Sleep deprivation is the oldest mind-bending method used in interrogation and extraction of confessions. However, science has placed in the hands of inquisitors new tools — which even they don’t understand well. Some of them are compulsory brain mapping, narco-analysis, truth drugs, lie detectors and voice recognition methods.
All these relate to those intimate faculties like mind and brain, which are yet to be explored well. The latest news from the field of neurogastroenterology is that there is a “second brain” in your intestine. This back-up intelligence influences your mood, the decisions you make and gives you “gut instincts”, or puts butterflies in the stomach. Policemen are yet to explore this new frontier located in the belly, a familiar spot during their interrogations.
Since the effect of this new range of investigation modes is not fully known, judges have been slow in accepting them. Two years ago, the Supreme Court ruled 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.” Information gained through such tests is already inadmissible in courts, but the judgment in Smt Selvi vs State of Karnataka made it clear that the police cannot use the tests or investigate any leads unless suspects volunteer.
“Compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms,” the court asserted.
Two weeks ago, the Supreme Court was faced with a related question regarding voice-recognition techniques. In this case, voice samples of two persons allegedly engaged in extortion had to be identified to determine who is speaking and what was being said. The magistrate allowed the investigators to take their voice samples. One of them moved the high court invoking his fundamental right not to be compelled to be witness against himself (Article 20 of the Constitution). The Allahabad High Court dismissed his writ petition. On appeal, two judges of the Supreme Court who dealt with the case could not agree in their views, and now the question will go before a larger bench (Ritesh Sinha vs State of Uttar Pradesh).
The constitutional provision is general, though it has been interpreted in several leading judgments. There is no law that specifically deals with the new scientific techniques of investigation, though many of them invade privacy and the body. The Prisoners Act, the Identification of Prisoners Act, the Evidence Act and the Criminal Procedure Code have not caught up with either the craftiness of offenders nor scientific progress. In the absence of specific provisions, the rights of accused persons are prone to subjective view of judges.
In the present case, one judge ruled that summoning the suspect for recording his voice samples was right. Though the power of the magistrate cannot be found in any law, the existing provisions should be given a “purposive interpretation”, according to her.
“Judicial note can be taken of the fact that there is a great deal of technological advance in means of communication,” her judgment said. “Criminals are using new methodology in committing crimes. Use of landlines, mobile phones and voice-over internet protocol in the commission of crimes like kidnapping for ransom, extortion, blackmail and for terrorist activities is rampant.” Therefore, instead of giving a narrow interpretation to the laws, a liberal interpretation should be given to strengthen the hands of investigating agencies, she wrote.
On the other hand, the fellow-judge had reservations on “inventing” law through interpretative device when there is no express or evidently applicable provision in this field. He set aside the order of the magistrate in this case.
He takes the example of the word “measurements” defined in the Identification of Prisoners Act. In the Telgi case (he was the fake stamp kingpin), the Bombay High Court extended its meaning to include voice sample. The logic is that with the development of science, voice samples can be measured and analysed on the basis of time, frequency and intensity of speech-sound waves. Disagreeing with this view, the judge stated that if the same parameters were applied, a policeman could demand lipid profile, kidney function test or a full medical profile of the suspect without even going to the magistrate. The courts could not stretch its interpretation to such an extent, since it would violate the constitutional guarantees.
Thus, the question still hangs in the balance. Only high-profile offenders, like the proliferating tribe of politicians and financiers, can raise such complex questions and stall investigations. Small-time delinquents have to undergo the time-honoured methods used by police constables and portrayed in U/A movies. For them, the 14th century Sufi saying should read as, “Supreme Court Dur Ast” (the Supreme Court is far away).
