Between life and death, it is the latter that hogs more news. The qualities of even a person unknown are epitomized in a hyperbole more after a person departs than while living. The cause of death itself is of no value except when the process adopted for snuffing out life is so crafty that the perpetrator of the heinous crime leaves no trail. The name of Aarushi, a 15 year old girl, evokes a great deal of sympathy since the prime suspect for her murder is her own father, a dentist and at the same time bewilderment about how there has emerged no tangible clue to nail down by a plausible story of who could be the real culprit. After the CBI has taken over, it has assumed importance for another reason. Like never before, are questions asked whether narco-analysis and brain mapping employed against prime suspects and witnesses legitimate tools of getting at truth in the investigative process. Should a scientific process be immune from critical attack only because it is scientific? Of what value is science if it demeans the value of human autonomy and rides roughshod over an individual preference not to be put through these tests? Is torture objectionable only if it is physical and obtains a different meaning if the exercise against resistance operates only at a mental level?
The Constitution guarantees as fundamental right that ‘no person accused of any offence shall be compelled to be a witness against himself’. A precept recognized as a guarantee against self incrimination has been consistently given an artificial construct by courts at various stages. Perhaps, the most thorough examination on this subject belongs to Bombay and Gujarat High Courts, who while dealing with objections against narco analysis, brain mapping and lie detector tests have held that courts will not interfere with investigative process of police; statements recorded as such cannot be used as evidence, which is what guaranteed under the Constitution and information secured in a state of stupor induced through drugs is akin to statement leading to discovery admissible under section 27 of the Evidence Act; these tests have scientific basis and aimed at securing the truth and hence cannot be objected to; the question of consent is not required to be considered at the stage of investigation process and it would be relevant only at the trial. Each one of the lines of reasoning is open to serious contest, if you know how these tests are performed on individuals.
The Bombay decision in Ramachandra Reddy (2004) explains the technical details of these tests and why it finds nothing objectionable about the tests. It further explicates that brain mapping is a process of data collection that gives inferential knowledge whether a suspect has or has not information about an occurrence which he wants to conceal. Narco analysis does not involve any physical pain by the injection of Pentothal. Lie detectors do no more than reading blood pressure, intestinal movement, heart rate, perspiration, etc and deviations read from the graph from the baseline are taken as straying from truth. The court would say that there is no direct invasion of the body of the person interrogated and hence not objectionable. We have strange logic permeating the entire discussion of what amounts to testimonial compulsion.
Why do you think, we tend to wink at these questionable practices of subjecting a person to tests irrespective of consent, a component so fundamental to concerns for human rights? How are they different from military practices, where from the Nazi atrocities to Iraq war crimes, ‘ends justify the means’ theory is always proffered as providing the complete answer. What is the opposition to death penalty about? Is it infliction of pain to cause the death that is the central theme to objection or the annihilation of life by State agency as a measure of retribution itself that is challenged? If the latter is accepted as the tenable premise, can the issue whether death results from hanging or electric chair or pain-free injection of Pentothal in lethal dose be relevant? Same way, if medical intervention without consent is objectionable at a very fundamental level that it breaches patient autonomy, carrying out medical tests that may not be physically painful cannot be left without challenge only because it may lead to detection of crime. Involving medical science and giving the doctors the edge to get at the truth from the accused himself subverts every idea of justice.
Do not forget the convoluted understanding scientific processes ushered with the help of doctors by Hitler’s Nazi regime and what it resulted. A history of German politics in the 1920’s, 30’s, and 40’s set the stage for the government-sponsored eugenics (so-called “racial hygiene”) movement. Early racial hygiene proponents had little association with anti-Semitism, but this changed when racial hygiene extremists merged with National Socialism. Biology became prominent in Nazi ideals, with Nazi leaders referring to National Socialism as “applied biology,” reflecting its social Darwinist racial hygiene origins. This “scientific” basis attracted many physicians to Nazism. The National Socialist Physicians’ League was formed in 1929 “to coordinate Nazi medical policy, and purify the German medical community of Jewish Bolshevism.”’ By 1942 about half of all physicians in Germany (more than 38,000) were members of the Nazi party. Hitler was even referred to as the “great doctor of the German people”. Nazi racial hygiene goals were carried out through medical programmes. All this is not to compare Nazi practices to these tests but only to bring home the point of utter degradation of administering drugs without consent.
Maybe, the Supreme Court verdict in its reserved verdict will address all the issues and give a comprehensive decision one way or the other all too soon. The debate shall not still rest there, for as the saying goes, the judgment will be final not because it is infallible but infallible because it is final. And lawyers have not yet reconciled that any decision could be final!