Polygraph Test & it’s Legal Sanctity: Lawyers Advice
The Polygraph test, also called as the Lie-Detector test falls under the interrogation techniques used in criminal investigations. This test is likely to be used when the accused may be deceitful about the relevant facts of a case. The polygraph test is able to produce the persons physiological responses like his blood pressure, heart rate pulse and galvanic skin resistance, to see whether he is telling the truth or not.
The National Human Rights Commission of India had issues certain guidelines with regards to conducting a polygraph test on persons.
The following are the legal guidelines to be followed by the investigating officers:
1) The test must be administered on the accused only on the basis of his consent. He should be given the option as to whether he wishes to be administered with such test or not.
2) If the accused has volunteered for the Lie Detector Test, then be must be given access to a lawyer and any implications of the test, like physical, emotional as well as legal consequences, must be explained to the accused by his lawyer and the police.
3) Recording of the accused’s consent must be done before a Judicial Magistrate.
4) The accused must be represented by his lawyer during the hearing before a Magistrate.
5) At the time of hearing, the accused must be explained that his statement which shall be made by him, would not amount to a confession but would be the ‘status of a statement’ made to the police.
6) All factors relating to the detention of the accused and the interrogation, must be taken into consideration by the Magistrate.
7) The recording of the test must be carried out at an independent agency (like a hospital) and must be conducted within the presence of his lawyer.
8) The medical and factual narration of all information received must be taken on record.
For many years, the Commission was receiving complaints with regards to the Polygraph test and its administration done by coercion and without consent. In 2010, the Hon’ble Supreme Court in the landmark judgment, Selvi & Ors. v. State of Karnataka [Criminal Appeal No. 1267 of 2004], held that, “No individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.”
This landmark judgment deals with Article 21 and Article 20(3) of the Constitution of India, which ensures that the individual is not compelled to take the test. However, if the person volunteers to take the polygraph test, the results cannot be admitted as evidence by themselves, because the person is not in a conscious state of mind, during the test. Therefore, consent to carry out the test is of utmost importance otherwise the polygraph test, would not be identified as a legal technique.
According to the Constitution of India, Article 21 provides the Right to Privacy and Article 20(3) protects the accused from self-incrimination. Both these rights must be read together in order to ensure that the accused is not coerced to take the polygraph test and his consent is taken to administer the same. Taking such test would compel the accused to give evidence against himself which is prohibited under Article 20(3).
No person, either the victim or the accused shall take the Polygraph test if such person is suffering from high blood pressure, asthma, hard of hearing, is a lunatic or is bearing a child.
In the case of Jaga Arjan Dangar v. State of Gujarat, [R/SCR.A/6403/2018, the Court held that “when such test is being conducted, the concerned person has the right to remain silent on questions which may incriminate him.” This simply means that, if the polygraph test is being conducted, the person, apart from his right to privacy and protection from self-incrimination, has the right to remain silent if any such question may compel him to give evidence against himself.
Therefore, it can be interpreted that, without the consent of the accused, the polygraph test cannot be conducted, and if the test is conducted without his permission, he has the right to remain silent in matters which may incriminate him. Thus, if the accused does not give his consent to take the test, he cannot be coerced towards the same, as it would be in violation to Article 21 and Article 20(3) of the Constitution of India.
The National Human Rights Commission vide letter no. 117/8/97-98 dated 11/01/2000, https://nhrc.nic.in/sites/default/files/sec-3.pdf
Authored By: Adv. Anant Sharma & Sameera Singal