Lie – Detection Tests? : Touchstones to Detect Lies or the ‘Sword of Damocles’ which neither benefits the ones who consent to it nor the ones who deny their consent!
Lie – Detection Tests? : Touchstones to Detect Lies or the ‘Sword of Damocles’ which neither benefits the ones who consent to it nor the ones who deny their consent!

Lie – Detection Tests? : Touchstones to Detect Lies or the ‘Sword of Damocles’ which neither benefits the ones who consent to it nor the ones who deny their consent!

This article has been written by Akash Anurag and Shivam Singh. Akash is an Associate with L&L Partners, Shivam is a IIIrd Year Law Student at NLU Jodhpur.

In  a rather surprising turn of events, the Uttar Pradesh Government in 2020 had ordered for the conduction of Polygraph and Narco Analysis tests of the family members of the victim (who were neither the accused nor have they been charged with any offence by the Police or the SIT)  at the end of the investigation of the Hathras Rape Incident. The tests were also ordered to be conducted on the arrested accused and the police officials involved. The victim’s family, rightly exercising the right available to them under the law denied their consent for these tests. Thus, the tests were not conducted upon them.

It is surprising that the government at the very outset of the investigation by the SIT has ordered for the Lie – Detection tests. This is because generally in criminal cases a lie detector test is resorted to as a last resort concluding that the investigation has reached a dead end and that there is no way left for discovering evidence or information.

All this tends to lead some important issues such as whether these lie detection tests really bring out the truth especially when the results of the same are not admissible as an evidence before a court of law and as to what are the potent dangers of it slowly becoming a police/government order norm in a justice delivery system when seen in the light of a society such as ours.

Polygraph and Narco Analysis – An Introduction.

A polygraph test, a brain mapping test and a narco – analysis test are generally the three types of “Lie Detector” tests employed by the Indian Police for investigation. A polygraph test involves measuring of physiological responses of a respondent such as the heart rate, blood pressure and respiratory system. The test works under the assumption that if a respondent was lying about the facts of the case, the same would produce a irregular or a heightened measure of the physiological responses. In a narco – test, a responded is injected with a drug called the “truth serum” which leaves them in a semi-conscious state. The test works on the assumption that the subject in such a semi – conscious state is less inhibited and more likely to divulge information.

Lie – Detection Tests and Fundamental Rights- The Supreme Court’s Take

Grave concerns have been expressed with respect to Lie Detection Tests and possible Fundamental Right violations. All these concerns centre around the intertwined question of the necessity of consent and whether a lie – detector test can be made compulsory for an accused/respondent by an investigating agency. The Supreme Court in its landmark ruling in Selvi v. State of Karnataka held that any type of lie detector test cannot be held without the consent of the respondent meaning that the respondent has the right to deny their consent for the same. An involuntarily conducted lie – detection test would not only violate the fundamental right against self incrimination [Article 20(3)] but also the right to life vis- a -vis the right to privacy (Article 21).

The Supreme Court in the Right to Privacy Judgment (Puttaswamy) found lie detection tests to be substantially intrusive into one’s mind and body and hence involuntary conduction of such tests would violate Article 20(3) and Article 21 of the Constitution. Thus, it is very clear that a lie detection test cannot be conducted on a respondent or an accused without their voluntary consent (NHRC Guidelines also state this).

Results of Lie Detection Act – An Evidence Admissible Under Law?

The information that is so collected through a Lie – Detector Test is not admissible as evidence under the Evidence Act as the subject does not exercise conscious control over his/her response. It only qualifies as Information under Section 27 of Evidence Act on which the police has to discover more information/material. The information/material so discovered can be an admissible evidence.

“The Sword of Damocles” Called the Lie Detector Test – Underlying issues with the test

Experts all over the world have raised concerns over Lie – Detector tests and the information and results of these test have often been unreliable and don’t necessarily reveal the truth.  Thus, a legal system like India where the Criminal Law is based on the principal of innocent until proven guilty and a crime has to be proved beyond reasonable doubt, Lie Detector tests do not seem to be the most reasonable recourse. While the 2010 judgment of the Apex Court in Selvi  lays down the law with respect to involuntary conduction of the lie detection test being unconstitutional, there are unfortunately no laws in the country which codify the same. In the absence of this and the lack of awareness with respect to laws, many a times the respondent/accused is not even aware of his/her right to deny their consent for the same. A large number of cases unlike the Hathras incident do not attract the same amount of national and media attention so that the person who has been ordered to appear for the lie detector test can be made aware of his/her right.

The refusal to undergo a lie detector would not prejudice the opinion of a court of law since it is nothing else but a valid exercise of one’s right. However, in an emotionally charged society such as ours, the refusal or the consent to undergo a lie detection test is often taken to be the character certificate of the truthfulness of an accused/respondent. Thus, in order to avoid societal prejudice being created and to get a validation from the society, the accused/respondents often do not exercise their right of not consenting to the test

Rubbing Salt on the Wounds of the Hathras Victim’s Family – Creation of Possible Societal Prejudice Against the Victim’s Family ?.

It was very surprising to order the victim’s family to appear for the lie detection tests too since they are not an accused in the Hathras Case. As per a recent decision of the Kerala High Court (based on Supreme Court’s decision in Manoranjan Singh Case),“the information obtained through lie detector test of a person who is not even an accused at the time when the test is conducted does not even qualify to be information which is to be proved under Section 27 of Evidence let alone be it an evidence in the first place.”

The order and the rightful refusal of the family to appear for the tests has huge potential of creating a societal prejudice against a family which has already suffered too much at the hands of the arms of the law (police). [rn1] 

Conclusion and Suggestions

The United States Supreme Court back in 1963 in Townsend v. Sain held confessions extracted due to “truth serum” injection to be inadmissible on account of it being unconstitutionally coerced. Modern legal systems, globally, have been reducing the use and reliance on lie detector tests.  However, the Indian Criminal System seemingly has over the years  shown an increasing affinity towards these tests. As already discussed, the results of these tests cannot be relied upon conclusively by the court for the establishment of guilt. Thus, the need of the hour is to reduce the reliance on these tests. Lie Detector tests have assumed the nature of the ‘ Sword of Damocles’ in the Criminal Law regime. The accused/respondent who takes up these tests is under the risk of wrongly being considered a liar on account of the test results. The accused/respondent who exercise their right and do not consent to the conduction of these tests upon them run the risk of being considered a liar/guilty by the society as they risk being perceived by the society at large to be hiding something/lying. Thus, the use of Lie – Detectors tests should only happen with the permission of the courts as a last resort rather than becoming the norm.

 [rn1]Hyperlink should be added to cite some source.

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