Does the Supreme Court ban on brain mapping and narcoanalysis deny interrogators scientific tools?
by Col R Hariharan
A half-naked man is hung upside down and a police officer is beating him with an iron rod. Though this typical movie scene is often over-dramatized, it is not far from the truth. The police regularly uses violence and torture to extract “confessions” from suspects despite knowing full well it is illegal. They have even evolved “special techniques” to ensure the bodily damage is not visible. Even as I write, a TV news channel is telecasting live the scene of a policeman beating a 75-yearold suspected thief hung upside down from a tree.
The use of violent methods, including torture and deprivation, has always been accepted by society as an inevitable part of interrogation. The lack of professionalism among law enforcers and interrogators is the main reason.
In South Asia, the callousness associated with increasing politicization of crime is also responsible. Politicization is throttling both the rule of law and the administration of criminal justice, and allowing criminals to operate beyond the pale of law. In the process of foisting guilt on an innocent person, torture becomes a handy tool to obtain a “confession”.
However, law enforcement and intelligence agencies have to get at the facts rather than relying on “confessions” to bust crime and defuse security threats. So, not all interrogation depends on torture. Investigative bodies regularly use physical and mental stress induced in the subject to gain cooperation.
After carrying out a few hundred intelligence interrogations in both war and peacetime, I have found violence an overrated instrument of interrogation. Often, it is counterproductive because the suspect, in fear of pain, agrees to sign on the dotted line.
The suspect or prisoner is in shock at the time of his arrest or captivity. And the fear of the unknown is his enemy during interrogation. I have found that leveraging this fear rather than using violence can yield quick results.
The methods that leverage fear have a number of variations – from taking the suspect to a dummy burial ground (created with mounds of earth) and asking him to dig his own grave before he is buried alive to what Lt Col Oreste Pinto (the Dutch counterintelligence officer of “Spy Catcher” of World War II fame) practised. To create bonhomie, he offered the suspect plenty of beer but did not allow him to use a toilet. I once tried it out on a Pakistani Lt Col and it worked beautifully! But there are limitations in using such interrogation methods. They are not torture in the classical sense but, as psychological torture, are equally condemned by human rights activists now.
So it has become common for investigative agencies like the CBI to use modern forensic tools like brain mapping (Brain Electrical Activation Profile), the polygraph (popularly known as the lie detector test), and narcoanalysis as aids to interrogation of suspects. Though these tests may not yield 100 per cent accurate results, they do provide useful pointers in gathering vital evidence.
However, the Abu Ghraib prison scandal, when US intelligence personnel subjected Iraqi prisoners to physical and psychological torture and degradation in 2004, raised a furore worldwide. As a fall out, the CIA’s use of questionable physical and psychological methods came under legislative scrutiny. Its political impact was demonstrated in the 2004 US presidential poll. It also triggered a revision of the CIA’s interrogation techniques.
Thereafter, this issue has been taken up by human rights activists everywhere. Even the traditional physical and psychological stress methods like sleep deprivation, restricted diet and solitary confinement are now becoming passé. So it was not surprising when India’s Supreme Court recently ruled that compulsory brain mapping, polygraph tests and narcoanalysis violated Articles 20(3) and 21 of the Constitution.
Article 20(3) says: “No person accused of any offence shall be compelled to be a witness against himself” while Article 21 guarantees that no person shall be deprived of his life or personal liberty except under the procedure established by law. The court has held that a person’s right to make a statement or remain silent involves the exercise of the right to privacy.
These tests have been challenged in court in the past. In a 2006 judgement, the Madras High Court held that subjecting an accused to narcoanalysis is not tantamount to testimony by compulsion. In 2004, the Bombay High Court had ruled in the Telgi multicrore-rupee fake stamp paper case that subjecting an accused to tests like narcoanalysis does not violate the fundamental right against self-incrimination.
However, now the three-member Supreme Court Bench rejected the argument of “compelling public interest”, especially against terror suspects, as reason enough for employing these tests. The Supreme Court order is in conformity with the increasing awareness of human rights and humanitarian concerns worldwide. This awareness is overtaking national security imperatives in handling and interrogation of prisoners and suspects.
CBI Director Ashwani Kumar has called the Supreme Court verdict a setback for forensic science. In a media interview, he agreed with the verdict on the intrusive nature of narcoanalysis but suggested that Parliament be persuaded to allow non-intrusive tests such as polygraph tests and brain mapping.
His point is valid. Unless we use all the available forensic tools in crime investigation, law enforcement will not be able to perform at its best. The fat cats of the criminal world will get away and the politico-criminal nexus will only grow. National security could run the risk of compromise.
The interrogation process is becoming a minefield of sorts for the interrogator. On the one hand, he has to extract information from a suspect unwilling to part with it while, on the other, he has to be wary of legal restrictions that deny him modern tools to fulfil his task.
Undoubtedly, the interrogation methods of law enforcement agencies have to be brought within the ambit of legality. A methodology has to be evolved that will be fair to the interests of the state without curtailing the individual’s basic rights. Knowing our system, it might be years before such changes are put into practice. In the meanwhile, if the interrogator is prevented from using scientific aids how does he successfully conduct an interrogation? I am glad I am retired now.
Courtesy: GFiles India, August 2010
URL: http://gfilesindia.com/title.aspx?title_id=155
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