RIGHT AGAINST SELF

INCRIMINATION – BRAIN
MAPPING AND NARCOANALYSIS

Pooja Dhamor
18th August 2017
Objective
• Among the fundamental rights that have been
guaranteed to us by the Indian Constitution,
Article 20 espouses the ones that are specific to
any person who is accused of an offence. It takes
the spirit of natural justice and fair trial further.
This presentation elaborates the stand of Indian
judiciary specifically with respect to the Right
against self-incrimination granted by Article
20(3) of the constitution.
 ARTICLE 20(3)

• Clause (3) of Article 20 of the Indian

Constitution, 1950 provides that “No person
accused of any offence shall be compelled to
be a witness against himself.” This principle
is espoused on the maxim “nemo teneteur prodre
accussare seipsum”, which essentially means
“NO MAN IS BOUND TO ACCUSE HIMSELF.”
The Fundamental Right guaranteed under Article
20(3) is a protective umbrella against testimonial
compulsion for people who are accused of an
offence and are compelled to be a witness against
themselves
The provision borrows from the Fifth
Amendment of the American Constitution
which lays down that, “No person shall be
compelled in any criminal case to be a
witness against himself”, same as mentioned
in the Constitution of India embodying the
principles of both English and American
Jurisprudence
 This libertarian provision can be connected
to an essential feature of the Indian Penal
Code based on the lines of Common Law
that, “an accused is innocent until proven
guilty” and the burden is on the prosecution
to establish the guilt of the accused; and that
the accused has a right to remain silent
which is subject to his much broader right,
against self-incrimination.
The tendency of Indian legal system
manifests skepticism of the police
system. This is the reason
confessions of an accused is only
admissible if recorded by a
Magistrate in accordance with an
elaborate procedure to ensure that
they are made voluntarily.
Protection is also accorded by the
provisions of The Indian Evidence
Act. This protection is available to
every person including not only
individuals but also companies and
incorporated bodies.
This clause gives protection only if the following
ingredients are present:-

1) It is a protection available to a person accused of

an offence;

2)It is a protection against compulsion to be

a witness against oneself; and

3)It is a protection against such “Compulsion” as

resulting in his giving evidence against himself.
1) PERSON ACCUSED OF AN
OFFENCE
• A person accused of an offence means a
“person against whom a formal accusation
relating to the commission of an offence has
been leveled, which may result in
prosecution”. Formal accusation in India can
be brought by lodging of an F.I.R or a formal
complaint, to a competent authority against
the particular individual accusing him for the
commission of the crime.
• It is only on making of such formal accusation that
Clause (3) of Article 20 becomes operative covering
that person with its protective umbrella against
testimonial compulsion. It is imperative to note
that, “a person cannot claim the protection if at the
time he made the statement, he was not an
accused but becomes an accused thereafter.” Article
20 (3) does not apply to departmental inquiries into
allegations against a government servant, since
there is no accusation of any offence within the
meaning of Article 20 (3).
2) TO BE A WITNESS AGAINST
ONESELF

• The protection contained in Article 20(3) is against

compulsion “to be a witness” against oneself.
This was discussed in M.P Sharma v. Satish Chandra
case.
To be a witness furnishing Evidence

• In M.P Sharma’s case it was held that, Article

20 (3) was directed against self-incrimination
by the accused person. Self-incrimination
must mean conveying information based
upon the personal knowledge of the person
giving the information and cannot include
merely the mechanical process of producing
documents in the Court.
 EXCEPTION
It follows that giving thumb impressions, or impression of
foot or palm or fingers or specimens of writings or exposing
body for the purpose of identification are not covered by the
expression ‘to be a witness’ under Article 20(3).

TO BE A WITNESS FURNISHING EVIDENCE

It means imparting
knowledge in respect of
relevant facts by an oral
statement or statement
in writing made or given
in court or otherwise.
It included production of
documents or giving
materials which might be
relevant at a trial to
determine the guilt or
innocence of the accused.
3) COMPULSION RESULTING IN
GIVING EVIDENCE

• Compulsion is duress; compulsion has to be a

physical objective 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. Compulsion
may take many forms, an accused may be subjected
to mental or physical torture, he may be starved or
beaten and a confession extorted from him.
Brain-Mapping
and
Narco-Analysis
 NARCOANALYSIS
• It is a psychoanalysis using drugs to induce a state akin
to sleep. The aim is to attain a release of repressed
feelings, thoughts and memories which under normal
circumstances, the subject would not have consented
to divulge . It is believed that a person would normally
lie to prevent the extraction of these memories, and
one lies by use of his or her own imagination. Thus by
administration of these particular drugs, the subject’s
imagination is neutralized and hence the reflexes and
stimulus to lie do not function as under normal
conditions. It is at this point of time that one fails to
distinguish between what one is inhibited against doing
and what one is doing.
 BRAIN MAPPING/ P300 TEST
In this particular method also called, “Brain Wave Finger
Printing”, the subject is made to undergo a preliminary
interrogation where certain questions regarding the crime are
asked. Consequently, sensor pads are attached on either side
of subject’s head and an image generating LCD is placed over
the eyes of the subject. Now, images possibly relating to
crime, or the images which the investigators suspect the
subject to be lying about are projected on the screen. Upon
remote recognition of any of these images, certain electrical
signals are passed within the brain cells. These impulses are
known as P300 waves. The sensory pads attached to the sides
or temples of the subject are capable of tracing such electrical
activity.
CASE
LAWS
M.P. Sharma vs Satish Chandra

The Supreme Court was first called upon to lay

down the meaning of section in the 1954 case
of M.P. Sharma vs Satish Chandra. The question
in that case was whether a search and seizure
under Sections 94 and 96 of the 1898 Criminal
Procedure Court violated Article 20(3) of the
Constitution.
Decision
• Court held that the meaning of the phrase “to be
a witness”, under Article 20(3), was analogous to
“to furnish evidence”.
• While expanding the reach of Article 20(3), the
Court declined to find that a search and seizure
violated it. Court found no basis in the Indian law
for the assumption that a search or seizure of a
thing or document is in itself to be treated as
compelled production of the same
State of Bombay vs Kathi Kalu Oghad
• In 1961, an eleven-judge bench of the Supreme
Court, in State of Bombay vs Kathi Kalu Oghad,
reconsidered the scope of the constitutional
guarantee against self-incrimination.
• The basic question, in Kathi Kalu, was whether
fingerprints and handwriting samples were hit by
the Article 20(3) bar – or, in other words, whether
compelling an accused to provide their fingerprints,
or a handwriting sample, was equivalent to
compelling them to be a “witness” against
themselves.
• There can be no doubt that if – following M.P.
Sharma vs Satish Chandra, “to be a witness”
meant “to furnish evidence”, then compelled
taking of fingerprints or handwriting samples
surely come within its meaning. The Court
held, however, that Sharma’s observations,
on this point, were incorrect.
• It noted that “the giving of finger impression or of
specimen signature or of handwriting, strictly
speaking, is not “, to be a witness”. “To be a witness”
means imparting knowledge in respect of relevant
fact, by means of oral statements or statements in
writing, by a person who has personal knowledge of
the facts to be communicated to a court or to a person
holding an enquiry or investigation.”
• The Court’s thinking was revealed soon afterwards,
though, when it held that “the giving of a “personal
testimony’ must depend upon [the accused’s] volition.
He can make any kind of statement or may refuse to
make any statement. But his finger impressions or his
handwriting, in spite of efforts at concealing the true
nature of it by dissimulation cannot, change their
intrinsic character.
• The underlined portion is crucial, because it
demonstrates that, underlying the Court’s
seemingly textual interpretation of the word
“witness”, is a deep-sated fidelity to the crime-
control model. Finger impressions and
handwriting have an “intrinsic character”, that is
changeless, beyond the accused’s control and –
ultimately – verifiable. The content of a
“statement”, on the other hand, is entirely
within the control of the accused, and if it is self-
incriminatory, then it is just that much more
likely that it is distorted or untrue.
• Kuttan Pillai vs. Ramakrishnan holds that search of the
premises occupied by the accused without the accused
being compelled to be a party to such a search would
not be violative of the constitutional guarantee
enshrined in Article 20(3).
• Thrissur vs. P.J. Thomas states that mere production of
a document without compelling the accused to be
witnessed as such, will not amount to testimonial
compulsion within the meaning of Article 20(3).
• Rocky v. Vakkachan states that direction to produce a
document does not amount to testimonial compulsion.
Sec-91 CrPC doesn’t exclude an accused from its ambit.
• Kanti Kumar vs. State of Jharkhand states that CrPC
nowhere empowers the court to compel an accused to
produce any evidence against him.
 Nandini Satpathy vs. P.L. Dani
• Nandini Satpathy was directed to appear at the
police station for being examined in connection
with a case registered against her under the
Prevention of Corruption Act. On the basis of the
first information report, investigation was
commenced against her and she was interrogated
by the police with reference to a long string of
questions, but she refused to answer claiming
protection of Article 20(3).
• The Supreme Court ruled that the objective of
Article 20(3) is to protect the accused from
unnecessary police harassment and hence it
extends to the stage of police investigation apart
from the trial procedure.
• Further, this right to silence is not limited to the
case for which the person is being examined but
also extends to other offences pending against him,
which may have the potential of incriminating him
in other matters. It was also held that the
protection could be used by a suspect as well.
Delhi Judicial Service Association vs.
State Of Gujarat
• The Supreme Court has ruled that mere issue of a
notice of contempt of court to a person for pendency of
contempt of court proceedings against him doesn’t
attract article 20(3) because the contemner against
whom the notice is issued is not accused of an offense.
He does not stand in position of a person accused of an
offense merely on account of issue of notice of
contempt by the Supreme Court and, therefore, Article
20(3) would not apply in such a situation.
 Mohd. Dastgir vs. State Of Madras
• Here the appellant went to the residence of the Deputy
Superintendent of Police and handed him an envelope. On
opening the envelope, the DSP found cash in it, which
meant that the appellant had come to offer bribe to the
officer. The DSP refused it and asked the appellant to
place the envelope and the notes on the table, and he did
as told, after which the cash was seized by the Police. In
this case the Supreme Court held that, the accused wasn’t
compelled to produce the currency notes as no duress
was applied on him. Moreover the appellant wasn’t even
an accused at the time the currency notes were seized
from him. Hence in this case the scope of Article 20(3) was
not applicable
 Ramchandra Ram Reddy vs. The
State Of Maharashtra
• According to the court none of the tests out
of Brain-mapping or Polygraphy tests violated
Article 20(3) because such tests cannot be
said to be a statement made by a witness. At
most it can be taken as a s the information
received or taken out from the witness.
Some other cases also affirmed to Ramchandra Reddy Case:-

• Dinesh Dalmia vs. State Of Madras held that if accused failed to

co-operate with the investigation process , scientific investigation
methods may have to be carried out to find the truth. Held that
P300 test and Narco-analysis help in speedy trials and are
constitutionally valid.
• Sh. Shailender Sharma vs. The State was in the similar line stating
that it is necessary to keep in mind the necessity of the society at
large and the need of a thorough and proper investigation as
against individual rights while ensuring that constitutional rights
are not infringed.
• Santokben Sharmanbhai Jadeja vs. State of Gujarat said that
merely conducting/performing of a Narco Analysis Test on the
accused, the protection guaranteed under Article 20(3) of the
Constitution of India is not violated. As stated above, only and
only at the stage when the prosecuting agency is likely to use such
statement as evidence and if it is inculpating and incriminating the
person making it, it will attract the bar of Article 20(3).

But a different and a more persuasive view was seen in Selvi vs. State
of Karnataka
 Selvi vs State of Karnataka
Selvi vs State, decided by a three-judge bench in 2010, is
by far most detailed – engagement with Article 20(3).In
this case the Hon’ble Chief Justice, Justice K.G
Balakrishnan spoke of behalf of the Apex Court, and
drew the following conclusions:
• The right against self-incrimination and personal liberty
are non-derogable rights, their enforcement therefore is
not suspended even during emergency.
• The right of police to investigate an offence and
examine any person do not and cannot override
constitutional protection in Article 20(3);
• The protection is available not only at the stage of trial
but also at the stage of investigation;
• That the right protects persons who have been formally
accused, suspects and even witnesses who apprehend
to make any statements which could expose them to
criminal charges or further investigation;
• The law confers on ‘any person’ who is examined during
an investigation, an effective choice between speaking
and remaining silent. This implies that it is for the
person being examined to decide whether the answer
to a particular question would be inculpatory or
exculpatory;
• Article 20(3) cannot be invoked by witnesses during
proceedings that cannot be characterized as criminal
proceedings;
• Article 20(3) cannot be invoked by witnesses during
proceedings that cannot be characterized as criminal
proceedings;
• Compulsory narco-analysis test amounts to ‘testimonial
compulsion’ and attracts protection under Article 20(3);
• Conducting DNA profiling is not a testimonial act, and
hence protection cannot be granted under Article 20(3);
• That acts such as compulsory obtaining signatures and
handwriting samples are testimonial in nature, they are
not incriminating by themselves if they are used for the
purpose of identification or corroboration;
• That subjecting a person to polygraph test or narco-
analysis test without his consent amounts to forcible
interference with a person’s mental processes and hence
violates the right to privacy for which protection can be
sought under Article 20(3);
• That courts cannot permit involuntary administration of
narco-tests, unless it is necessary under public interest.
 Conclusion
Article 20 (3), invokes protection against self-incrimination and gives an
accused the right to remain silent over any issue which tends to incriminate
him. For the benefit of the Courts, the Supreme Court has distinguished
between the terms “witness” and “furnish evidence”, the former including
furnishing statements from one’s own knowledge and the latter referring to
simply presenting documents required by the court under which protection
under Article 20(3) cannot be sought. Under the law, an accused cannot be
tortured to make a statement or a confession and no duress can be
exercised in order to obtain some information out of him, in such a case the
statement would be void and the privileges under Article 20(3) would be
applicable. Narco-analysis tests, polygraph analysis etc. which refer to
involuntary administration of mental processes, are considered violative of
Article 20(3) and can only be done in a few cases as it disrupts the right to
privacy. But with the advancement in medical sciences, the certainty of such
scientific tests has increased and many jurists thinks that they provide an
effective tool to furnish evidence which help in speedy disposal of cases. By
balancing the harmony between the protective rights and the need for
speedy disposal