The Supreme Court today declared today that forced narco-analysis, brain-mapping tests and polygraph tests are violative of Article 20(3) of the Constitution of India. The apex court had reserved its order on a bunch of petitions challenging the investigative procedure more than two years ago on January 25, 2008.
Investigative techniques such as brain-mapping, narco-analysis and polygraph tests have been used in the investigation of a large number of high profile cases, including that of Abdul Karim Telgi, the Nithari killings and the Arushi murder case.
Petitions were moved before the Supreme Court between 2005 and 2007 by Santokoben Sharmanbhai Jadeja, accused of leading an underworld gang in Gujarat. K. Venkateswara Rao, a Tamil film producer, Dilip Kamath and independent Maharashtra Member of Legislative Assembly Anil Gote challenged the constitutional validity of these tests. The latter three are all prime accused in the stamp paper scam led by Telgi.
Today, a three-judge bench headed by incumbent Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and Dalveer Bhandari, today finally clarified the legal position on the issue. The Bench held, "We are of the considered opinion that no individual can be forced and subjected to such techniques involuntarily and by doing so it amounts to unwarranted intrusion of personal liberty." The court further went on to declare that the investigative techniques were an unconstitutional invasion of privacy enshrined in Article 21.
Recently, the Delhi High Court had restrained investigative agencies from conducting the tests on Maoist leader Kobad Ghandy, saying that their legality was pending in the apex court. Lawyer Rebecca M. John, counsel for Ghandy, told newswire IANS, “I am just overjoyed at the Supreme Court decision. I think this should have been done a long time back. Narco test is simply unconstitutional and the Supreme Court has upheld the rule of law.”
Noted civil liberties activist Prashant Bhushan welcoming the court’s decision told Bar & Bench, “It's absolutely correctly decided and a welcome judgement, thought quite delayed. It is a mental 3rd degree method of interrogation which causes severe trauma to the victims and is unreliable. The constitution prohibits compelling a person from answering question here you are completely drugging him and compelling to answer. It violates a person’s right to silence and privacy as you are basically opening up his brain.”
However the court has allowed the tests to be administered to persons with their consent while stressing National Human Rights Commission guidelines be strictly adhered to. The tests are highly favoured by the Union Government and its agencies who maintained through the hearings that these tests were crucial to the investigation of terror related offences and conspiracy to commit murder. The Centre had submitted that these tests gave clues to the investigating agencies and had no evidentiary value. The Centre stressed on the fact that “no invasive procedure” was used during the conduct of these tests and further argued that the law commission was of the opinion that such procedures were essentially for the conduct of effective investigation.
Senior Counsel Dushyant Dave was appointed as the Amicus Curiae to the Apex Court, while Solicitor General Ghoolam E. Vahanvati appeared for the Union of India. Senior Counsel C Sundaram appeared for the appellants who was briefed by Lawyers’ Knit & Co., Rajesh Mahale, Sanjay Hegde, Minakshi Grover, Bina Madhavan and Shuvojeet Roy.
This verdict comes as a major setback to investigating agencies across the country and a victory for civil liberties activists who have long argued against these practices.
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