CHAPTER 18

TOOLS OF INTERROGATION
The Polygraph (Lie detector), the P300 (Brain Mapping) and the Narco analysis (Truth Serum) arc
the main three scientific tools of interrogation that are used for extracting confessions from the suspects
of criminal and terrorist activities. These psychoanalytical tests are also used to interpret the behaviour
of a suspected criminal or terrorist and corroborate the observations of the investigating officers. After
a long line of decisions by various High Courts leaning in favour of investigating agencies and holding
that statements made by persons in a state of stupor or the data collected by brain mapping could be
admissible, the Supreme Court has pulled the curtains down in Selvi v. State of Karnataka, holding
that all the three types of tests — narco-analysis, polygraph and Brain Electrical Activation Profile
(BEAP) - are constitutionally impermissible as constituting a violation against the fundamental right
against self-incrimination that is protected against through Art 20(3) of the Constitution of India.
Functional magnetic resonance imaging (fMRI) is another technology that is being used in the
USA as a ‘lie detector’ by intelligence agencies, despite concerns over its unreliability and the
possibility of abuse.1 2
Polygraph (Lie Detector).—In polygraph tests, it is presumed that when the suspect is asked a
series of questions, fake answers will produce distinctive physiological measurements. The polygraph
machine measures physiological changes caused to the blood pressure, pulse, respiration, breathing
rhythms, body temperature and skin conductivity during questioning. Polygraph examination is
mentioned as a psychophysiological detection of deception (PDD) examination.
In some countries, polygraph is used as an interrogation tool on suspects of criminal activities and
on new recruits prior to employment for posts involving confidentiality. However, the use and
effectiveness of the polygraph is clouded in numerous disputes.
Testing procedure.—Two types of instrumentation are available for testing - analog and digital
(computerised).
Deceptive behaviour is supposed to trigger certain physiological changes that can be detected by a
polygraph and a trained examiner, who is sometimes called a forensic psychophysiologist (FP). This
examiner looks for the amount of fluctuation in certain physiological activities. The following is the list
of physiological activities that are monitored by the polygraph and how they are monitored:
• Respiratory rate.—Two pneumographs, rubber tubes filled with air, are put around the test
subject’s chest and abdomen. When the chest or abdominal muscles expand, the air inside
the tubes is displaced. In an analog polygraph, the displaced air acts on a bellows, an
accordion-like device that contracts when the tubes expand. This bellows is attached to a
mechanical arm, which is connected to an ink-filled pen that makes marks on the scrolling
paper when the subject takes a breath. A digital polygraph also uses the pneumographs, but
employs transducers to convert the energy of the displaced air into electronic signals.

1 Selvi v. State of Karnataka, (2010) 7 SCC 263. - t,ra;n

2 This technology has been routinely used by neurosurgeons since the 1990s to scan or tumours and to diagnose and
treat various disorders of the central nervous system.

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I 456 Chapter 18—Tools of Interrogation
• Blood pressure/hcart rate.—A blood-pressure cuff is placed around the subjects upper
arm. Tubing runs from the cuff to the polygraph. As blood ?n.?ndSd iUg !ie arm lt ’?lakes
SOUnd; the chan es in rcssurc the air 1 n h c tub es whlch arc
S ^ caused by the mnvi . , . .^ 1 . > connected to a
bellows, which
mo es the pen. In digital polygraphs, these signals arc converted into electrical signals by
transducers.
Gahanic skin resistance (GSR). This is also called electro-dermal activity and is basically
a measure of the sweat on the fingertips. The finger tips are one or the most porous areas
on the body and a good place to look for sweat, is presumed that a person sweats more
when he is uncer stress. Fingerplates, called galvanometers, are attached to two of the
subject s fingers. These plates measure the skin s ability to conduct electricity. When the
skin is wet (as with sweat), it conducts electricity much more easily than when it is dry.
Some polygraphs also record arm and leg movements. As the examiner asks questions, signals
from the sensors connected to the body are recorded on a single strip of moving paper.
Reliability.—The reliability of the results of a polygraph examination is mired in controversies. A
polygraph examiner can misinterpret a person’s reaction to a particular ■ question. The human facet of
the polygraph examination and the subjective nature of the test are the two reasons that render its results
disallowed in a court of law. The following are the two ways by which an answer can be misinterpreted:
• False positive.—The response of a truthful person is determined to deceptive.
• False negative.—The response of a deceptive person is determined to truthful. be
After reviewing the data on the validity and accuracy of polygraphy testing, American be
the
Medical Association (AMA) Council on Scientific Affairs states that the
use of the control question technique in criminal cases is time honoured and has seen much scientific
study. It is established that classification of guilty can be made with 75 per cent to 97 per cent accuracy,
but the rate of false-positives is often sufficiently high to preclude use of this test as the sole arbiter of
guilt or innocence. This does not preclude using the polygraph test in criminal investigations as evidence
or as another source of information to guide the investigation with full appreciation of the limitations in
its use. Application of the polygraph in personnel screening, although gaining in popularity, has not
been adequately validated. The few limited studies that have been performed suggest no greater accuracy
for the types of testing done for this purpose than for the control question polygraph testing used in
criminal cases The ePff?ct of polygraph testing.to deter "" S^rMuTmo^^ should be generally accepted
for this purpose.
♦ Cknripc Wnntd a nsvchology professor, polygraph interrogations gave a According
to Charles Honts P people3 4 In 2001, William G. lacono concluded high rate of false positives on inn
pP useful as an investigative aid and
thft although the CQT (Control Queston*credible test. CQT tool to induce confessions, it does P ti
indicating (a) that it is biased against theory is based on naive b e ^ beaten simply by artificially
augmenting
responses ^controlquestions. Although it is not possible to adequately assess the error

3.
4.

JAMA. 1986; 256(9): 1172-1 175 (1994). Mental and physical countermeasures reduce
Honts, C. R, Raskin, D C & ofAppiiedPsychology. 79. 252-259.
the accuracy of polygraph tests. Journal oj Appue

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 Admissibility of polygraphs results in court 457
rate of the CQT, both of these conclusions arc supported by published research findings in the best social
science journals.5 Although defence attorneys often attempt to have the results of friendly CQTs
admitted as evidence in court, there is no evidence supporting their validity and ample reason to doubt
it. Members of scientific organisations who have the requisite background to evaluate the CQT are
overwhelmingly sceptical of the claims made by polygraph proponents.6
Admissibility of polygraphs results in court.—The National Human Rights Commission on 12
November 1999 adopted a set of guidelines relating to administration of the Polygraph Test or the Lie
Detector Test. The Commission had been receiving a number of complaints pertaining to the conduct of
this test said to be administered under coercion and without informed consent. The test is conducted
after a certain drug is administered to the accused. As the existing police practice in invoking Lie
Detector Test is not regulated by any Law or subjected to any guidelines, the Commission felt that it
could tend to become an instrument to compel the accused to be a witness against himself, violating the
constitutional immunity from testimonial compulsion. The Commission has noted that immunity from
invasiveness (as an aspect of Article 21 of the Indian Constitution) and from self-incrimination (Article
20(3) of the Indian Constitution) must be read together. The general executive power cannot intrude on
either constitutional rights and liberty or, for that matter, any nghts of a person. In absence of a specific
‘law’, any intrusion into fundamental rights must be struck down as constitutionally invidious. It went
on to observe that ‘The Lie Detector Test is much too invasive to admit of the argument that the authority
for this test comes from the general power to interrogate and answer questions or make statements.
However in India, we must proceed on the assumption of constitutional invasiveness and evidentiary
impermissiveness to take the view that such holding of tests is a prerogative of the individual not an
empowerment of the police. In as much as this invasive test is not authonsed by law, it must perforce be
regarded as illegal and unconstitutional unless it is voluntarily undertaken under non-coercive
circumstances. If the police action of conducting a Lie Detector Test is not authorised by law and
impermissible, the only basis on which it could be justified is, if it is volunteered’.
‘However, there is distinction between “volunteering” and “being asked to volunteer”.’ This
distinction is (of) some significance in the light of statutory and constitutional protections available to
any person. There is a vast difference between a person saying, ‘I wish to take a Lie Detector Test
because I clear my name’; and the person told by the police, ‘If you want to clear your name, take a Lie
Detector Test’. A still worse situation would be by the police say ‘Take a Lie Detector Test, and we will
let you go’. In the first situation the person voluntarily wants to take the test. It will still have to be
examined whether such volunteering was under coercive circumstances or not. In the second and third
situations the police implicitly/explicitly link up the taking of the test to allowing the accused to go free.
The extent and nature of ‘self-incrimination’ is wide enough to cover the kinds of statements that
were sought to be induced. The test retains the requirement of personal volition and states that self-
incrimination must mean conveying infonnation based upon the personal knowledge of the person
giving infonnation. The information, sought to be elicited in a Lie Detector Test, is always infonnation
in the personal knowledge of the accused.
The Commission, after bestowing its careful consideration of this matter of great importance laid
down, the following guidelines relating to the administration of Lie Detector Test:

5.

6.

.... 7S7 759- KJeinmuntz B„ & Szucko, J. J. (1984). A field study of the fallibility of Ib>d.. 252-259 Weinmunz, .
308 449—450; Patrick, C. J., & lacono, W. G. (1991). Validity of' t£aPcontiol question' polygraph test: The problem
of sampling bias. Journal of Applied Psychology, 76,229-238. Detection”: Procedures Without Scientific
Basis,’ Journal
^ofFo^cPsychology Practice. Vol. 1 (2001), No. l.pp. 75-86.

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I 458 Chapter 18—Tools of Interrogation
No^ Lie Detector Test should be administered without the consent of the accused. Option
should be given to the accused as to whether he wishes to avail the test.
If the accused volunteers for the tests, he should be given access to a lawyer, io police and
the lawyer should explain the physical, emotional and legal implication of such a test to
him.
The consent should be recorded before a Judicial Magistrate.
During the hearing before the Magistrate, the accused should be duly represented by a
lawyer.
At the hearing the person should also be told in clear terms that the statement mat is made
shall not be a ‘confessional’ statement to the Magistrate but will nave the status of a
statement made to the police.
The Magistrate shall consider all factors relating to the detention including the length of
detention and the nature of interrogation.
• The actual recording of the Lie Detector Test shall be done in an independent agency (such
as a hospital) and conducted in the presence of a lawyer.
• A full medical and factual narration of the manner of information received must be taken
on record.
These guidelines of the Commission were circulated to the Chief Secretaries and DGPs of States
as well as Administrators and IGPs of UTs by a letter dated 11 th January 2000.
The guidelines were quoted by the Supreme Court in Selvi (supra) to hold that lie detectors are
again tools of self incrimination and ruled the practice as impermissible. However, in the course of the
judgment, the Supreme Court has said that the medical community will know whether narcoanalysis is
scientific, ethical and proper as a test to detect the truth. The truth is that the medical community has
always challenged the scientific basis for these tests.7
In Daubert v. Merrell Dow Pharmaceuticals? the old standard evolved in Frye v. United States9 on
using scientific evidence was rescinded and it was held that all forensic evidence, including polygraph,
had to meet the new Daubert standard in which the underlying reasoning or methodology is scientifically
valid and could be properly applied to the facts at issue. In the United States, police can use polygraph
tests as part of their investigations but no defendant or witness can be forced to undergo the test.
In the Federal legal system, polygraph test results are inadmissible as substantive evidence 10 The
preponderance of authority in the United States is against the admission of polygraph evidence with a
variety of grounds having been asserted for refusing its admissibility including.--
1 It intrudes on the ultimate issue which the Court must determine.
2 It does not fulfil the criteria of the Supreme Court of the United States test in ' Frye Case,11
with regard to admitting scientific evidence.
3. It is hearsay evidence.

See Dr. Jagdeesh Narayana Reddy & George Paul, ‘Controversies in Forensic Tests,
7.
Investigations and expertise,' Recent advances of Forensic Medicine,-2 Jaypee Publishers,
2017, chapter 25.
8. Daubert v. Merrell Dow Pharmaceuticals, 92-102, 509 U.S. 579 (1993).
9. Frye v. United States, 54 App.D.C. 46 : 293 F. 1013 (1923). The Court held that evidence
obtainable from the use of scientific instruments or techniques is admissible if the instrument
or technique has a reasonable measure of precision and is accepted in its scientific field or
profession.
11.
10. Frye v. United
United States v.States,
Hunter,54 672F.2d815
App.D.C. 46[TENTH
:293 F. 1013
CIR. (1923).
1982].

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 Admissibility of polygraphs results in court 459
4. It relates to the credit of witnesses not suffering psychiatric illnesses and is therefore not
a proper matter for expert evidence,
5. 1 he elicitation of the responses is unfair because of the trickery and deceit necessary to
obtain responses,
6. The testimony is self-serving for the defendant.7 8
In 1998, in United States v. Scheffer,** the U.S. Supreme Court held that there was simply no
consensus that polygraph evidence was reliable and unlike other expert witnesses who testified about
factual matters outside the jurors’ knowledge, such as the analysis of fingerprints, ballistics, or DNA
found at a crime scene, a polygraph expert could supply the jury only with another opinion.9 10
In United States v. Scheffer f the U.S. Supreme Court left it up to individual jurisdictions whether
polygraph results could be admitted as evidence in court cases. While some States have allowed test
results in criminal trials, States such as California have prohibited the admission of such evidence
unless all parties consent to its admission.11 12
Other States such as Illinois completely bar the use of such testing in criminal trials. This
prohibition extends to requesting, requiring or suggesting that a defendant submit to such a test. In
the States of Massachusetts, Maryland, New Jersey, Delaware and Iowa, it is illegal for any employer
to order a polygraph either as conditions to gain employment, or if an employee has been suspected
of wrongdoing. The State of New Mexico admits polygraph testing in front of juries under certain
circumstances. In many other states, polygraph examiners are permitted to testify in front of judges in
various types of hearings like Motion to Revoke Probation and Motion to Adjudicate Guilt. As of
2009, 19 States admit results of PV examinations under stipulation by the parties. The State of New
Mexico permits the introduction of polygraph results into evidence without a stipulation, under strict
evidentiary rules.13 In the U.S., the use of polygraph in Court testimony remains controversial,
although it is used extensively in post-conviction supervision, particularly of sex offenders.
In Canada, the Supreme Court in Phillion v. R,14 15 16 held that the evidence of the results of a lie
detector test is inadmissible. In the 1987 decision of R. v. Beland f the Supreme Court of Canada rejected
the use of polygraph results as evidence in Court. A Scottish Court followed this approach noting that
the use of such techniques distorts the adversarial trial process. In the UK, the Privy Council and the
House of Lords never had the opportunity to consider the question of the admissibility of polygraph test
results in a

12.
13.
14. Page LBC Update Freckelton and Selby 1-1890.
15. United States v. Scheffer, No. 96-1133. Decided on 31 st March, 1998 : 44 M. J. 442.
16. Available at http://en.wikipedia.org/wiki/Polygraph cite_note?usr23^ Last accessed on. April 2018.
17. No. 96-1133. Decided March 31,1998 44 M. J. 442. O | J •£* jj- 0
18. Wests Ann.Evidence Code 351.1. Phntnctsri Zrt)
Illinios Rev.Stats., ch.38,155-11. FfhJlOSial bd. Q Q
Available at http://www.mattepolYgraph.com/legal adniissibility.html last accessed on April 2018.
The States which do use lie detector tests are: Alabama, Arizona, Arkansas, California, Delaware, Georgia Idaho,
Indiana, Iowa, Kansas, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Utah, Washington, Wyoming. In
New York, Texas, Illinois, Pennsylvania, and the District ot Columbia, lie detector tests are inadmissible even if
both parties agree. In Massechussettes, ey can be used as ‘supporting probably cause’, http:// defensewiki,
ibj.org/index.p p *e_ e ec Eighteen of the 50 states allow polygraph evidence in criminal trials, and one state, even
allows polygraph testing during a trial in front of a jary- Le«.scd on hrtp.7Zwww.ehow.com/info_8260513_statcs-
admit-polygraph-evidence.html. Last ac
19. April 2018.
20. Phillion v. R, 1978 1SCR 18.
21. R. v. 5eW, (1987) 2 SCR 398.
Meehan (Petitioner), 1970 JC 11.

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I 460 Chapter 18—Tools of Interrogation
ScoS^f^
lawsuit an involved party can order a psychologist to write 3^0^^ based “on polygraph results to
substantiate the credibility of its claims. The High Court of Israel °n xC°b S,dov",lf ™ied tha‘ the
polygraph has not been recognised as a reliable device, polygraph results are inadmissible as
evidence in a civil trial.
however
JL °
HiJh 2hetadimiS?ib.ility ,of PolygraPh tests has not yet been considered by the C M F o ’
U haS
> been raised ine the CW trial courts. In Xaytnotul
refu tT from^nolvX nn^ S°Uth WakS DJStrict Court aPP,ied and he]d that fol J .• ? polygraph examinations
undertaken by an accused (with a view to substantiating his demal of the substance of the charge
against him) were inadmissible evidence in the course of a criminal trial.
Statutory Restrictions on Polygraphs.—In New South Wales, Australia, the Lie Detectors Act,
1983, provides specific statutory provisions that prohibit the admission of le detector evidence in
criminal trials. This Act prohibits requesting or requiring another person to undergo an examination
based on the use of instruments or apparatus which monitor the physical reactions of the body or
elements of stress, tone or variation or vibration in the voice for any prohibited purpose. 24 The
prohibited purposes include the following:
1. Matters relating to employment including application for or offer employment,
honesty and other means related to character terms employment, promotion and other
employment related benefits, transfer employment, training in or continuation of
employment.
2. Consideration of the acceptance of risk under a proposal for a contract policy of
insurance. of
3. Consideration of a claim under an insurance policy or payment of
of
22. Civil Appeal 551/89. Crjm R4g
23. Act, 1983. or
24 Section 5(2) oi tne M _
Section 6 of the Lie Detectors Act, 1983. of
compensation for loss or damage under an insurance policy or an application for
any form of financial accommodation.
4. Establishing whether or not a personas guilty oi an act or admission that is
punishable by a fine or imprisonment.
In the USA, the Employee Polygraph Protection Act of 1988 (EPPA) provides protection to
private sector employees. It only affects commercial businesses. It does no apply to schools,
prisons, other public agencies or some businesses under contract with the federal government. .
. , .
rovide ha a
The EPPA P ^ ^o ^po^T^ JreqEest an

her?elSa|bUEmp)oyeesOtina tte private sector are not subjected to polygraph exams Itke employees
ofthe federal government^ a perSor. a lie he uses his

Narco Analysis Test (Tru , subject’s imagination is neutralised by making

imagination. In a Narco Analysis Test the^subj^ct s^ g his
him semi-conscious. In this stale’ , P aiready aware of. Further, it is believed that his answers
would be restrictedto facJ^.conscious person will not be able to manipulate answers are spontaneous
since a semi co answers.

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 Judicial Admissibility 461
The team that conducts narco analysis consists of an anaesthetist, a physician and a
clinical/forensic psychologist. The physician certifies the fitness of the person before and after the
narco analysis, the anaesthetist modulates the depth of anaesthesia required depending upon the
quantum of information to be obtained and monitors the various stages of anaesthesia. Only the
clinical or forensic psychologist interacts with the individual who is in a ‘trance’ and gives reports
along with videotapes to the courts on behalf of the team.
The anaesthetist injects three grams of Sodium Pentothal or Sodium Amytal dissolved in 3000
ml of distilled water. The dose is dependent on the sex, age, health and physical condition of the
subject. A wrong dose can result in a person going into a coma or death. The rate of administration
is controlled to drive the accused slowly into a hypnotic trance. The drug depresses the central
nervous system, lowers blood pressure and slows the heart rate, putting the subject into a hypnotic
trance, resulting in a lack of inhibition. The subject is then interrogated by the investigating agencies
in the presence of the 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. This procedure is conducted in government hospitals after a court order is passed,
instructing the doctors or hospital authorities to conduct the test. For the procedure to be conducted,
consent of the subject is also required.17
Judicial Admissibility.—The Supreme Court has said in Selvi,18 The involvement of doctors in
the course of investigation in criminal cases has long been recognised as an exception to the
physician-patient privilege. In the Indian context, the statutory provisions for directing a medical
examination are an example of the same. Fields such as forensic toxicology have become important
in criminal justice systems all over the world and doctors are frequently called on to examine bodily
substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as
well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses
of medical expertise is the fact that testimonial acts such as the results of a psychiatric examination
cannot be used as evidence without the subject’s informed consent.’ The various High Courts’
decisions19 permitting the administration of polygraph, narco analysis and P 300 tests on suspects of
criminal offences will have to be read down or taken as overruled in line with the decision in Selvi
(supra).

26.
27.
28.

In Sampatrao R. Arvelli v. State of Maharashtra, 2009 Cr LJ 457, the broader question as to whether in absence
of consent/willingness of the accused/witness, who is subjected to the narco analysis, brain mapping or similar
tests, the same should be undertaken by the order of Court. It was held that the larger interest should outweigh the
individual liberties and fundamental rights and balance can be struck by considering the perspective of reasonable
restrictions. In absence of a direct prohibitory precedent or order, no reason as to why the tests sought to be
undertaken through the impugned orders should be prohibited.
Selvi v State of Karnataka, (2010) 7 SCC 263 : AIR 2010 SC 1974 : 2010 (5) SCR 381.
Ramchandra Reddy v. State of Maharashtra, 2004 All MR (Cn) 1704; Dinesh Dalmia v. State. 2006 Criminal Law
Journal 2401; Smt. Selvi v. State By Koramangala Police Station. 2006 (6) AIR Kar 788' Arun Gulab Gavali v.
State of Maharashtra, 2006 Cr LJ 2615; All. MR (Cri) 74, f2005) (Orissa High Court); Interim Order of High
Court of Allahabad in HC- 40552/2003 dated 2 11 06- Order of High Court of Karnataka in Crl.P.No3380 dated
22nd November 2006; K. Venkateshwara Rao S/o K. VijayaSimha. Hydrabadv. State of A P Criminal Revision
Application No 1402 of 2006 of A P. High Court Decided on 30th August 2007; Slate of Andhra Pradesh v. Smt
Inaouri Padma 2008 Cr LJ 3992; Santokben Sharmanbhai Jadeja v. State of Gujarat. 2008 Cr LJ 6S • (2008) 1
GLR 497 : 2008 (2) KLT 398; Sh. Shailender Sharma v. State and Anr., WP (Crl I 532 of 2008 of Delhi High
Court Decided on 14th November 2008; Abhay Singh v. State of UP 2009 Cr LJ 2189‘ Sampatrao R. Arvelli v.
State of Maharashtra., 2009 Cn LJ 457; Manoj D Zz. t A Adi cUr>erinterdent of Police v. The State of
Maharashtra, Criminal Application
BomXffigb Coun U" Branch) Decided on Sih September 2009.

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I 462 Chapter 18—Tools of Interrogation
In the USA, in Townsend v. Sain,19 it was held that the petitioner’s confession was
1
constitutionally inadmissible if it was adduced by the police questioning, during a period when the
petitioner’s will was overbome by a drug having the property of a truth serum. In US v. Solomon, the
issue of narco analysis was discussed. The expert opinion given to t the court established that the truth
serum was generally accepted investigative technique. The experts said that adequate safeguarding
against unreliability was possible. It was also accepted that narco analysis did not reliably induce truthful
statements.
■ In 1989, the New Jersey Supreme Court in State v. Pitts,31 prohibited the use of Sodium Amytal
narcoanalysis because the narco analysis results were considered scientifically unreliable. The
Court opined that the subjects were susceptible to filling in gaps in stories with fabricated detail
(hyper amnesia), or believing in false events (memory hardening), and hypnotic recall, where
thoughts of non-existent events became embedded in the memory. Therefore, the test results should
not be regarded as conclusive evidence and there should be a need of corroborating statements
made during narco analysis with other evidences that had been procured.
P300 Test (Brain Mapping Test or Brain-wave Finger Printing).—This test was developed and
patented in 1995 by neurologist Dr Lawrence A. Farwell. He has published that a MERMER
(Memory and Encoding Related Multifaceted Electro Encephalographic Response) is initiated in the
accused when his brain recognises noteworthy information pertaining to the crime. These stimuli are
called the ‘target stimuli’. In this method, the accused is first interviewed and interrogated to find out
whether he is concealing any information. Then sensors are attached to the subject’s head and the
person is seated before a computer monitor. He is then shown certain images or made to hear certain
sounds. The sensors monitor electrical activity in the brain and register P300 waves, which are
generated only if the subject has connection with the stimulus - picture or sound. The subject is not
asked any questions. Brain mapping has received many supportive and critical comments about its
accuracy.
Judicial Decisions.—In Selvi v. State of Karnataka,32 it has been ruled that brain mapping is
constitutionally impermissible, since it violates the guarantee against self incrimination. The same
way as a lie detector cannot be forced on an accused, even the answers collected during the voluntary
process of an accused having undergone a lie detector test cannot compel the prosecution to compel
the production of answers elicited in the process as purporting to be exculpatory evidence? 3 In the
U.S., in Terry Harrington v. State of Iowa, a retired police officer Captain John Schweer was killed
on 22nd July 1977 while working as a security guard at a car dealership in Council Bluffs, Iowa.
Harrington, who was seventeen at that time, was charged with Schweer’s murder. At his trial,
Harrington had testified that he had not been present at the crime scene. Harrington also presented
alibi evidence with several witnesses placing him at a concert many miles away from the crime scene.
He was convicted of first degree murder on 4th August 1978 primarily on the testimony of a juvenile
accomplice Kevin Huges, and awarded life sentence without possibility of parole.
Subsequently, in a post conviction proceeding (PCP), Harrington’s lawyer had sought a new trial
on the ground of newly discovered evidence, which included information that witnesses had recanted
their testimony, that police had failed to disclose to the defence the evidence that there had been
another suspect, and the testimony by Dr. Lawrence Farwell

29. 372 US 293 (1963).

30. 753 F.2d. 1522 (9th Cir. 1985) 1985.
31. 116 N.J. 580, 663-65, 562 4.2d 1320 (1989).
32. (2010) 7 SCC 263.
33. Rajesh Talwar v. CBI, (2014) 1 SCC 628 : 2013 (12) Scale 464 : 2013 (7) Supreme 264 : 2013 (9) SLT 46.
34. Iowa District Court for Pottawattamie County (District Court case No. PCCV 073247).

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Guidelines on Administration of Lie Detector
Test

The Commission, in 16 May 1997, had received a petition dated 12 May 1997 from Shri Inder P. Choudhrie, a
resident of New Delhi, while he was lodged in the Shimla Sub-jail. The petitioner had alleged that while visiting Shimla
to attend the hearing of a civil suit, he had been arrested by the Shimla Police in connection with a murder and
thereafter had been subjected to various kinds of custodial torture for a period of 13 days of police custody. He had
been illegally detained and tortured both physically and mentally and subjected to 'Lie Detector Test' without his
consent and after he had been administered certain intravenous drug. He had prayed that the Commission might look
into his case and get the matter inquired by the CBI independently.

The case was originally considered by a Member of the Commission on more than once occasion. The Learned
Member did not find it a fit case for intervention by the Commission. The petitioner had sought review of the order of
the commission. The review petition was placed before the same Bench in terms of Regulation 32 (b) of the National
Human Rights Commission Procedure (Regulation), 1994. The Bench disposed of the review petition by an order dated
8 September 1998. Later the petitioner filed another petition dated 14 September 1998 for review. The case was later
listed before the Chairperson. The petitioner along with his Counsel was heard this matter and he had admitted that
almost every allegation made in the petition before the Commission formed part of the Writ Petition filed before the High
Court of Himachal Pradesh which had since been dismissed. A special leaf petition also been filed before the Supreme
Court which had also been dismissed.

As the complainant had also approached the High Court of Himachal Pradesh with a writ petition and later the Supreme
Court of Himachal Pradesh with a writ petition and later the Supreme Court of India with a special Leave Petition but
without success, the Commission declined to intervene in the matter. Subsequently, the review petitions filed by Shri
I.P.Choudhrie were also dismissed. While dismissing his last review petition vide an order dated 20 October 1999, the
Commission had observed :

"As the Lie Detector Test to be administered to an accused is not regulated by Law, it is appropriate that guidelines
for the test should be formulated."

It also observed:

"However, apart from and as not applicable to the present case, the Commission may have to consider formulating
appropriate guidelines for the conduct of' Lie Detector Tests'.

Accordingly, a set of guidelines relating to administration of 'Lie Detector Test' was formulated and approved by the
Commission.

The Commission considering this aspect felt that as the Lie Detector Test was not regulated by Law" it was
appropriate that guidelines for the test should be formulated.

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The National Human Rights Commission on 12 November 1999 adopted a set of guidelines relating to administration
of the Polygraph Test or the Lie Detector Test. The Commission had been receiving a number of complaints pertaining
to the conduct of this test said to be administered under coercion and without informed consent. The test is allegedly
conducted after a certain drug is administered to the accused. As the existing police practice in invoking Lie Detector
Test is not regulated by any Law or subjected to any guidelines, the Commission felt that it could tend to become an
instrument to compel the accused to be a witness against himself, violating the constitutional immunity from testimonial
compulsion.

These matters concerning invasion of privacy have received anxious consideration from the Courts too. A suggestion
for legislative intervention was made, in so far as matrimonial disputes were concerned. American Courts had taken
the view that such steps are routinely a part of everyday life and had upheld their consistory with due process. To hold
that because the privilege against testimonial compulsion protects only against extracting from the persons own lips
and the life and liberty provisions are not attracted may not be wholly satisfactory. In India's context, the immunity from
invasiveness (as an aspect of Article 21) and from self-incrimination (Article 20(3)) must be read together. The general
executive power cannot intrude on either constitutional rights and liberty or, for that matter any rights of a person. In
absence of a specific 'law', any intrusion into fundamental rights must be struck down as constitutionally invidious.

The Lie Detector Test is much to invasive to admit of the argument that the authority for this test comes from the
general power to interrogate and answer questions or make statements. However in India, we must proceed on the
assumption of constitutional invasiveness and evidentiary impermissiveness to take the view that such holding of
tests is a prerogative of the individual not an empowerment of the police. In as much as this invasive test is not
authorised by law, it must perforce be regarded as illegal and unconstitutional unless it is voluntarily undertaken under
non-coercive circumstances. If the police action of conducting a Lie Detector Test is not authorised by law and
impermissible, the only basis on which it could be justified is, if it is volunteered.

However, there is distinction between 'volunteering' and 'being asked to volunteer.' This distinction is some
significance in the light of statutory and constitutional protections available to any person. There is a vast difference
between a person saying, 'I wish to take a Lie Detector Test because I clear my name"; and the person told by the
police, "If you want to clear your name, take a Lie Detector Test". A still worse situation would be by the police say
"Take a Lie Detector Test, and we will let you go". In the first situation the person voluntarily wants to take the test. It
will still have to be examined whether such volunteering was under coercive circumstances or not. In the second and
third situations the police implicitly/explicitly link up the taking of the test to allowing the accused to go free.

The extent and nature of 'self-incrimination' is wide enough to cover the kinds of statements that were sought to be
induced. The test retains the requirement of personal volition and states that selfincrimination must mean conveying
information based upon the personal knowledge of the person giving information. The information, sought to be
elicited in a Lie Detector Test, is always information in the personal knowledge of the accused.

The Commission, after bestowing its careful consideration of this matter of great importance laid down, the following
guidelines relating to the administration of Lie Detector Test:

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No Lie Detector Test should be administered without the consent of the accused. Option should be given
to the accused as to whether he wishes to avail the test.
If the accused volunteers for the tests, he should be given access to a lawyer. The police and the lawy
should explain the physical, emotional and legal implication of such a test to him.
The consent should be recorded before a Judicial Magistrate.
During the hearing before the Magistrate, the accused should be duly represented by a lawye . At the
hearing the person should also be told in clear terms that the statement that is mad be a ’confessional'
statement to the Magistrate but will have the status of a statement made to the
police. .
The Magistrate shall consider all factors relating to the detention including the length of detention an the
nature of interrogation.
The actual recording of the Lie Detector Test shall be done in an independent agency (such as a hospital)
and conducted in the presence of a lawyer.
A full medical and factual narration of the manner of information received must be taken on record. These
guidelines of the Commission were circulated to the Chief Secretaries and DGPs of States as well as
Administrators and IGPs of UTs by a letter dated 11 January 2000.

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 GUIDELINES RELATING TO ADMINISTRATION OF
POLYGRAPH TEST (LIE DETECTOR TEST) ON AN
ACCUSED

The Commission has received complaints pertaining to the conduct of Polygraph Test (Lie Detector
Test) said to be administered under coercion and without informed consent. The tests were conducted after
the accused was allegedly administered a certain drug. As the existing police practice in invoking Lie
Detector Test is not regulated by any 'Law' or subjected to any guidelines, it could tend to become an
instrument to compel the accused to be a witness against himself violating the constitutional immunity from
testimonial compulsion.

These matters concerning invasion of privacy have received anxious consideration from the Courts
(see Gomathi Vs. Vijayaraghavan (1995) Cr. L.J. 81 (Mad); Tushaar Roy Vs. Sukla Roy (1993) Cr. L.J.
1959 (Cal); Sadashiv Vs. Nandini (1995) Cr. L.J. 4090). A suggestion for legislative intervention was also
made, in so far as matrimonial disputes were concerned. American Courts have taken the view that such
tests are routinely a part of everyday life and upheld their consistence with due process (See Breithbaupht
Vs. Abram (1957) 352 US 432). To hold that because the privilege against testimonial compulsion
“protects only against extracting from the person’s own lips” (See Blackford Vs. US (1958) 247 F (20) 745),
the life and liberty provisions are not attracted may not be wholly satisfactory. In India’s context the
immunity from invasiveness (as aspect of Art. 21) and from self-incrimination (Art. 20 (3)) must be read
together. The general executive power cannot intrude on either constitutional rights and liberty or, for that
matter any rights of a person (See Ram Jawayya Kapur (1955) 2 SCR 225). In the absence of a specific
’law’, any intrusion into fundamental rights must be struck down as constitutionally invidious ( See Ram
Jawayya Kapur (1955) 2 SCR 225; Kharak Singh (1964) 1 SCR 332 at pp. 350; Bennett Coleman (1972) 2
SCR 288 at pr. 26-7; Thakur Bharat Singh (1967) 2 SCR 454 at pp. 459-62; Bishamber Dayal (1982) 1
SCC 39 at pr. 20-27; Naraindass (1974) 3 SCR at pp. 636-8; Satwant (1967) 3 SCR 525). The lie detector
test is much too invasive to admit of the argument that the authority for Lie Detector Tests comes from the
General power to interrogate and answer questions or make statements (Ss 160-167 Cr. P C ). However,
in India we must proceed on the assumption of constitutional invasiveness and evidentiary
impermissiveness to take the view that such holding of tests is a prerogative of the individual not an
empowerment of the police. In as much as this invasive test is not authorised by law, it must perforce be
regarded as illegal and unconstitutional unless it is voluntarily undertaken under non-coercive
circumstances. If the police action of conducting a lie detector test is not authorised by law and
impermissible, the only basis on which it could be justified is, it is volunteered. There is a distinction
between: (a) volunteering, and (b) being asked to volunteer. This distinction is of some significance in the
light of the statutory and constitutional protections available to any person. There is a vast difference
between a person saying, “I wish to take a lie detector test because I wish to clear my name", and a
person is told by the police, “If you want to clear your name,

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take a lie detector test". A still worse situation would be where the police say, "Take a lie
detector test, and we will let you go". In the first example, the person voluntarily wants to
take the test. It would still have to be examined whether such volunteering was under
coercive circumstances or not. In the second and third examples, the police implicitly (in
the second example) and explicitly (in the third example) link up the taking of the lie
detector test to allowing the accused to go free.

The extent and nature of the 'self-incrimination' is wide enough to cover the kinds of
statements that were sought to be induced. In M.P. Sharma AIR 1954 SC 300, the Supreme
Court included within the protection of the self-incrimination rule all positive volitional acts
which furnish evidence. This by itself would have made all or any interrogation impossible.
The test - as stated in Kathi Kalu Oghad (AIR 1961 SC 1808)- retains the requirement of
personal volition and states that 'self-incrimination' must mean conveying information based
upon the personal knowledge of the person giving information'. By either test, the
information sought to be elicited in a Lie Detector Test is information in the personal
knowledge of the accused.

The Commission, after bestowing its careful consideration on this matter of great
importance, lays down the following guidelines relating to the administration of Lie Detector
Tests:

(i) No Lie Detector Tests should be administered except on the basis of consent of
the accused. An option should be given to the accused whether he wishes to
avail such test.
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to
a lawyer and the physical, emotional and legal implication of such a test should
be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed
should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the
statement that is made shall not be a 'confessional' statement to the Magistrate
but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the
length of detention and the nature of the interrogation.
(vii) The actual recording of the Lie Detector Test shall be done in an independent
agency (such as a hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of manner of the information received must be
taken on record.

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