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Constitutional Validity of Poly Graph Test

The Constitution
by NCinDC

CHANGE IS THE RULE OF JUSTICE

Forensic Science in criminal investigation and trials is mainly concerned with materials and indirectly through materials with men, places, and time. Among men, the investigating officer is the most important person. Infact, it is he whose work determines the success or failure of the application of forensic science in the processing of a criminal case. If he fails to collect the relevant correct evidence, allows them to be contaminated or does not provide correct samples for comparisons, the findings of a forensic scientist will be useless; nay, they will be supportive to the culprit. Material are identified and compared with the processes of forensic science. They establish the presence or absence of a link between the crimes, the time of occurrence. The important materials, therefore, form the various chapters of the book. In addition, the place of occurrence being the most important source of materials has also been discussed.

For as long as human beings have deceived one another, people have tried to develop techniques for detecting deception and finding truth. In today’s world, the scenario of justice, the traditional sources of proof, eyewitnesses account, confessions have gone awry. The trials take just too long to keep the witnesses from turning hostile and criminals are turning cleverer and more scientific. It is important that the prosecution agencies rely on something more authentic, more concrete and more productive in terms of convictions without the police having to resort to the third degree methods that not only violates fundamental human rights but also fail to produce positive results most of the time. There has to be something that is available; objective, and hence not prove to the whims of the witnesses. The answer is provided as science as by scientific evidence (lie detector test) is more or less exact far more reliable and does not turn hostile under threats. Lie detection took on aspects of modern science with the development in the 20th century of techniques intended for the psycho physiological deception, most prominently polygraph testing. The polygraph testing or instrumental measures several physiological processes (ex. heart rate) and changes in these processes. From the charts of those measures in response to questions on a polygraph test, sometimes aided by observations during the polygraph examination examiners infer a psychological state, namely, whether a person is telling the truth or lying. However, in India, we do not seem to realized how vast is the potential of lie detector science, have been far less than successful in developing a temperament in our police to apply scientifically viable evidence, pain stakingly begotten after long arduous hours in the court room.

It is frequently suggested that the polygraphy or the lie detector test works because of the fear of offenders of being found to be lying. Polygraph or lie detector has a variety of uses. First of all it can identify the guilty people, second is it can establish the truth of statements made by witnesses or informants. Third is it can eliminate suspects. Fourth is it can save money by shortening investigations. There is urgent and wide spread need for the application of forensic science in the criminal justice delivery system. The present day scenario of crime investigation and prosecution of criminals, in India it is a sad sight. A large percentage of the trials, in heinous crime ultimately, end in acquittals. The official figure (1998) for the acquittal is 93% whereas unofficial figure is even above 96%. It is estimated that the prosecution agency spends lakhs of rupees in each trial. Thus, not only a dangerous criminal goes scot-free but the huge amount of public money is also wasted. These frequent acquittals also embolden the criminals and escalate crime and multiply criminals. 

In the UK, where one of the accused was facing trial for eleventh murder of his own father this time. He was acquitted in the previous ten murders. It shows the need of lie detector test. 

The need for the application of science in the dissemination of justice is pressing. Many factors are responsible for the same, which will be included in this essay after constitutional validity. Constitution is an umbrella in which lot of rules, norms are kept to regulate human behavior and for the welfare of the human mankind as well as for the upliftment of society. Today when our country is in 21st century we must understand the validity of polygraph or lie detector test to keep the faith of every individuals on court of law and on court of justice.The main legal provisions which govern the expert evidence (LIE DETECTOR TEST), are in Indian constitution, Indian evidence Act; 1872, Code of Criminal Procedure; 1973 and Identification of prisoners Act.

The main provision in the Indian Constitution is the Article 20 (3). It states, “No person accused of an offence can be compelled to be a witness against himself”. The problem, which arose from the enactment, was legion. Could a person be forced to give fingerprints, footprints, photographs, measurements, handwriting, etc. The constitutional bench of the Supreme Court has solved the problems since through a landmark decision. It held that the above type of clue materials become evidence only after their evaluation. And the evaluation instead of helping the prosecution may help the accused. It can be seen by reading the facts of the case state of Bombay v kathi kalu, 1961(2) cri LJ 856 (sc).

Threatened with being forcibly subjected to the lie detector tests by the police, certain persons petitioned the Bombay High Court to declare such methods illegal and violation of their fundamental rights. The right against forced self-incrimination, widely known as right to silence is enshrined in article 20(3) of the Indian constitution as well as in the Criminal Procedure Code. It has its equivalents in the Magna Carta, the Talmud and the law of almost every civilized society. The Bombay High Court had to decide whether forcing the petitioners to undergo these tests would violate their right to silence and compel them to furnish evidence against themselves. While rejecting the petitioner’s claims and allowing the police to subject people to these tests, the judgment makes certain far reaching pronouncements which it is respectfully submitted, are legally wrong, contrary to authority and logically unconvincing. In the course of the judgment, justice palshikar for himself and justice kakade drew a distinction between a “statement” (made before a police officer) and “testimony” (made under oath in court). He held that the right against self-incrimination applies only to court proceedings and not to police interrogations.The claim that the protection of Article 20 (3) operates only in the courtroom and not in the police station had earlier been rejected in M.P.Sharma’s case by a very strong constitutional bench of eight Supreme Court judges and again thereafter in kathi kalu oghad’s case by a constitutional bench of 11 supreme court judges. Justice palshikar held that compelling a person to undergo the test would not violate the rights, as the forcible extraction of information simplicitor did not necessarily mean that the information would be incriminating. According to the learned judge, whether the extracted information was incriminating could only be ascertained. If it was incriminating, it was not admissible as evidence in a court of law. He therefore held that the petitions were premature, meaning thereby that they should be filed only after the incriminating statements forcibly extracted from the petitioners are sought to be used as legal evidence. It is unlikely that such reasoning would be accepted by anyone who values his personal liberty. On the basis of above arguments we can understand that synonym of Article 20(3). The question arises here that why police are blamed therefore not reaching or helping in justice. If they cant get freedom to get the truth then it will be tougher to get justice. There should be personal liberty to every individual but when any person comes into the frame of suspect the police has every right to go into it and search for the truth. Today the gravity of crime, act to perform crimes has been changed so it is important that scientific evidence like lie detector test should be used. For the law against compelled self-incrimination to have any substance, it must apply before the person is compelled to incriminate himself. In the CrPC, the legislature has guarded a citizen’s right against self-incrimination. Section 161(2) states that every person is bound to answer truthfully all questions…put to him by (a police) officer, other than questions the answers to which would have a tendency to expose that person to a criminal charge, penalty or forfeiture. Evidently, it has been left to the person being interrogated to decide whether the answer to a question would be self-incriminating and, if so, to withhold that answer and keep silent. It would appear that the learned judge has not considered this provision. This notwithstanding, it is respectfully submitted that a judicial order cannot take away what has so unequivocally been given by parliament and the constitution. But the question arises here that why should our parliament and constitution give right to those persons who are violating peace and order. Those persons who are rapists, murder, barbaric act in criminal nature…why should they get any right and why their should not be lie detector test on them and why polygraphy should not be valid in INDIAN scenario.

Moreover, by then the information, even if untrue, is in the public domain, your personal liberty and privacy have been violated, your body has been injected with narcotics and information has been forcibly extracted from you. This is true but it should be in law but is should be used depends upon the gravity of crime. If a person is lying and he has committed murder or any heinous act or against the security of a country why there should not be these tests? If any person is committing anything against the peace of country there is no gain of talking of his rights. Every person must perform their duties.  In Nandini Sathpathy’s case involved facts very similar to the present case. The petitioner (a former) chief minister of orissa) had complained that she was being prosecuted for her refusal to answer police questions about a corruption case lodged against her. She claimed that her assertion of silence and refusal to answer questions was well within her rights under article 20(3) and section 161(2) CrPC prosecuting her for silence, she argued amounted to compelling her to make self incriminating statements. Here it depends upon the nature of corruption. If the lady has committed simple mistake or not a heavy corruption then its ok otherwise why there shouldn’t be any scientific use like lie detector test if any person is committing heinous act. We know our politictians; they can ruin our people and sustain their lives then why not there be any constitutional validity of lie detector test. There must be article 20 (3) but there is no loss in using lie detector test depending upon the gravity of facts of the cases. If the criminals are not doing their duty why should they get any right? It can be difficult but to bring peace, to check security of a nation there should be use of scientific evidence.

There is another aspect of the division bench’s judgement, which is a mater of cocern. It held that these tests involve “minimal bodily harm.”This statement appears to be unfounded and contrary to medical opinion and practice. Subsequent studies have vindicated this view; infliction of bodily harm is an offence and even if minimal, is punishable by three months imprisonment (section 352 IPC). Hurt is defined as any pain, disease or infirmity.”Injury”is defined in as “any harm whatever illegally caused to any person in body, mind, reputation or property”(sec44). Inflicting hurt (sec 323), causing hurt to extort incriminating information (sec 330), causing hurt by a substance harmful to the body (324) or administering any stupefying, intoxication or unwholesome drug (sec 328) are offences punishable by imprisonment from between one to ten years.Therefore,causing even “minimal bodily harm” through the compelled administration of a narcotic is a serious offence further aggravated when it is committed by police officers to extort incriminating information. It denudes the right to silence of all significance and strips the right against forced self-incrimination of all meaning. It also empowers the police to commit illegal acts and exempts them from the rule of law.

Another act which comes for the constitutional validity of lie detector test is The Indian Evidence Act- (sec.45). This is the most important section of the Act vis-à-vis polygraphy. It states” when a court has to form an opinion upon a point of foreign law or of science or art, or as to the identity of handwriting or finger impressions, the opinion upon that point, of persons specially skilled in such foreign law, science or art or in questions as to the identity of handwriting or finger impressions are relevant facts. Such persons are called experts. There has been a lot of confusion about what contitutes science. Contradictory judgments have cluttered the earlier case law. But by and large the recent supreme court judgment State v Chaudhary AIR 1996 SC 1491 has not only eliminated the absurdity relating to typescript identification but is has also provided the guideline for the induction of new types of scientific evidence (Lie Detector Test, Brain Printing, Etc). The question arises here that who are experts then. Section 45 indicates that who are experts or we can say in another words as Specially Skilled persons! Special skill has not been defined but by convention is it acquired through Basic education, Training, Experience, Research, and Participation in scientific gatherings. The second most important section relating to expert evidence is section 73 of Indian Evidence Act. This section specifies what comparison material for disputed handwriting signatures or seals (or for finger prints) can be utilized by courts. This section has given headache all round. The main controversial points are: Should the comparison material be examined only by the judge with or without the assistance of the experts. This controversy has been settled by the Supreme Court in a landmark judgment of Ajit Sachit Muggvi V State Of Kerala, AIR 1997 SC 3255. They have decided that the assistance of a handwriting expert should be obtained as a matter of prudence. At what stage can the court order a person to give specimens: at the investigation or at the trial stage? This aspect is still in the melting pot though Supreme Court has ruled that the court cannot order taking of specimen if the case is not pending trial before it like in the case of Ram Babu Misra V State, AIR 1980 SC 791. Section 46 is about Facts bearing upon opinions of experts. Section 51 is about grounds of opinion when relevant. Section 159 is about Refreshing Memory.  Evidence Act plays an important role in the Constitutional Validity of polygraphy. Especially section 45 and section 46 is a key. We can see that here lot of emphasis has been given on experts and few cases are enshrined in our constitution in which judges have taken use of experts. As every coin has two sides it had demerits too but experts can be given some power so that they can reveal justice and truth from the criminals. Another law is Code Of Criminal Code, 1973 in which the main sections are related to expert evidence are section 292 and section 293. Section 292 is applicable to only mint master and other currency officers. Its contents are similar to those of section 293,which has wider applications. Sec 293 states that any document perporting to be a report under the hand of a government scientific expert to whom this section applies, upon any mater or thing duly submitted to him for examination or analysis and report in the course of any proceedings under this code, may be used as evidence in any inquiry, trial or other proceedings of the code.  The section has some features like it specifies the government experts, who are exempted from personal appearence. Describes modes for personal attendance of the experts for additional evidence, etc; for cross-examination or additional related evidence. It fixes no limitation on the nature/extent of the contents of the reports. One important Act is The Identification of Prisoners Act. The sections 2,3,4,5 & 6 of the Act are relevant to the expert evidence. They provide legal sanctions for obtaining evidence by using lie detector test or by using any scientific method from the suspects/accused/convicts. Lie detector test is becoming indispensable in the dissemination of justice because of the failure of the old order, excellence and reliability of its tools and techniques and the ever availibility of the wherewithal of its assistance. It should be adopted on a much larger scale that it is being adopted, if our criminal justice system has to serve the society effectively. We saw four legal bags through which we can see the constitutional validity of polygraphy/lie detector test/scientific methods or we can say as for Forensic science. All this play an important role in society because today we can’t overrule the use of scientific methods and our many cases have shown the importance of it. Now we will see certain political kind of cases.

Congress leaders must undergo lie detector test: BJP. Today even the political parties are understanding the value of it. On July 12,2004 demanded that the CBI conduct lie detector test on many leading political members of congress. It was a Telgi’s case. On December 15, 2004 in the newspaper of Mumbai news came that Telgi to undergo lie detector test. Abdul karim telgi, the alleged mastermind behind the multi crore fake stamp racket, and several others arrested along with him are to undergo lie detector tests, a court ruled today. (Newspaper editing). A special court constituted under the Maharashtra Control Of Organised Crime Act (MCOCA) gave permission to the Special Investigation Team (SIT) probing the fake stamp racket, to conduct lie detector tests on nine persons, including Abdul Karim Telgi. It is important that the CBI or Police shouldn’t take gain of it but they need certain powers in them to reach at justice. How can they prove justice if everyone will look upon them with doubt, we the people of India need to understand the value of duty and do something and promote scientific methods because every politician will make laws for their welfare not for the ruin of individuals. In May 13,through

Indian Express a news came that “Delay may hamper lie detector test in Shivani murder case”. Several forensic experts and police investigators point out that though shivani was murdered on January 23,untill last week investigators hadn’t been able to get hold of a lie detector. The delay, they say, will possibly cloud or dilute a lot of important information. Says an officer investigating the case that we are sure we will establish that one or more persons are lying, or holding back i9nformation related to shivani’s murder. He adds Of course the results of lie detector test will not be admissible in a court of law. The report is merely to facilitate investigations. But he also said that in a city like Delhi, where there is lot of crime, which even raises questions in the parliament, a lie detector test is very crucial to speed up investigations.

Why there shouldn’t be lie detector test and why it is not admissible in court of law? When the Police, CBI all give their lot of time and at last our court says that it is invalid, it’s really very poor. If a person is catched by this method why there shouldn’t be any law to make use of lie detector test to speed up the investigations and justice. A Delhi Police Chief Kakkar said that before we put a person to the lie detector test, we almost always know where he is lying. The lie detector test is meant to be a confirmation of these doubts. When we frame the questions, with the help of psychologists, we keep this in mind. In another case “A sub-inspector accused of killing constable to take lie detector test”. Accused of killing a woman constable and also booked under the Prohibition Act, PSI rakesh pathak of Kadi Town police station took lie detector test. Director General of Police A K Bhargav said we are conducting the lie detector test, as we do not want such instances to be repeated. All these cases can teach us that how much this test is important and can play an important role in the development of the society and in controlling of peace and orders. One aspect can come that certain people will say that it is Violative of Article 21 of the Indian Constitution but we should understand the value of it and grant this method to speed up the criminal justice system of our society. Now we will evaluate our Court and its systems. The attitudes of the courts vary tremendously.

* Some courts under rate expert evidence. They feel that it is weak evidence.*Some courts are hostile towards the evidence. They feel that the expert assumes the functions of the court.*Some courts fear the expert evidence. They feel they cannot understand the evidence. They either ignore the evidence. They either ignore the evidence or accept the ipse dixit of the expert.*Some courts believe that the evidence is not their worry. The counsels should understand the argue about it. The court should decide the case on their arguments alone.

Such attitudes are undesireable. The scrutiny of lie detector test by the court is necessary. First the evidence can turn the tables. A suspected criminal may prove to be an innocent person or vice versa. Second, most of the lawyers on both sides feel shy of evidence. They may fail to properly present or critically appraise the evidence, which may lead to the miscarriage of justice. Third, a clever lawyer may exploit the general lack of knowledge to twist the evidence to his advantage and misuse it. Fourth, the prosecution counsel is interested in the prosecution case only. He will expose only those aspects of evidence, which are useful to the prosecution case and goes no farther. Fifth, the defence counsel, on the other hand, limits his probes to only those aspects, which are beneficial to the defence case. In other words it means his efforts would be to demolish the prosecution evidence. Thus it is the judge only who is interested in real justice. He should, therefore ascertain the facts, assimilate them and utilize them in the dissemination of justice. The newer generation of the judges should especially be aware of their responsibilities in this regard as in the future the expert evidence will play more decisive role. It will be used more frequently, almost in all cases. The scientific methods in the detection of the crime are daily improving and are becoming accurate, sensitive and specific.

Reaching to the conclusion of Constitutional validity of polygraphy (lie detector test) we can combine the thesis of above arguments and can say that the gravity of crimes has been changed. The reasons are the quick means of transport and the high density of population in cities have facilitated the escape from punishment after the commission of crime. The criminal can hide himself easily these days. The individual is becoming self-centered. He especially in cities, don’t not know even his next-door neighbors. Thus even if the neighbors are killed, the murders come to light sometimes only when the bodies putrefy and emit foul smell. The technical knowledge of an average person has increased tremendously in recent years. The criminal is using science. The investigating officer therefore needs scientific methods to combat the modern scientific criminal and the answer is lie detector test. It can help in the criminal system of India and give upper hand in the development of the society. If we do not adopt lie detector test or other scientific evidence it will be easy to say that we are giving way to criminal to run away. The time has come when we should become smart and court grants the validity of polygraphy. Its true that there can be misuse of it but every coin has two sides so lets give one chance to expert person to bring truth and justice through lie detector test.

This is Gyan Prakash, an Advocate working in a law firm.

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Posted on May 11, 2011 by , Reply

Constitutional Validity of NArco- Analysis test

Article

Constitutional Validity of Narco-Analysis Test

Prepared by:  Urja. B. Dave

Nirma University of Science and Technology

Institute of Law

Ahmedabad

Constitutional validity of Narco Analysis Test

Introduction:

Development of new tool of investigation has led to the emergence of scientific tools of interrogation and criminal investigation like NARCO ANASLYSIS TEST. However, its application must be assessed objectively so that it can be replaced by existing conventional methods of interrogation. Narco analysis test can be effective as an alternative to barbaric third degree methods. Care should be taken that it is not misused or abused by investigation officer and should be correlated with corroborative evidence. Such test is a result of advancement not only in Forensic science but also in Science and Technology. It often Raises doubts regarding basic human rights and about their reliability.

Legal questions are raised bout validity with some of them holding in the light of legal Principles and Perceptive and some others rejecting it as a violence of constitutional Provisions.

Historical perspective:

In 1922, Robert House, an obstetrician from Texas, experiment the use of narco analysis in the interrogation of suspected criminals. He arranged to interrogate two Prisoners in the Dallas country jail by using Scopolamine1, whose guilt seemed clearly confirmed. Both the prisoners denied the crimes for which they have been detained and upon trial were [1]found not guilty. After the successful experimentation, House concluded that an accused under the influence of scopolamine could not lie.

The Narco analysis during past was used only by psychiatrists to find out the psychological reality. Nevertheless, the application of the Technique was adopted frequently in the criminal investigation from early 1950s.

Narco analysis was rather unheard in India until recent past. It was first used in 2002 in the Godhra Carnage Probe. Narco analysis test once again is in the limelight in the contest of Aarushi Murder case. It was also used in Nithari village serial killings case, Telgi Stamp paper Scam, Arun Bhatt Kidnapping case in Gujarat, and others.

What is Narco Analysis Test?

The term Narco-Analysis is derived from the Greek word “narke” meaning anesthesia and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, which acts as Central Nervous System depressants, and by virtue of this, they produce a wide spectrum of effects from mild sedation to anesthesia.

Narco-Analysis tries to recall repressed materials. The therapist gives post-hypnotic suggestion to patient. Repressed material is recalled during influence of the drug and repressed conflict of the patient is located and cured.

Procedure of Narco-analysis test:

The narco analysis test is conducted by mixing 3 grams of sodium penthol or sodium amytal dissolved in 3000ml of distilled water. Narco test refers to the practice of administering barbiturates or certain other chemical substances, most often penthol sodium, to lower a subject’s inhibition, in the hope that the subject will more freely share information, a person is able to lie by using his imagination. Experts inject a subject with hypnotics like sodium penthol or sodium amytal under controlled circumstances of the laboratory. The dose is dependent on the person’s sex, age, health and physical condition. The subject, which is put in a state of Hypnotism, is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestion. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers. Wrong dose can send the subject into coma or even result in death.

The subject is then interrogated by the investigating agencies in the presence of doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence.

The procedure is conducted in government hospital after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.

It is established that in of the total number of the individuals subjected for narco analysis are found to be innocent. Therefore this technique not only helps to identify the real perpetrator of crime, conspiracies, displacement of evidentiary items etc. but also to identify the innocents within a short period.

Pros and Cons of Narco Analysis Test:

According to police Narco analysis is a scientific tool of investigation, it helps a lot in crime prevention and detection. It is definitely considered better than third degree treatment of the police to extract truth from an accused.

It is not possible to determine the correct dose of the drug, which varies according to the physical constitution of the subject, but also his mental attitude and will power. A wrong dose can send the subject into coma or even cause death, thus resulting in legal complication. The person to administer them has to be highly qualified physician.

The test can be misused by suggestive questioning by the investigating agencies. Psychiatrists hold that some individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually happened. Therefore, while patients under narco analysis may find it difficult to lie consciously, they can certainly say things that are on the surface on their mind. The patient may say things that he wished were true and not that are necessarily true.

Constitutional Validity:

Some legal experts consider that narco analysis test during the investigation is a blatant violation of Art. 20(3) of our constitution. Art. 20(3) says, “No person accused of any offence shall be compelled to be witness against himself”

The conditions for the applicability of Art. 20(3) are:

There must be a person accused of any offence. There must be compulsion against such person. Such compulsion must be to be witness and Such person must be compelled to be a witness against himself, in other words to incriminate himself by his evidence.

All these four ingredients must be necessarily co exist before the protection of Art. 20(3) can be claimed. If any of these ingredients is missing Art. 20(3) cannot be invoked.

The controversy regarding test is against the fundamental right is due to the modus operandi of the test. In the test, the drug is administered which suppress the reasoning power without affecting the memory and speech.

The test also goes against the maxim “Nomo tenetur se Ipsum Accusare” which means no man not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime of which he has been accused. The previously mentioned principle of the maxim is also incorporated in the section 161(2) of the code of criminal procedure.

Sec. 161(2) of Cr. P. C says that such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than the questions the answer to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

The most important case in this regard is that of Nandini Satpathi v. P. L. Dani (AIR 1978 SC 1025).

Facts: Nandini Satpathi was a former chief minister of Orissa, against whom a case was registered under the Prevention of Corruption Act. She was asked to appear before the Dy. S. P for questioning. The police wanted to interrogate her by giving her a string of questions in writing. She refused to answer the questions because it was a violation of her fundamental right against the self-incrimination.

In the previously mentioned case Krishna Iyer, J. has widened the scope of the protection. The issue before the court was whether a potential candidate for accused can avail of the privilege. It was held that the right extends to witness & the accused alike. The expression ‘accused of any offence’ must mean formally accused in presenti not in futuro. It applies at every stage at which furnishing of information & collection of material takes place.

Thus, Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Satpathi. No one can forcibly extract statements from the accused, who has right to remain silent during the course of interrogation (investigation). By administration of narco analysis test, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity & legitimacy of the Right to Silence.

It is an accepted legal position that the protection of Art. 20(3) do not extend to compulsory production of material or compulsion to give specimen signatures, finger impression or blood samples. However, Narco analysis is still different & clearly distinguishable from giving specimen signatures or blood samples or even taking a polygraph test because except in case of a narco analysis, the accused retains his control over what he is doing or saying & at no point of time can he be compelled to disclose any such information that he wants to keep to himself. Giving blood sample or specimen signatures is much like allowing the investigation officer to search the residence of the accused & go through his belongings in search of evidence. That is very much permissible.

The legal & constitutional infirmity of narco-analysis lies in the fact that it takes away one’s control on one’s mind, which brings it in category of mental torture & torture of all kind fall foul with Art.21.

Now the question may arise that the so-called ‘consent form’ sign by the accused supplies the requirement of the ‘voluntary discloser’. It is incorrect as in the court mandated narco analysis, the ‘consent form’ has absolutely no relevance because the compliance of a judicial order passed by a competent authority to compel obedience. Therefore, if a competent court orders narco analysis the order has to comply with, unless it is challenged by the superior court. The accused has no choice against the court order. Therefore, there is ‘compulsion’, there is ‘testimony’, and it is surely ‘testimony by compulsion’. However, compulsion per se is not illegal. Therefore, the only one question is whether the compulsion is legally sound.

The Madras High Court in Dinesh Dalmia v. State of Madras held that subjecting an accused to undergo such scientific tests would not amount to breaking his silence by force. He may be taken to the laboratory for such test against is quite voluntary. Therefore, such process does not amount to compelling a witness to give evidence against him. When the human rights activist adopt third degree methods to extract information from the accused, it is high time the investigating agency took recourse to scientific methods of investigation.

The Bombay High Court in Abdul Karim Telgi case held that “certain physical tests involving minimal bodily harm” like narco analysis test and brain mapping does not violate Art. 20(3) and did not compromise the constitutional protection against self-incrimination. The important point is that the confession or statement made during narco analysis is not admissible as evidence in a court of law, and that is the reason why the protection against self-incrimination under Art. 20(3) is not breached. In the above-mentioned case Bombay High Court seems to have held that nacro analysis is permissible because it involves “minimal bodily harm”, which implies that all such methods of extracting information that inflict minimal bodily harm are legally permissible.

However, the final judicial pronouncement on the constitutional status of narco analysis is yet to come. In 2006, Supreme Court of India stayed the order of a metropolitan judge to conduct nacro analysis on K. Venkateswara Rao in the Krushi cooperative Urban Bank case. The issue required to be settled by a court decision because Mr. Rao refused to sign the consent form & hence the Forensic Laboratory at Gandhinagar declined to conduct a narco analysis test without a duly filled and signed consent form. The Supreme Court verdict is still awaited.

Conclusion:

Law is a living process, which changes according to the changes in society, science, and ethics and so on. Law is not static but it is dynamic. The legal system should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. The criminal justice system should be based on just and equitable principles. The issue of using narco analysis test as a tool of investigation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be cleared in the near future. In a situation where narco analysis is gaining judicial acceptances and supports despite being an “unreliable and doubtful” science, we have to seriously rethink about its legal and constitutional validity from human rights perspective.

The criminal justice system is based on the principle that “let hundred guilty go unpunished rather than an innocent is punished”. To uphold this principle narco analysis test has to be made compulsory in cases where the interest of public is involved. For this purpose, it is necessary to amend or to enact new laws for that purpose so that justice may be delivered in a fair manner.

[1] Scopolamine is also popularly known as tooth serum.

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Posted on January 3, 2011 by , Reply

The Tribunalization of Justice: the Constitutional Validity of the National Tax Tribunal

Introduction:

 

The passing of the Forty Second Amendment to the Constitution of India in 1976, tribunals became key dramatis personae in the justice delivery system. In order to achieve the objectives of the amendment, which was to ensure speedy disposal of cases, an array of tribunals were set up. These included the Administrative Tribunals, the Rent Control Tribunals and also Tax Tribunals. The constitution and functioning of these tribunals have been controversial and intensely debated. The Constitution of the National Tax Tribunals, through the passing of the National Tax Tribunal Act, 2005 in pursuance of Article 323-B (1) (a). The Act provides a machinery for the adjudication by the National Tax Tribunal of disputes with respect to levy, assessment, collection and enforcement of direct taxes and also to provide for the adjudication by that Tribunal of disputes with respect to the determination of the rates of duties of customs and central excise on goods and the valuation of goods for the purposes of assessment of such duties as well as in matters relating to levy of tax on service. The Act is bound to raise constitutional issues of immense significance as to validity of conferral of the power and functions of the Tribunal, the exercise of such powers and functions, and the concept of judicial review under the Constitution.

 

The Edict Machinery of Tribunals in India:

 

The concept and the constitution and functioning of the Tribunals established under Administrative Tribunals Act. The exclusive jurisdiction hitherto have the benefit of by the Tribunals in service matter and distinguish the High Courts was put at stop partially by the Supreme Court of India in its landmark judgment in ‘L.Chandra Kumar Vs.Union of India and others. The Supreme Court diversified and re-distributed the jurisdiction of service matters etc in between these Tribunals for which purpose they have been established and High Courts as per the spirit of the Constitutional mandate enunciated by the framers of the Constitution, keeping in

view the ‘Basic Structure Theory’ and the provisions contained under Article 226,227, 32 and Articles 323 A and 323 B of the Constitution of India.

The salient feature of our Constitutional system that whenever new legislations or enactments are passed, either by Parliament or Legislative Assemblies, it is generally found that, they, being tested in courts of law, either on their validity as a whole or certain provisions of such acts if they are offending any provisions of Constitution, any public policy or established legal principles. Therefore, no exception was shown to the ‘Administrative Tribunals Act, 1985, enacted in terms of Article 323 –A of the Constitution of India. Consequent upon the establishment of service Tribunals in the country ‘under the Administrative Tribunals Act, 1985, a string of litigation had erupted before the High Courts of several States and also in Supreme Court, questioning the validity of certain provisions of the Act and also ultra vires of Articles 323-A and 323-B. Firstly, the ‘Apex Court’ by a Five Judge Constitution Bench, headed by the then Hon’ble Chief Justice, Justice P.N. Bhagwati, examined the constitutional validity of Article 323-A and its provisions in S.P. Sampath Kumar Vs. Union of India and others3 said Bench while upholding the validity of Article 323-A, held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal. Thereafter, a seven Judge Constitution Bench of the Supreme Court in ‘L. Chandra Kumar case’ while dealing with power of judicial review vested in High Courts and Supreme Court under Articles 226,227 and 32 respectively vis-a-vis Articles 323-A and 323-B not only deviated from the earlier discussion of the Supreme Court in ‘S.P. Sampath Kumar’s case’, but also held that, the Tribunals are supplementary in their role and the power of ‘Judicial Review’ vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the

‘Administrative Tribunals Act, 1985’ which excludes the jurisdiction of High Courts. The Supreme Court in the above case further held that: “The Tribunals created under Article 323-A and 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a ‘Division Bench’ of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunal will, nevertheless, continue to act like Courts of ‘first instance’ in respect of the areas of law for which they have been constituted. It will not, therefore, be open or litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.” In the same case, when an argument was advanced for the superintendence over the Tribunals by the concerned High Courts, the Supreme Court categorically held as follows: “To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them”. Therefore, in view of the law laid down by the Supreme Court in ‘Chandra Kumar’s case'(emphasis furnished supra) this Tribunal is now functioning as a ‘Court of first instance’ like any other Tribunal in the country established under Article 323-A of the Constitution of India. It is also to be noted that the ‘Judicial Review’ propounded by the Supreme court in ‘Chandra Kumar’s case cannot be treated/equated with an ‘Appeal’ in as much as the constitutional exercise by way of ‘Judicial Review’ displayed by the High Courts originated from the ‘Basic Structure Theory’ read with Articles 226 and 227 of the Constitution of India.

 

Appellate provisions under the direct and indirect tax enactments

 

Aforementioned to National Tax Tribunal, under the direct and indirect tax enactments, appeals on substantial questions of law from the decisions of tribunals such as the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lies to the High Court.

The Income Tax Appellate Tribunal Under Section 252 of the Income Tax Act, 1961 an appellate tribunal known as Income Tax Appellate Tribunal has been set up which consists of both judicial members as well as Accountant members. This tribunal hears appeals against orders passed by the Deputy Commissioner of Appeals or the Commissioner of Appeals, as specified in Section 253 of the Act on questions of law as well as questions of fact. Under the direct tax regime, Income Tax Appellate Tribunal is the final authority as regards determination of questions of fact. Under Section 260 A of the same Act, an appeal lies to the High Court, from every order passed by the Income Tax Appellate Tribunal if the High court is satisfied that the case involves a substantial question of law. However, there is also a provision for filing further appeals to the Supreme Court from any judgment of the High Court as specified under Section 261, only if the High Court certifies that the case is fit for appeal to the Supreme Court. In cases where High Court refuses to give such certificate, the aggrieved party has an option to invoke extraordinary jurisdiction of Supreme Court through special leave petition under Article 136 of the Constitution of India. Income Tax Appellate Tribunal, High Courts and the Supreme Court have been given similar powers of hearing appeals in respect of disputes concerning wealth tax under the Wealth Tax Act, 1957. The Customs, Excise and Service Tax Appellate Tribunal Under Section 129 of the Customs Act, 1962 the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been constituted which consists of Judicial as well as Technical Members. The Tribunal hears appeals against orders passed by the authorities mentioned in Section 129 A of the Customs Act. It also hears appeals against orders passed by the excise authorities as specified in Section 35 B of the Central Excise Act, 1944. Earlier, instead of appeal a reference used to lie regarding questions of law. An appeal lies to the High Court on a substantial question of law against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, under Section 130 of the Customs Act, as substituted by the Finance Bill, 2003. Similar provision has been incorporated in respect of appeals to High Courts under the Central Excise Act, 1944. The tribunal also has appellate jurisdiction in anti-dumping matters and the Special Bench headed by the President of the tribunal hears appeals against orders passed by the designated authority in the Ministry of Commerce. The appeals under the Service Tax are also heard by the tribunal. This tribunal is the appellate authority on matters relating to classification and valuation, with the appeals lying to the Supreme Court in these matters.

 

The Need for Establishment of National Tax Tribunal in India:

 

The necessity for uniformity and certainty in the administration of tax laws (both direct and indirect tax laws), appeals or references from the orders of the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lie with the High Courts, these Courts get flooded with such cases which need considerable time to dispose them. Due to the heavy workload of the High Courts, there is a huge backlog of tax related cases as a result of which huge revenue is blocked in such litigations. This is adversely affecting the national economy. Hence, urgent measures are required to be taken to speed up taxation matters pending

before the High Courts. It may also be noted that there are at present 21 High Courts. Many a time, decisions of the High Courts vary from each other which create uncertainty, delays and problems in the administration of tax matters. Conflict of decisions amongst various High Courts

on the same point of law have the effect of distorting uniformity and give rise to unnecessary appeals to the Supreme Court which results in further delay.

National Tax Tribunal will help in clearing the backlog and mitigating the burden that lie at the doors of High Courts. The constitution of the National Tax Tribunal would relieve the taxpayers from the burden of pursuing the tax disputes for a long period and substantially reduce the workload of different High Courts which could not concentrate and devote as much focus which the complex tax laws presently demand.

 

Judicial Sovereignty and the National Tax Tribunal

 

In the Landmark Judgments of the Court in L Chandra Kumar and Sampath Kumar that even if the Tribunals have to play a supplemental role, given the powers that they enjoy, including the power to strike down legislation as ultra vires the constitution, the NTT will have to enjoy Judicial Sovereignty as understood in the Indian constitutional context. Judicial Sovereignty in India always has been a very controversial subject. The judicial pronouncements and the scholastic opinion in this regard, point out different stages at which the independence of the judiciary will have to be assessed. Judicial Sovereignty will include the collective independence of the judiciary from the other branches of the State and also the independence of the individual judges. The first aspect relates to appointment, removal etc whereas, the second aspect relates to matters concerned with security of tenure, salaries and allowance etc. Let us take up these issues in relation to the National Tax Tribunal. The Members and the Chairperson of the National Tax Tribunal are appointed by the Central Government in accordance with the recommendation of a selection committee consisting of the Chief Justice of India or his nominee. Though the other two members in the committee are not from the judiciary, it is submitted that this is sufficient safeguard against executive fiat. In terms of the qualification also sufficient safeguards seem to have been provided. The legislation provides that all members including the Chairperson have sufficient legal qualifications and adequate experience to handle complex matters relating to tax as also maters relating to the vires or otherwise of legislations and administrative actions. More importantly, the method of removal of the member and the Chairperson also has been made sufficiently elaborate to minimize executive interference. Section 11 provides that removal and suspension can take place only in consultation with the Chief Justice and on completion of a formal enquiry. The Chairperson also has been given enough discretion to constitute the benches of the National Tax Tribunal. In terms of salaries and other benefits, the members and the Chairperson have been accorded the same status as that of High Court judges. Also of significance is the fact that these Tribunals have been vested with contempt powers under section 12 of the NTTA, 2005 in addition to certain powers of the Civil Court granted to it in section 16. The legislation also protects actions taken in good faith in the course of discharge of duties by any member, Chairperson or other employee, which also helps in maintaining judicial independence. In all it is submitted that the provisions of the enactment do indeed secure judicial sovereignty.

 

The Differentiation of National Tax Tribunal and High Courts in India

 

There is a provision in the Act that may cause adversity to tax-payers. The Act stipulates that an appeal before the NTT can be preferred only if the appellant deposits at least 25 per cent of the tax or duty payable on the basis of the order appealed against. The NTT is also given the discretion to condone this requirement. There is no such stipulation in cases that go before the

high court. Yet another distinction is that no interim order can be passed by the NTT without hearing the other party. No Tribunal constituted under 323A or 323B of the Constitution can ever

oust the jurisdiction of the high court under Articles 226/227 of the Constitution. The writ jurisdiction of the high court will continue, despite the provision that appeals from the NTT will go to the Supreme Court. The NTT will, therefore, be one more forum working along with the

High court.

The Government makes it appear that there is huge pendency before the various high courts involving fiscal disputes. The truth seems to be that the overall pendency does not exceed 30,000 cases, the maximum being around 10,000 in Mumbai and an equal number in Delhi. Probably, constitution of permanent tax benches in these two High Courts will solve the problem for revenue. The NTT will not be governed by the Civil Procedure Code, though rules of natural justice will apply.

 

Conclusion

 

There cannot be fault with the intention of the Government, to reduce the backlog of cases, in proposing the National Tax Tribunal, but the way in which the NTT has been setup raises a lot of concern. Apart from creating multiple and simultaneous structure for the resolution of tax disputes, which will obviously lead to a lot of turmoil, the NTT also faces challenges in the form of allowing Chartered Accounts to appear before it. The enactment seems to fair well in terms of securing the independence of the judiciary but fails the Constitution on account of abridging the writ jurisdiction of the High Courts in relation to the transfer of cases. This is a grave blemish that will have to be rectified. Efficiency arguments for and against the Tribunal can be analyzed or answered only if a systematic and scientific study happens in that regard. The Law Commission must come out with official statistics in this regard. More importantly, we will have to decide whether Tribunals are the best way to deliver justice in relation to tax matters or whether mere creation of exclusive tax benches in the High courts would solve the problem. Vacancies in the High Courts are not filled regularly nor is there a concerted effort at the national level to streamline procedures relating to dispose off pending disputes. The Government has not been able to come up with any realistic presentation statistics of existing tribunals nor has it explained tribunalize the tax administration for the justice further. At least in future, efforts like this, to create an alternative forum and working substitute for the Court must be backed with methodical study, more debates and comprehensive planning, in order to guarantee that they do not end up as unproductive outlay at the hands of the exchequer.

 

Bibliography:

1) Durga Das Basu- Shorter Constitution of India- Thirteenth Edition 2001 Wadhwa Nagpur.

2) H.M.Seervai-Constitutional Law of India: A Critical Commentary- Universal Law Publishers

3) Walter W. Brudno- Taxation in India-Harvard Law School International Program in Taxation.

4) The National Tax Tribunal Act, 2005- Bharatgazette Government of India.

5) The National Tax Tribunal (Amendment) Act, 2007- Manupatra Bare Act.

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Posted on November 20, 2010 by , Reply