Doctor as sleuth

The recent decision of the Supreme Court to impose a near-blanket ban on three techniques of criminal investigation — narco-analysis, polygraph and brain-mapping — is a setback to the investigative agencies.

Among the more disturbing blind spots in the 251-page judgment in Smt Selvi v State of Karnataka is the court’s opinion on the propriety and legality of “medical examinations” on suspects. The opinion hinges on its interpretation of two major statutes: Code of Criminal Procedure and, to a lesser extent, the Constitution of India.

Sections 53, 53-A and 54 of the code allow a registered medical practitioner, in response to a direction from courts or requests by police officers or by the accused himself, to examine the accused for extracting evidence. Sections 53 and 53-A even permit the use of reasonable force for this purpose.

More pertinently, the 2005 amendment to the 1973 code clarifies the term “examination” to include “the use of modern and scientific techniques, including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.” (emphasis supplied)

Whereas the sections themselves make no bones about permitting the medical examination per se, the clarification contained in the amendment goes to emphasise two related points. One, that the procedures to be deployed for extracting evidence need not be restricted to the expressly mentioned DNA test. And two, the discretion for their deployment rests mainly with the doctor conducting those tests.

The amendment reflects an unusually bold approach and an admittedly rare instance of legislative wisdom in tackling crime. It addresses the urgency to incorporate advancements in modern science into the tool-box of criminal investigation. 

The amendment, mindful of the ever-expanding frontiers of forensic medicine, recognises the medical community’s special competence in determining the choice of tests with due regard to the health, physical and mental capacity of the accused to endure the procedure. It is also a test of the doctor’s skill in evaluating the efficacy of the chosen test.

Sadly, the Supreme Court does not share that confidence in our doctors’ professionalism or in their grasp of medical ethics. Worse, it has usurped the doctor’s statutory right to steer the course of forensic inquiry. Relying implicitly on an age-old juristic principle that a penal statute shall be construed narrowly in favour of the accused in the interest of a fair trial, the Selvi judgment has opted to confine the meaning of the phrase “and such other tests” to include only those procedures which involve the extraction and examination of physical — ie, anatomical — evidence such as hair, blood, sputum and semen. In effect, the three banned tests which provide access to the personal knowledge of the accused stand excluded from the array of court-sanctioned methods to procure evidence.

Recent juristic thinking, moulded no doubt by the advent and escalation of terrorist activity worldwide and by the consequent need to balance the rights of the accused with compelling public interest, points to a less rigorous and blinkered adherence to the strict and narrow interpretation of such statutes.

In recent judgments, the Supreme Court itself eschewed the old line of thinking, and relaxed the rule to deal with the mischief. Its 2005 judgment in the Parliament attack case involving Afzal Guru ruled that a formal declaration of war may not always be a pre-requisite for invoking section 121 of the IPC (Punishment for Waging War) in the event of a terror attack by foreign militants.

All this is not to suggest that the banned tests are infallible. Both polygraph and brain-mapping tests are prone to false results, and a person undergoing narco-analysis is necessarily vulnerable to suggestions in the hypnotic state.

Moreover, it has been rightly argued that because a test is scientifically valid and reliable, its use does not — by that sole measure — make it ethical or humane. In unskilled or motivated hands, narco-analysis, for instance, could easily end up becoming pharmacological torture.

But that is precisely where thecourts need to step in. It is the job of a judge to police the police, in a manner of speaking, and to maintain a church-state separation between investigation and incrimination, thus safeguarding the accused’s constitutional right enshrined in article 20(3) against being forced to make self-incriminatory statements.

By its across-the-board rejection of the compulsory administration of the tests, however, the Supreme Court has not only abrogated its responsibility of monitoring the protection afforded by an important provision of the Constitution, it has also forfeited the invaluable services of a potential ally in our quest for justice.