience cannot answer these questions: A response to G. and R.
Murrow’s essay hypothesizing a link between dehumanization, human rights abuses and public
Nonetheless, neuroscience as a wholistic concept has been facing an existential crisis in the
silicon age through the lens of human rights. Moreover, formidable connotation, Neurolaw
and its foundation has necessitated the need to examine it through the prism of jurisprudence.

[IV] DELVING DEEP INTO THE INTRICACIES: AN ANALYSIS

[IV.I] Medical examination of an accused through the lens of neural tests

In today’s day and age, narco analysis, polygraph, brain mapping and BEAP tests are
illustrations of scientific advancements that have become increasingly, perhaps alarmingly,
widespread in India. The term ‘Narco Analysis’ is derived from Greek “narkç,” meaning
“anaesthesia,” which is described as a therapeutic technique that deploys psychotropic drugs
through which it becomes impossible for an individual to lie. To enhance the investigation's
efficacy, this test necessitates the procedure of collecting evidences against the accused by
the investigating agency. Polygraph (or lie-detector test) is conducted by measuring the
variations in the pulse rate, heart rate, perspiration, skin conductance and blood pressure. Its
underlying purpose is to measures deviations from a predetermined baseline of truthfulness,
which is interpreted as a sign of a lie. Though, these scientific techniques lack reliability and
evidentiary admissibility, yet the judiciary has not deemed them as “Void Ab Initio.”

[IV.II] Self-Incrimination through the lens of Law

In light of the above, the right against self-incrimination (Nemon tenetur seipsum accusare)
is the foundation of the right to mental privacy. Article 20(3)2 of the Constitution which
embodies this right states that no individual who is accused of an offence shall be forced to
be a witness against himself; prohibiting the use of scientific (neural) tests against the
accused’s will or without his consent. Article 20(3) seeks to accomplish two things:
- check the assertions made by the accused, and
- guarantee that the statements by the accused were made voluntarily. A person is
entitled to the presumption of innocence under common law unless proven guilty
beyond a reasonable doubt.
Article 20(3), which guarantees the right not to incriminate oneself, is directly violated in any
situation that might lead to criminal proceedings. Yet, the "compulsory administration" of

policy. Journal of Law and the Biosciences, 3(1), 167–173. https://doi.org/10.1093/jlb/lsv041.

2
Constitution of India, art. 20(3)
such scientific procedures is inherently self-incriminating, which runs counter to the premise
of Article 20 (3), which is to guarantee that the statements made are voluntary in character.
To compare brain mapping to "testimonial coercion" would be unfair since with brain
mapping the subject is not under any need to provide a spoken answer. This goes beyond
what is covered under Article 20(3).

According to Section 54, CrPC a medical examination of an individual arrested can be

ordered during the course of an investigation, either at the direction of the investigating
officer or the arrested person himself. A court's authority to order a medical examination in
this regard has also been established. A person who has been granted bail or anticipatory bail
may also be subject to such an examination after their release from detention.

The debatable part is the Explanation to Sections 53, 53-A, and 54 of the CrPC
(amended in 2005) wherein it is argued that the words ‘modern and scientific techniques
including DNA profiling and such other tests’ must be liberally construed to be inclusive of
scientific techniques. A case was made for reading in the narcoanalysis method, the
polygraph examination, and the BEAP test despite not being expressly stated. When new
scientific evidence emerges, the law may be interpreted broadly.

According to Section 161(2), CrPC a person is not compelled to answer questions during a
police interrogation if doing so might put him at risk of being charged with a crime, penalties,
or forfeitures. The protection envisioned by Section 161(2), CrPC is broader. Every
individual said to be aware of the facts and circumstances of the case is shielded from police
questioning under Section 161(2) when read in conjunction with Section 161(1), CrPC.
Individuals who have been legally accused or who are being questioned as a suspect in a
criminal proceeding have the right against self-incrimination. In addition, it protects
witnesses who know their cooperation might lead to criminal prosecution, either in the
ongoing or unrelated cases.

However, while interpreting Section 132 of the Indian Evidence Act 3, it can be inferred that
witnesses cannot the claim the aforesaid protection against self-incrimination and refuse to
answer questions during a trial. As a result, under Section 161(2), CrPC, witnesses are not
afforded the same level of protection during trial as they are during investigation. Through
this legislators emphasized preserving a criminal trial's potential to ascertain the truth.
3
Indian Evidence Act, 1872, § 132.
Moreover, the outcomes of the Polygraph and BEAP tests do not constitute "testimony," and
thus fall outside the purview of this provision.

Ever since narco-analysis was first employed in the Godhra Atrocity case in 2002,
contentions regarding its evidentiary admissibility have been put forth. The use of Brain
Mapping and the narco analysis test was affirmed in Ramchendra Reddy and Ors v. State of
Maharashtra.4 Evidence obtained under the effect of narco analysis has been deemed
admissible in court. However, legal professionals believed that the narco analysis test was an
archaic kind of third-degree questioning and that the use of drugs during interrogation was
legally problematic. In another decision, Kalawati v. State of H.P, 5the High court ruled that
in order for Article 20(3) to apply, there must be a compulsion upon the accused, if it is
voluntary then this provision does not come into play. Moreover, in Alok Nath Duta v. State
of West Bengal6, it was held that no individual accused of any offence shall be forced to be a
witness against oneself, according to Article 20(3) of the Constitution.

Cases such as M.P. Sharma v. Satish Chandra and Narain Lal v. M.P. Mistry 7have
established several prerequisites for invoking Article 20. According to the precedents, the
following requirements must be met before the Article may be considered applicable.
1. The accused must have been charged with a crime
2. Immunity from being "compelled" to provide evidence against oneself.

The right not to incriminate oneself and the right to privacy are intertwined with the right not
to speak out. Article 11.1 of the Universal Declaration of Human Rights 8, Article 14 of
the International Covenant on Civil and Political Rights 9, and Article 6 of the European
10
Convention for the Protection of Human Rights and Fundamental Freedoms all
regulate the right in some way.

4
2004 ALL MR (Cri) 1704
5
1953 AIR 131
6
(2007) 12 SCC 230
7
1961 AIR 29, 1961 SCR (1) 417
8
Universal Declaration of Human Rights, G.A. Res. 217A (III) (UDHR), art. 11, para. 1.
9
International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171,
art. 14.
10
European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature
Nov. 4, 1950, 213 U.N.T.S. 221, art. 6.
Instead of being seen as a means of coercing a person into testifying against himself,
scientific testing like NARCO analysis or DNA tests are seen as a useful instrument for
acquiring evidence. According to the precedents established in Govind Singh v. State of
MP11and Khaak Singh v. State of UP12, these actions do not constitute a breach of Article
20(3). Given the importance of these scientific examinations to the administration of justice,
it was determined that the right enshrined by Article 20(3) may be subject to limitations.

Another important aspect regarding the same is whether a witness can waive off his right
against self-incrimination as it a fundamental right. The answer to the question depends
upon the circumstances. The witness can waive off the right by his own free will and
voluntary statements given by him are admissible in the court. However, it should be free
from any external force or threat.

After investigating the forcible administration of drugs, polygraphs, and brain mapping tests,
a three-judge Bench of the Supreme Court rendered a landmark judgement in Smt. Selvi vs.
State of Karnataka13. After hearing all of the evidence, the Supreme Court ruled that no
person shall be subjected to a Narco-Analysis/Polygraph test as part of a criminal
investigation or otherwise as it is violative of Article 21 of the Constitution. As the subject is
not completely conscious at the time of providing the statement, the Court ruled that the
findings of the tests cannot be admitted as evidence, even if consent was granted.

It was shown in the case State of Bombay vs. Kathi Kalu14 that the accused was subjected to
such coercion that he produced a confession. Compulsion, such as threatening or striking a
family member, even a kid, was discovered during an inquiry. Incriminating evidence
obtained using scientific methods while the subject was under hypnosis cannot be
disregarded.

In 2004, the High Court of Bombay handed down a landmark decision in the case
Ramchandra Ram Reddy vs. State of Maharashtra15, upholding the reliability of polygraph,
fMRI, and narco analysis tests. Only if the individual's remarks are incriminating may Article
20 (3) of the Constitution be used to challenge the testing. The outcome of the test is the only
11
1975 AIR 1378, 1975 SCR (3) 946
12
1963 AIR 1295, 1964 SCR (1) 332
13
AIR 2010 SC 1974
14
1961 AIR 1808, 1962 SCR (3) 10
15
AIR 1999 SC 123
factor that may determine whether or not such a remark is damning, and this cannot be
known beforehand. As safeguards may be readily activated, there is no reason to prohibit the
implementation of such tests.
As a protection for the accused and witnesses, Article 20(3) must be appropriately read in
light of Section161(2) of the Code of Criminal Procedure, 1973.
Section 161(2) of the Criminal Code states, "a person is legally required to answer any
question made to him throughout the course of inquiry in accordance with the truth."

It must be reiterated that Indian law embodies the ‘rule against adverse inferences from
silence’ which is effective at the trial stage. This view is encapsulated in a conjunction of
Article 20(3) of the Constitution with Articles 161(2), 313(3), and Proviso (b) of Section
315(1) of the CrPC. The underlying concept behind this stance is that even if the accused is a
credible witness at his or her own trial, the court cannot penalize him for failing to answer
16
questions that would incriminate him or her. The English case Woolmingten v. DPP
articulated clearly that suspect or accused person enjoys the "right to silence," which implies
that the court should not be encouraged to find him guilty merely because he has refused to
answer put to him by the police or the court; this was also affirmed in the 180th Law
Commission Report of India.

[V] COURTROOM DEPENDENCE

In legal use, neuro-technology shall facilitate more evidence-based decisions, evaluation of

risk recidivism, reliability of lie detection, reliability of witnesses and memory erasure in
violent criminals and trauma victims. The brain fingerprinting was admissible in the case of
State of Maharashtra v. Sharma17. In India whereby it recognised BEOS as a form of
admissible evidence. With this, the issue of whether the mere negative thoughts can call for
sanctions. In Doe v. City of Lafayette18 (377 F.3d 757 [200]) the court held the defendant
liable merely because of his thoughts. Their reasoning being that thoughts restrict and are
followed with actions, banning the thoughts would ban the ban itself.

The issue cropping up is the basic human right of one’s freedom of thought. There needs to
exist a balance between forum interim and state interests (terrorist activities, etc.) In the USA,

16
(1935) AC 462, at page 481
17
Case No. 508/07
18
377 F.3d 757 [200]
the qEEG reports was used as evidence in State v. Nelson19 to determine the quantum of
sentence. In US v. Semrau20 the fMRI lie detection was acknowledged as having future use in
evidence law.

PET Scan of one’s brain image was used as an insanity proof of his schizophasia in People v.
Goldstein21. Based on this, countries like Italy, England, Wales and Netherland, discussed the
need for a legal framework to protect people from unauthorized neurotech interventions. In
domestic context, Aditi Sharma was the first person convicted by means of an EEG test way
back in 2008. Eventually Israel and Singapore developed the basis for neuroscience and its
admissibility. In 2009, Italy convicted a murderer by means of genetic information and brain
sampling. Neurotechnology is not restricted to today’s day and age in the judiciary. In 1981,
the trial of President Ronald Reagan’s assassinator brought up CT scans of the brain’s
accused.

[VI] CONSTITUTIONAL VALIDITY

After suspects are recognised, they will then be interrogated or taken to a police station. The
purpose of questioning an accused person is primarily to elicit a confession. No one is
presumed to speak the truth if they are guilty. In light of these claims, methods like brain
mapping are used to apprehend the accused in the act of lying. Psycho-diagnostic methods
are developed when police fail to gather enough evidence to identify a suspect. Direct
interrogation may be time-consuming and is unlikely to yield results with persistent
offenders. Methods of indirect inquiry, such as brain imaging, become relevant in this
context.

Author’s Opinion

In my view, the use of scientific methods raises a number of moral concerns. These are
- It's common knowledge that the use of such scientific methods is fraught with
controversy. Do we accept such methods as legitimate questioning strategies?
- Should a person be forced to undergo such procedures when their usage has been
judged unreliable by a number of countries?
19
65 Wn.2nd 189 (1964)
20
693 F.3d 510 (6th Cir. 2012)
21
Crim. No. 3241. First Dist., Div. Two. Nov. 27, 1956
 - A Narco analysis test requires the intravenous introduction of a substance. It is
impossible to completely rule out the likelihood of difficulties resulting from the use
of such methods.
- Ideally No one with medical training should be included in the questioning team that
uses scientific methods. The Indian Medical Council (Professional Conduct,
Etiquette, and Ethics), Rules, 2002, Chapter 6, prohibits such behaviour.

Human rights are addressed in Article 6.6. Galvanic Skin Resistance (GSR) is another
method used in polygraph tests to assess dishonesty by measuring the amount of perspiration
on a person's fingers. The common belief is that increased sweating indicates nervousness or
the presence of a secret. The person's fingers are fitted with metal plates called
galvanometers.
An individual's hyper-arousal condition could not be directly related to misleading, therefore
sweat as a decision of guilt is very questionable. Stress, worry, fear, or anxiousness might be
to blame.
Aaftab Poonawala, who allegedly murdered his live-in partner Shraddha Walker, swayed
her corpse into pieces and scattered her body parts throughout Delhi, underwent a
Narcoanalysis test by the Delhi Police. This shows how Narco tests are so useful in
uncovering heinous crimes and to serve justice.