Chapter VII

Scientific Analysis of Forensic

Science and its Implication in the
Protection of Human Rights:
An Appraisal
 SCIENTIFIC ANALYSIS OF FORENSIC SCIENCE AND
ITS APPLICATION IN THE PROTECTION OF HUMAN
RIGHTS: AN APPRAISAL

7.1 Introduction
“All human beings are born free and equal in terms of dignity and their rights.
They are endowed with reason and conscience and showed act towards one another in
a spirit of brotherhood.” 1
“India with all its thousands of years of cultural heritage and Vedic vintage,
has not been able assure to its people even a pretence of the preamble, ground
undertaking of Justice, Liberty, Equality, and Fraternity to citizen.”
Justice V.S. Krishna Iyyer

Human rights are those natural rights which every human is entitled to posses
being a human being .Though a very ancient concept, the present day nomenclature
appeared only during the last century, where violation of natural fundamental rights
escalated. 2 The concept of human rights though is central to political science, it is
poorly understood .There is no agreement on its meaning nature and contents. It is a
concept very much contested not only between East (representing former scientist)
and West (representing liberal democratic states) but also between developed and
developing countries. Each group of nations had a different perception of human
rights. 3

The newly emerging states of the Third World, while adopting the eastern or
western model of human rights paradigm in their combination of both, focused on
soliditary or group rights such as rights to self-determination of people’s including
sovereignty over their natural resource, the rights to develop healthy and ecologically
balanced environment, the right to common heritage of mankind. They also insisted
on interdependence and individual of civil and political rights to economic rights and
social rights.

Thus, the modern concept of human right is much comprehensive in its nature
and content. It includes three types of rights: civil and political; economic, social and

1 Rahul Rai, Human Rights un Initiatives 1 (Global Vision Publishing House, New Delhi, 2011).
2 Prakash Mishra, Human Rights in India 1(Cyber Tech Publication, New Delhi, 2012).
3 Abdul P.Vijapur, Human Rights in International Relation17 (Manak Publication Pvt. Ltd. 2010).
 Chapter VII

cultural and the emerging collective or group rights. Human rights are those
conditions of life that allow us to fully develop and use our human qualities of
intelligence and conscience in order to satisfy our spiritual needs. Human rights far
from being an abstract subject for philosopher, political scientist and lawyer, affect
the daily lives of everyone –man, women and the children. 4

Human rights are universal. No one has to earn or be worthy of human rights.
Human rights are unchallengeable: one cannot loss these rights any more than one can
cease to be a human being. Human rights are indivisible: one cannot be denied a right
because someone decides that it is less important or “non essential”. Human rights are
autonomous: all human rights are port of complementary framework. 5Human rights
are essentially a product of democracy. They are the rights, particular social practices
to realize those values. A human right should not be confused with the value or
aspiration underlying it or with enjoyment of the object of the right.

Principles that set out certain standards of human behaviour, and are regularly
protected as legal rights in national and international law. They are "commonly
understood as inalienable fundamental rights to which a person is inherently entitled
simply because she or he is a human being." Human rights are thus conceived as
universal (applicable everywhere) and egalitarian (the same for everyone). The
doctrine of human rights has been highly influential within international law, global
and regional institutions. Policies of States and in the activities of non-governmental
organizations and have become a cornerstone of public policy around the world. The
idea of human rights suggests, "If the public discourse of peacetime global society can
be said to have a common moral language, it is that of human rights." The strong
claims made by the doctrine of human rights continue to provoke considerable
skepticism and debates about the content, nature, and justifications of human rights to
this day. Indeed, the question of what is meant by a "right" is itself controversial and
the subject of continued philosophical debates. 6

The development of human rights movement can be understood by looking at

its political beginnings ,conceptual reach ,evolution and scope ,and the agent of that
movement .The term ‘human right’ is relatively new ,but aspect of its available

4 Id.19.
5 Varun Naik and Mukesh Sahai, Human Rights Education and Training 1, (Crescent Publication,
2011).
6 “Human Right”, available at: http://en.wikipedia.org/wiki/Human_rights visited on 05-06-2014.

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meaning are very old. All the major religions ,including Buddhism, Christianity
,Hinduism and Islam, speak of the inherent dignity of the individual or the sacred
nature of the human personality .Our Conventional international law of human rights
is linked with the ideas having roots in natural law (as propounded in many western
countries) and Roman laws. Political thinkers such as Jhon Loke (1632-1704) and
Jean –Jacques Rousseau (1712-1778) and legal scholar such as Fransisco Suarer
(1549-1617), Hugo Grotius (1583-1648), and Emmerich De Vattel (1714-1767) have
also contributed our current understanding of both natural and its human rights
contents. 7Human rights are those basic entitlement and freedom that make our lives
satisfying and meaningful .To be free from fear, free from deprivation and to have the
opportunities to achieve all that we are capable of is a fundamental human aspiration
.That is why human rights are sometimes called “natural rights”. Because no one
gives these rights and no one can legitimately take them away, human rights are
supposed to be ‘unchallengeable’. Human rights are also recognized as being
‘universal’, which means they belong to and are enforceable by everyone –no matter
what their race, religion, caste sex social or economic status, disability or place of
birth is. At the heart of the idea of human rights is the notion that all the people are
born free and equal. Everyone is entitled to live with dignity and no one, neither the
state nor the community, nor the family, nor society has any right to criminate or trait
any one unfairly or unjustified. 8

“Human Rights” means the rights relating to life, liberty, equality, and dignity
of the individual guaranteed by the Constitution or embodied in the International
covenants and enforceable by the courts in India. 9 Human rights are universal and are
bright right of every member of the human family. No one has to earn or deserve
human right. Human rights are inalienable: one cannot lose these rights any more than
one can cease to be a human being. Human rights are indivisible 10.

Human rights are essentially a product of democracy and are not just abstract
values such as liberty, equality, and Security. They are the rights, particular social

7 S.R.Chauhan and M.S Chauhan, International Dimension of the Human Rights 1 (Global Vision
Publishing House, New Delhi, 2012).
8 Mandeep Tiwari, Sneh Arora, et.al, Human Right Commission: A Citizen Handbook 15 (Matrix,
New Delhi, June 2006).
9 http://en.wikipedia.org/wiki/National_Human_Rights_Commission_of_India (visited on date 15-
05-2014).
10 Varun Naik and Mukesh Sahai, Human Rights Education and Training 1, (Crescent Publication,
2011).

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practices to realize those values. Human rights should not be confused with the value
or aspiration underlying it or with enjoyment of the object of the right. The
development of human rights movement can be understood by looking at its political
beginnings, conceptual reach, evolution and scope, and the agent of that movement. 11

In modern World, the human rights idea and its protection and has become
universal and has virtually been accepted by all the Nation, States, and Society
respectively. In the modern times Human Rights have become an absolute movement.
International Organization Governmental and Non-Governmental agencies have
continuously been exploring the dynamics of human rights and have been working to
evolve such mechanism which could safeguard the rights of human beings. 12

7.2 Historical Perspective of Human Rights

The origin of human rights may be found both in Greek philosophy and the
various world religions. In the Age of Enlightenment (18th century) the concept of
human rights emerged as an explicit category. Man/woman came to be seen as an
autonomous individual, endowed by nature with certain inalienable fundamental
rights that could be invoked against a government and should be safeguarded by it.
Human rights were henceforth seen as elementary preconditions for an existence
worthy of human dignity.

Before this period, several charters codifying rights and freedoms had been
drawn up constituting important steps towards the idea of human rights. During the
6th Century, the Achaemenid Persian Empire of ancient Iran established
unprecedented principles of human rights. Cyrus the Great (576 or 590 BC - 530 BC)
issued the Cyrus cylinder which declared that citizens of the empire would be allowed
to practice their religious beliefs freely and also abolished slavery. The next
generation of human rights documents were the Magna Charta Libertatum of 1215,
the Golden Bull of Hungary (1222), the Danish Erik Klipping’s Håndfaestning of
1282, the Joyeuse Entrée of 1356 in Brabant (Brussels), the Union of Utrecht of 1579
(The Netherlands) and the English Bill of Rights of 1689. These documents specified
rights which could be claimed in the light of particular circumstances (e.g., threats to
the freedom of religion), but they did not yet contain an all-embracing philosophical

11 “Human Rights”, available at: www.hinduonline.com (visited on date 20-03-2012).

12 Ibid.

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concept of individual liberty. Freedoms were often seen as rights conferred upon
individuals or groups by virtue of their rank or status. 13

In the centuries after the Middle Ages, the concept of liberty became gradually
separated from status and came to be seen not as a privilege but as a right of all
human beings. Spanish theologists and jurists played a prominent role in this context.
The work of Francisco de Vitoria (1486-1546) and Bartolomé de las Casas (1474-
1566) must be highlighted. These two men laid the (doctrinal) foundation for the
recognition of freedom and dignity of all humans by defending the personal rights of
the indigenous peoples inhabiting the territories colonised by the Spanish Crown. 14

The Enlightenment was decisive in the development of human rights concepts.

The ideas of Hugo Grotius (1583-1645), one of the fathers of modern international
law, Samuel von Pufendorf (1632-1694), and of John Locke (1632-1704) attracted
much interest in Europe in the 18th century. Locke, for instance, developed a
comprehensive concept of natural rights; his list of rights consisted of life, liberty and
property. Jean-Jacques Rousseau (1712-1778) elaborated the concept under which the
sovereign derived his powers and the citizens their rights from a social contract. The
term human rights appeared for the first time in the French Déclaration des Droits de
l’Homme et du Citoyen (1789). 15

The people of the British colonies in North America took the human rights
theories to heart. The American Declaration of Independence of 4 July 1776 was
based on the assumption that all human beings are equal. It also referred to certain
inalienable rights, such as the right to life, liberty and the pursuit of happiness. These
ideas were also reflected in the Bill of Rights which was promulgated by the state of
Virginia in the same year. The provisions of the Declaration of Independence were
adopted by other American States, but they also found their way into the Bill of
Rights of the American Constitution. The French Déclaration des Droits de l’Homme
et du Citoyen of 1789, as well as the French Constitution of 1793, reflected the
emerging international theory of universal rights. Both the American and French
Declarations were intended as systematic enumerations of these rights. 16

13 “Human rights definition and classification”, available at : http://www.humanrights.is/the-human-

rights (visited on date 05-06-2014).
14 Id.
15 Ibid.
16 Ibid.

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The classic rights of the 18th and 19th centuries related to the freedom of the
individual. Even at that time, however, some people believed that citizens had a right
to demand that the government endeavour to improve their living conditions. Taking
into account the principle of equality as contained in the French Declaration of 1789,
several Constitutions drafted in Europe around 1800 contained classic rights, but also
included articles which assigned responsibilities to the government in the fields of
employment, welfare, public health, and education. Social rights of this kind were
also expressly included in the Mexican Constitution of 1917, the Constitution of the
Soviet Union of 1918 and the German Constitution of 1919.

In the 19th century, there were frequent inter-state disputes relating to the
protection of the rights of minorities in Europe. These conflicts led to several
humanitarian interventions and called for international protection arrangements. One
of the first such arrangements was the Treaty of Berlin of 1878, which accorded
special legal status to some religious groups. It also served as a model for the
Minorities System that was subsequently established within the League of Nations. 17

The need for international standards on human rights was first felt at the end
of the 19th century, when the industrial countries began to introduce labour
legislation. This legislation -which raised the cost of labour - had the effect of
worsening their competitive position in relation to countries that had no labour laws.
Economic necessity forced the states to consult each other. It was as a result of this
that the first Convenyions were formulated in which states committed themselves vis-
à-vis other states in regard to their own citizens. The Bern Convenyion of 1906
prohibiting night-shift work by women can be seen as the first multilateral
Convenyion meant to safeguard social rights. Many more labour Convenyions were
later to be drawn up by the International Labour Organisation (ILO), founded in 1919.
Remarkable as it may seem, therefore, while the classic human rights had been
acknowledged long before social rights, the latter were first embodied in international
regulations. 18

The atrocities of World War II put an end to the traditional view that states
have full liberty to decide the treatment of their own citizens. The signing of the
Charter of the United Nations (UN) on 26 June 1945 brought human rights within the

17 Id.
18 Ibid.

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sphere of international law. In particular, all UN members agreed to take measures to

protect human rights. The Charter contains a number of articles specifically referring
to human rights. Less than two years later, the UN Commission on Human Rights
(UNCHR), established early in 1946, submitted a draft Universal Declaration of
Human Rights (UDHR) to the UN General Assembly (UNGA). The Assembly
adopted the Declaration in Paris on 10 December 1948. This day was later designated
Human Rights Day. 19

During the 1950s and 1960s, more and more countries joined the United
Nation Upon joining, they formally accepted the obligations contained in the UN
Charter, and in doing so subscribed to the principles and ideals laid down in the
UDHR. This commitment was made explicit in the Proclamation of Teheran (1968),
which was adopted during the first World Conference on Human Rights, and repeated
in the Vienna Declaration and Programme of Action, which was adopted during the
Second World Conference on Human Rights (1993). Since the 1950s, the UDHR has
been backed up by a large number of international Convenyions. The most significant
of these Convenyions are the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights
(ICESCR). These two Covenants together with the UDHR form the International Bill
of Human Rights. At the same time, many supervisory mechanisms have been
created, including those responsible for monitoring compliance with the two
Covenants. 20

Human rights have also been receiving more and more attention at the regional
level. In the European, the Inter-American and the African context, standards and
supervisory mechanisms have been developed that have already had a significant
impact on human rights compliance in the respective continents, and promise to
contribute to compliance in the future. 21

7.3 Human Right under Human Rights Declaration: Concept and

Analysis
Human rights are generally manifested in the individual and collective living
of the people with liberty and equality and their concomitant attributes. The

19 Ibid.
20 Ibid.
21 Id.

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contentment of the human right obviously come to be developed with the

development of society 22. Particular with respective representative government having
Constitutional norms for governance. Consequently, preservation of the basic rights of
the people became a basic norms of governance .Since it is the state which come to be
entrusted with power to govern the basic of fundamental rights come to be jealously
guarded the state power and the functionaries of the states . 23
The United Nation Charter, which comes into being in 1945, is, however, the
first international mechanism that incorporate human rights as a concept and made the
promotion and protection of those rights, one of the purposes of the individual and
collective obligation of states. In turn, that purpose and its associated international;
obligation ,were informed by four things :a perceived need during World War II to
recognize human rights, the Holocaust ,a fundamental aim of the U.N. ,and an agreed
on means to realize that aim. The Universal Declaration of human Rights was adopted
by United Nation on Dec., 10, 1948. This declaration has only been “a common
standard of achievement for all people and all nation”, but the source of moral
inspiration for all other human rights, instrument. 24 The General Assembly
proclaimed:
This Universal Declaration of human Rights as a common standard of for all
people and all nation to the end that every individual and every organ of society,
keeping this declaration constantly in mind, shall strive by teaching and education to
promote respect for these freedom and by progressive measure, national and
international to Secure their universal and effective recognition and observance, both
among people member states themselves and among their jurisdiction. 25
The National Human Rights Commission (NHRC) was constituted under the
Protection of Human Rights Act on 12th, October, 1993. This Act drew its inspiration
mostly from international covenants like that of Civil and Political Rights and the
International Covenant on Economic, Social and cultural Rights adopted by the
General Assembly of the United Nations on the 16th December, 1966. Even in
defining human rights, the Act has mentioned about these covenants frequently. 26

22 Vijya Kumar,”Human Rights and Criminal Justice System in India”, XVI CILJ397 (2003).
23 Id.598.
24 S.R.Chauhan and M.S.Chauhan, International Dimension of the Human Rights 3(Global Vision
Publishing House 2012).
25 Paras Diwan and Piyush Diwan, Human Rights and the Law; Universal and Indian 9(Deep and
Deep Publication, New Delhi, 1998).
26 Pawan Sinha, “Chapter on National Human Right Commission (NHRC)”, IV CriLJ 155(2011).

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According to the Protection of Human Rights Act 1993, the National Human
Rights Commission was constituted for the better protection of human rights and the
matters connected therewith or incidental thereto. 27 The protection of the human
dignity is a part and parcel of human rights. This is the main object of the National
Human Rights Commission is to provides protection to the human beings. It is a
object that originate not only from statutes of the commission by from constitution
itself, for Article 21 of te Indian constitution , as the Supreme Court interpreted it,
means that all those who live in India have a right to a life with human dignity.

The defense of human rights and dignity is an imperative of the Constitution

and there should be no doubt or ambivalence on this matter. The greater the power,
the greater the responsibility to recognize and to act upon this imperative. Mahatma
Gandhi, who had an unrivaled capacity to express the truth with simplicity and
directness, put it this way: “It has always been a mystery to me how men can feel
themselves honored by the humiliation of their fellow beings.” Thus every citizen of
India, and especially every functionary of the State, should bear Gandhiji’s
observation and truth constantly in mind. That would see us move closer to a life with
dignity for all. 28.

The National Human Rights Commission had organized a core Group of

specialist to examine all aspects of the forensic science to develop the forensic science
services in the country, which are at present greatly in need of attention. The Group
studies the laboratories of State forensic science and services available in the country
and submitted its report, which was released to the public personally by Shri L.K.
Advani, Union Minister for Home Affairs, on 11 January 1998. Copies of the report
were thereafter sent to the Ministry of Home Affairs and the Chief Secretaries of all
States/UTs. As there was no reaction from the Ministry of Home Affairs to the report,
the Commission considered it essential to remind that Ministry, on 9 August 2000,
that a response was due. An interim reply was subsequently received from the
Ministry of Home Affairs on 5 September 2000, stating that the matter was under
consideration. The Commission wrote to the Ministry again, on 10 October 2000,
asking for more specific information on the action, if any that was being taken 29.

27 Supra 2.
28 “Human Rights”, available at: www.nhrc.nic.in (visited on date 23-12-2012).
29 Ibid.

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The Commission was of the firm opinion that the report ready by the center
Group of specialist contained numerous important recommendations. The forensic
science services in the country are unhappily not adequate. So the Commission urged
that the Ministry of Home Affairs and the various State/UT Governments to act
promptly on the report, which was with them for over three years. Failure to improve
the forensic science services was gravely affecting the administration of criminal
justice in the country and leading to the serious violations of human rights. 30

7.4 Law relating Human Rights in India

Right to life and personal liberty looms very large in the universal Human
Rights Charter. Obviously, the man and woman have been the victims of the
deprivation of these rights for centuries and in many societies those rights is still
trampled upon with impunity and brazen brutality. It was but natural for the Charter
of Universal Right to dwell on all aspects of this right. Art.3 of the Declaration
proclaims- Everyone has the right to life, liberty and Security of person 31. Art.6 of the
Second Covenant proclaims the right to life thus; every human being has an inherent
right to life and this right shall be protected by law. Likewise Art 9 (1) of the
Covenant declared the right to personal liberty thus; everyone has the right to liberty
and Security of the person. Similarly Sub Art. (2), (3), and (4) of the Art. 19 deal with
other aspects of the personal liberty.

The Constitution of India deals with the Right to Life and Personal Liberty
under Art.21 while Art. 20 and 22 deal with the protection of personal liberty against
arrest and detention so that human dignity is not violated and human being is treated
as human beings. 32

From May 12-14, 2005, the Asian Human Rights Commission (AHRC) held a
consultation in Hong Kong with a group of forensic and legal professionals to discuss
the interplay between forensic science and human rights. The participants examined
how the improved institutions and procedures for forensic investigations are essential
to the rule of law and thus to give effective redress to the victims of human rights
violations. The participants agreed that the extent to which forensic science is used in

30 Ibid.
31 Asima Sahu, Human Right Violation and The Law 91-92, quoted by Mrs. Shashi Jain (first
published in 1999).
32 Id., 93.

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criminal investigations has a direct bearing on the scale of human rights violations
throughout Asia, particularly torture. Torture is alleged to be the most common
method of criminal investigation for police in Asia. Even in those countries that have
ratified the U.N. Convention against Torture (CAT) and Other Cruel, Inhuman or
Degrading Treatment or Punishment and the International Covenant on Civil and
Political Rights (ICCPR), which also absolutely prohibits torture, it is still
widespread. However, in few territories of Asia where forensic science is a key part of
criminal investigations, such as South Korea and Hong Kong, torture is now rarely
used and is usually detected and punished effectively.

To deny the use of forensic science in criminal investigations itself amounts to

a serious human rights violation as it permits the continuation of imperfect and violent
methods of policing and the gross abuses. Thereafter, if the perpetrator of a crime or a
gross violation of human rights is not detected for the want of proper forensic analysis
- either inadvertently or deliberately. Where effective remedies are not forthcoming,
crime and human rights abuses are further encouraged. Thus, any state that is serious
about preventing the crimes and protecting human rights is obliged to improve the
quality of criminal investigations, which means using forensic science expertise
extensively .The role of forensic experts in criminal investigations throughout Asia is
usually limited because of vast powers held by the police. In most of the countries, the
police control all areas of criminal investigation while in a few the public prosecutor
shares the power. In many nations, the law has not described the role of forensic
professionals in detail; in most, their presence in criminal investigations is not
obligatory. The result is that the police or prosecutors rarely use forensic experts.
Unless systemic changes are made to expand the role of forensic professionals and
delimit the power of the police over criminal investigation, this situation is unlikely to
change. 33

The shortage of forensic professionals in most parts of Asia is another serious

concern. Even in a more developed country like Thailand, for instance, there are only
five forensic pathologists. Nowhere are there enough qualified persons available to
afford proper services to the public. As a consequence, many suspicious deaths are
not properly investigated. Murders and extrajudicial killings may go undetected or be

33 “Violation of human rights through scientific methods”, available at: www.hrsolidarity.net(visited

on date 25-12-2013).

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deliberately concealed in the absence of the necessary staff. It follows that increasing
the number of forensic experts is a key challenge. 34

Obstacles to the wider use of forensic science in criminal investigations must

be understood as the obstacles to the protection of human rights and must be taken up
by governments and the public in these terms. It is to be noted that in territories where
forensic science has become an integral part of criminal investigations it has been due
to the presence of people who have dared to speak out. Where for reasons of
repression or otherwise people do not talk openly, bad criminal investigations and
human rights abuses blatantly persists. 35

Forensic specialists should themselves play a much more active role in

influencing public opinion towards change. They must talk to people more directly
and make them aware of the benefits when independent forensic science facilities are
available. They must use the media and other channels for far-reaching
communication, both as educators and reformers. As they are in a better position than
others to inform the State and the public on the manner in which criminal
investigations can be improved through the use of forensic science, they should take
advantage of this position to speak with authority and influence. 36

Human rights defenders have a responsibility to mediate and expand contact

between forensic experts and the public. To play this role, they must learn more about
the obstacles to forensic science becoming an integral part of criminal investigations
Where human rights groups limit talks to generalities and avoid going into the details
of how to apply theories and instruments of human rights, they are unlikely to effect
any significant changes in the complex relations that permit continued abuses in most
parts of Asia. For its part, the Asian Human Rights Commission (AHRC) will deep
discussion on the relationship between forensic science and human rights and is
committed to sharing it with a larger audience throughout this region 37.

7.5 Role of Forensic Scientist in Criminal Justice Delivery System

The forensic scientist are also faced with the task of solving puzzling and
captivating evidence that are sent for their analysis by the perplexed investigation

34 Ibid.
35 Ibid.
36 Ibid.
37 Id.

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agencies .What follows will give an idea of what the forensic scientist have to deal
with when they try to help the investigating agencies in tracing the criminal. 38

There are many worldwide organizations that use the term expert witness,
perhaps more than a million in number. Bodies that monitor and maintain strand for
single professional group are most likely to be the best initial starting place when
seeking a forensic expert. These bodies should not be self-created institution or
association ,but those that a national or other gov. recognize as being directly
involved in the training and accreditation of the professional group. Forensic expert
have a very significant role in the administration of justice. Currently, there are no
failsafe means of identifying the best expert or even identifying potential fraudulent
expert. All those involved in using expert themselves, must be prepared to question
the qualification of an expert to the appropriate authorities if there are serious
concerns about their validity and performance. 39

In India, if the court has to form an opinion upon a point of science then the
opinion upon that point, of a person especially skilled in such science is relevant by
virtue of Sec 45 of Indian evidence Act 1972.Thus Sec 45 of Indian Evidence Act
1872,is wide enough to cover all branch of specialized knowledge, although,
occasionally doubts have arisen in this regard with the advancement of the scientific
and technical knowledge there is tendency to widen the scope of the term “science
and art”. The opinions of experts are generally admissible whenever an issue
comprises a subject of which knowledge can only be acquired by special training or
experience. 40As per the proposed the Indian evidence (Amended) Bill, 2003, in Sec
45 of the principle act, for the portion beginning with the words “when the courts has
to form an opinion and ending with the words such person are called expert” the
following substitution has been suggested –

“When the court has to form an opinion upon a point of foreign law, or of
science or art, or as to the identity of handwriting or finger impression or footprint or
palm impression or typewriting or usage of trade or technical terms or identity of
person animal, the opinion, upon that point of persons specially skilled in such foreign
law, science or art, or as to the identity of handwriting, typewriting, finger impression,

38 Durga Pada Das, “Forensic Awareness in India”3CrLJ 43(2003).

39 Encyclopedia of Law and Society 596, vol.2, ed.2007.
40 Law Society of India v. Fertilizers and Chemical Travencore Ltd .and ors AIR 1994 Ker. 308.

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footprint, palm impression, usage of trade, technical terms or identity of person or

animal, as the case may be, are relevant facts such person called experts ” 41

The above substitution was proposed by the recommendation of the 185th

Report of the Law Commissions of India in the year 2006 which could not be
materialized. 42

Section 45 gives the definition of forensic expert. An expert is one who has
acquired special knowledge; skill or experience in any science, art, trade or
profession, such knowledge may have been acquired by practice, observation or
careful studies. The word ‘science’ and the term ‘art’ not being limited to the fine art
but having its original sense of handicraft, trade, profession and skill in work which,
with advancement of culture has been carried beyond the sphere of the common
pursuits of life in to that of artistic and scientific action. 43

Forensic expert now are chosen based on the qualities alluded to earlier.
However, there is still the possibility that the expert who shout the loudest may get
his/her opinion across, particularly in those areas where pure science and analytical
techniques are of rarely used personal knowledge remains one of the most common
ways in which one identifies an expert to give evidence in a case. It is important for
an expert to have experience in giving evidence from opposing “sides” for example,
on behalf of the defense as well as prosecution in criminal case. The impartiality of
expert who solely provide evidence either for the defense or solely provide evidence
for the prosecution term may be subject to accusation of being partisan.” 44

The role of forensic expert is very crucial. Any wrong unreasoned or careless
opinion may cause great injustice either to prosecution or to accused .This means that
forensic experts must possess extremely right and additional license and he/she should
perform his/her duties properly, carefully and diligently . By giving an opinion on a
subject in court a forensic expert becomes a part and parcel of judicial process. In
most of the cases the report of forensic expert is respected and given due credit.

41 “185th Repot of Law Commission”, available at: lawcommissionofindia.nic.in (visited on date 14-
07-2012).
42 Abhijeet Sharma, Guide to DNA Test in Paternity Determination and Criminal Investigation74,
with a foreword by Hon’ble Justice Dr. Arijeet Pasayat, Judge of S.C. (Wadhwa Publication,
Nagpur 2007).
43 Krishan Vij and Rajesh Biswas, Basic of DNA and Evidentiary Issues 112 (Jaypee Brothers
Medical Publisher (P) Ltd, New Delhi, 2004).
44 Supra 10, 596.

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Thus, it is the judge, who is interested in real justice who should therefore,
ascertain the facts, incorporate them and operate them in the dissemination of justice.
The new generation of the judges should especially be aware of their responsibilities
in this regard as in the future evidence will play more significant role. It will be used
more frequently, almost in all cases. 45

The forensic scientist is basically interested in harnessing his knowledge for

his pursuits to achieve the two-fold aim of criminal justice- the guilty shall not escape
and the innocent shall not suffer. The basic premise in using scientific evidence in
criminal justice delivery system is that the forensic scientist is neither a witness for
the prosecution nor a witness for the defense, rather he is a witness of the court of
law. However, in practice, the government forensic science institutions, as part of the
police set up cannot maintain absolute independence at all levels. Moreover, the
police investigators generally collect the physical clues and any discrepancy in this
regard seriously affects the final scientific results and their impact on the criminal
justice process. It is evident that inspite of several limitations today, forensic
scientists, as witnesses in a court (whether acting for prosecution or for the defense),
make important contribution to the criminal justice process. Apart from their
contributions in solving traditional crime cases, the services of forensic scientists are
being progressively utilized in the areas of anti-terrorist operations, mass disaster
management, cyber crime investigation, human rights protection, environment
protection, consumer protection, protection of intellectual property rights, etc. All
these aspects primarily concern the welfare of the society. Utilization and application
of forensic science in these fields involves adaptation of both, known and newer
scientific techniques for crime investigation. In 1993, the Royal Police Commission
(US) critically evaluated the role of forensic science in criminal justice delivery
system in the United Kingdom and outlined the measures concerning its development,
including training as well as the procedures for presenting the expert evidence in the
courts of law 46.

In India, the role played by the Government forensic scientists has been
given due recognition in Section 293 of the Code of Criminal Procedure (1973) of

45 Dr. B.R Sharma, Forensic Science in Criminal Investigation and Crime 54, (Alia Law Agency,
Allahabad, edn. 4, 2011).
46 B.B Nanda and R.K. Tiwari, Forensic Science in INDIA – A Vision for 21st Century 7-8 (2001).

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the country. Section 293 of the Code of Criminal Procedure (Cr.P.C) entitled
“Reports of Certain Government Scientific Experts” is reproduced below:

(1) Any document purporting to be a report under the hand of a Government

scientific expert to whom this Section applies, upon any matter or thing duly
submitted to him for examination or analysis and report in the course of any
proceeding under this Code may be used as evidence in any inquiry, trial or
other proceeding under this Code.

(2) The court may, if it thinks fit, summon and examine any such expert as to the
subject matter of his report.

(3) Where any such expert is summoned by a Court and he is unable to attend
personally, he may, unless the Court has expressly directed him to appear
personally, depute any responsible officer working with him to attend the
Court, if such officer is conversant with the facts of the case and can
satisfactorily depose in the Court on his behalf.

(4) The Section applies to the following Government scientific experts, namely:
a. any Chemical Examiner or Assistant Chemical Examiner to
Government;
47
(b. The Chief Inspector of Explosives ;)
c. The Director of the Finger Print Bureau;
d. The Director, Haffkeine Institute, Bombay;
e. The Director 48, (Deputy Director and Assistant Director) of a Central
Forensic Science Laboratory or a State Forensic Science Laboratory;
f. The Serologist to the Government.
49
(g. Any other Government scientific expert specified by notification by the
Central Government for this purpose.) 50

The sub-clause (1) of this Section makes a departure from the elementary
rules of law which state that unless the evidence is given on oath and is tested by a
cross-examination, it is not legally admissible against the affected party. This

47 Subs. by Act 25 of 2005 , Sec. 26(a), for clause (b) (w.e.f. 23-6-2006). Clause (b) ,before
Substitution, stood as under -
“(b) the Chief Inspector of Explosive;”
48 Ins. by Act of 45 of 1978, Sec. 21 (w.e.f. 18-12-1978).
49 Added by Act 25 of 2005, Sce. 26(b) (w.e.f. 23-6-2006).
50 Section 293, Criminal Procedure Code, 1973.

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Section makes the report of any of the experts, mentioned at sub-clause (4),
admissible as evidence, without calling him as witness in the courts of law.
However, it is entirely the discretion of the concerned court to accept the expert
opinion report as such, or summon the concerned expert for corroboration and/or
clarifications, if any, in the court before accepting it as evidence. If the court does
not summon the expert to attend the court as a witness, the evidentiary value of the
report remains the same. As per the subclasses (3) and (4) of this Section, any
officer, whether he has signed the expert opinion/report or not, may attend the court
for the purpose, on behalf of the expert, provided that he is conversant with the facts
of the case and can satisfactorily depose in the court of law. The expert evidence is
admissible in the court, as one of the documentary evidences 51.

Further, the expert report may be questioned by the court itself, or at the
insistence of the defense. The purpose behind this provision of law is that in our
existing system of administration of criminal justice, generally the burden of
proving the guilt of the accused lies on the prosecution, except in certain cases,
where specific provision to this effect is made. The expert is considered as an
official witness, who is supposed to clarify his technical reports on specific counts,
if required. This is to be done as a prosecution witness in order to prove the guilt of
the accused in the court of law 52.

Inclusion of clause (g) would broaden the base for the application of forensic
science to the criminal justice delivery system of India. Any forensic scientist,
irrespective of his rank in the laboratory, if considered competent, could be notified
by the Government of India for being designated as an “expert”. 53

It is a hard fact that a large number of cases of chemical analysis of viscera

for detection of poison etc. are pending in many forensic science laboratories in
India. Notwithstanding the difficulties or handicaps in the forensic science
laboratories, the suspects have a right to a speedy trial, as guaranteed under the
Constitution of India. The under-trials languish in lock-ups as the speed of the trial
gets hampered due to non-availability of scientific evidence. The delay thus results
into almost near-denial of Human Rights to the individual, apart from having

51 Supra 31, 9.
52 Id, 10.
53 Supra 8.

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possible adverse effects on the justice delivery system. This problem is not new
and in spite of various attemps in the past, it has eluded the solution. Thus the
forensic science laboratories are to be suitably upgraded and streamlined. The law
enforcement authorities should also carry out some screening of cases and
prioritize them before making reference to the forensic science laboratories. In
short, an overall adequate scientific capability of an institution and need-based
references by the investigators would have to be implemented simultaneously. This
has already been done in the advanced countries and can certainly be achieved in
our country, if we are really keen and concerned to provide comprehensive legal
protection to the society. 54

Suitable legal provisions and regulatory methods can definitely control the
growing menace of narcotics and other psychotropic substances. This also requires
analysis of a wide variety of drugs/chemicals on a time bound basis. But in actual
practice, long delays are often associated with the process, which result into long
stay of under trials in custody. This apart from the drug analysis has become more
complex and sophisticated and requires adaptation of validated analytical
techniques to be uniformly followed in all the forensic science laboratories. This
requirement and its compliance need to be looked into more seriously. Drug laws
are generally strict and there is higher possibility of miscarriage of justice due to a
non-standard expert opinion. Apart from the time-bound reporting, this aspect must
also be brought into focus at the laboratory level. The forensic science laboratories
must reorganize themselves and develop in such a manner that their expert
opinions are not only dependable but are also time bound. It is evident that the
society, for its protection, expects better and prompt services from the forensic
scientist. This can be achieve only if this branch of science receives its due priority,
as an indispensable tool for dispensation of justice and the protection of human
rights in our society 55

In Mukhtar Singh v.State of Punjab 56, Supreme Court accepted the

Forensic science expert’s evidence (produce by prosecution) that the fired
cartridges and missed cartridges found at the riffle recovered. In Raghbir Singh v.

54 Id., 94.
55 “Forensic Scientist and Human Rights In India” available at: www.legalservice.com (visited on
Jan.17,2008).
56 AIR 1971 SC: 1971 CriLJ1298.

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State of Punjab 57 the Apex Court said that the science oriented detention of crime
is made a massive programmes of police, for in our technological age nothing more
primitive can be conceived of than denying the discoveries of the science as aids
to crime suppression and nothing cruder can retard forensic efficiency than
swearing by traditional oral evidence only, thereby discouraging liberal use of
scientific research to prove guilt .In Kashinath G. Jami v. Speaker 58 the court held
that the ‘evidence provided by the forensic science laboratory was reliable‘. In
State of Karnataka v. Bhoja Poojari 59, forensic scientist identified the
decomposed body of the victim by skull superimposition .That evidence was held
to be reliable by the Apex Court. In Ammini v. State of Kerala60, the Court held
that report signed by the Joint Director of the Forensic Laboratory is admissible in
evidence. In State of Rajasthan v. N.K. 61, a girl of 16 year was raped .One of the
evidence on which the prosecution rested its case was the report of the Forensic
Science Laboratory, which confirmed the presence of human semen on the lehenga
of the prosecution .The court accepted the forensic evidence and decide the case in
62
favour of the prosecution. In Pawan Kumar v. State of Haryana , forensic
evidence was accepted as reliable for convicting the accused for bride burning. The
court has shown favourable attitude towards accepting opinion of the expert in
deciding cases. 63

7.6 Duties of forensic Scientist

Having established when the service of forensic scientist could be required
there are following duties of the forensic scientist:

• Examine material collected or submitted to provide information previously

unknown or to corroborate information already available.

• Provide the result of that examination in a report to enable the investigators to

trace an offender or to corroborate other evidence to provide a case for
presentation to a court.

57 AIR 1976 SC 91 “1976 CriLJ 172.

58 AIR 1993 SC 1873.
59 AIR1997 SC 3812:1997CriLJ 4420.
60 AIR 1998 SC 260:1998 CriLJ 481.
61 AIR 2000 SC 1812:2000CriLJ 2205.
62 AIR 2001 SC 1324:2001 CriLJ 1679.
63 Supra 25, 44.

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• Present verbal evidence to a court to assist in resolution of the issue as

charged.

• It is essential therefore for the scientist to be able to demonstrate competence

and integrity by attention to issue such as the following:

The scientist can only give evidence on work carried out personally or under
direct supervision. However, an expert witness can interpret factual evidence given
by another witness under oath in the light of scientific finding and knowledge.

Where scientific examination are relied on for legal purpose the methods
used be based on established scientific principles, validated and preferably,
published so they can be scrutinized by the scientific community at large.

Where the scientific findings require interpretation the basis of the

interpretation should be available to the scientific community. 64

7.7 Judicial Approach towards DNA Test, Narco-Analysis Test and

Polygraph Test and Its Impact on Human Rights

The approach of the Courts towards DNA testing and its applications in facts
finding is very guarded one. The Courts are very cautious in following this test as they
think; that it may go against the basic principle of human rights, as the order for such
test may interfere with the personal liberty of that person guaranteed under Article
21of the Constitution65, which must be just fair and reasonable one. 66 The courts also
feel that such an order may violate the right of an accused person protected under
Art.20 (3) of the Constitution. 67 However, it is humbly felt that that this is a one sided
approach of the Court. Will it not be a violation of human rights in case of a child
whose father is denying his acceptance as a biological father? In such a delicate
situation which father i.e. whether societal or biological shall have the right as well as
the duty towards the child. Will the child not have the right to see that his or her
human rights should also be protected and not overlooked by the Courts?

64 Peter White (ed.), Crime Scene to Court- The Essential of Forensic Science 9 (RSC Publication,
Cambridge, 1998).
65 Art. 21. Says- “No person shall be deprived of his life and personal liberty except according to the
procedure established by law”.
66 Maneka Gandhi v. Union of India. AIR1978 SC597.
67 Art.20 (3) says-“No person accused of any offence shall be compelled to be witness against
himself”.

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The Supreme Court in the famous case of Gautam Kundu v. State of W.B. 68
has held that -

1) Courts in India cannot order blood test as a matter or course.

2) Whenever applications are made for such prayers in order to have roving inquiry
the prayer for blood test cannot be entertained.

3) There must be a strong prima facie case in that the husband must establish non-
access in order to dispel the presumption arising under Section 112 of the Indian
Evidence Act, 1872

4) The Court must carefully examine as to what would be the consequence of

ordering the blood test. Whether it will have the effect of branding a child as a
bastard and the mother as an unchaste woman.

5) No one can be compelled to give sample of blood for analysis. From the above
opinion of the Hon’ble Supreme Court, it is clear that no person can be
compelled for blood test or DNA test, but where there is a prima facie evidence
that after a valid marriage if a child is born either during its continuation or
within 280 days from the date of dissolution of marriage and the mother
remaining unmarried then such fact shall be deemed to be the conclusive proof
that the child is the legitimate child of such man. 69 In such circumstances where
any dispute arises regarding parentage of child then the Court can order for
blood or DNA test for the proof of paternity. Such an order by the Court under
the above circumstances may not be considered as injudicious and can get the
cover of just and fair order. However, the above order can be made subject to
the absence of any strong assertion based on non-access by the denying father.
The above order of the Supreme Court which was made in the parentage related
dispute cannot be considered as a binding principle in all different cases related
with DNA or blood testing. Thus in a case of rape, where the victim is the sole
eye witness accuses the alleged offender, the plea of the accused was that the
semen found from the body of the lady cannot be matched with the offender by
asking him to go for DNA testing. In such circumstances, taking the pleas of
accused person’s fundamental right under Art. 20(3) will only lead to the escape

68 AIR1993 SC2259.
69 Section 112 of the Evidence Act 1872 -Birth during marriage conclusive proof of legitimacy.

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of the offender and injustice to the victim. Similarly a rapist father can also deny
the parentage of a child conceived through his illegal act and can avoid his
incrimination on the ground of absence of any evidence .It is therefore
suggested that suitable amendments are required to be brought within the ambit
of various laws dealing with the question related with paternity test’s.

The above opinion of the Hon’ble Supreme Court has also recently been
reflected by the judgment of the Gujarat High Court in Haribhai Chanabhai Vora v.
70
Keshubhai Haribhai Vora where the Hon’ble High Court observed that no one can
be compelled to submit himself for DNA test and to compel a person for undergoing a
DNA test would amount to interfering with his personal liberty. Some opinion was
71
also made by the A.P. High Court in Syed Mohd. Ghose case where the Hon’ble
High Court set aside the order of the family Court which had ordered for DNA test
and made the following observations that before ordering the blood test, either the
DNA or other test the Court has to consider the facts and circumstances of given case
and the ramification of such an order. But the Court cannot compel a person to give
the sample of blood. From the above judicial opinion it is clear that the Courts are
very cautious in ordering for blood or DNA testing in cases of paternity identification
test, but it is humbly felt that the above observation of the Courts cannot be applied in
cases related with rape, murder or mass murder terrorist related crime investigation
cases etc. Such cases deserve to be ordered for mandatory DNA testing by the Courts
on the ground of their societal ramification. 72
73
In Case of Madan Gopal Kakkad v. Naval Dubey the Supreme court held
that a medical witness called in as an expert and the evidence given by the medical
officer is really an advisory character based on the symptoms found on examination
.The expert witnesses is expected to put before the court all material inclusive of the
data which induced him to come to the conclusion and enlighten the terms of science
so that the court although not an expert ,may form its own judgments on those
materials after giving due regard to the expert’s opinion because once the expert’s
opinion is accepted it is not the opinion of the medical officer but that of the court .

70 AIR 2005 Guj 157.

71 2001 CriLJ 2008.
72 Criminal Law Journal 2007, 83-84.
73 (1992)3SCC204at 221-22.

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In Mr. X v. Hospital Z 74, the Hon’ble Supreme court was confronted with the
task of striking a balance between two conflicting fundamental rights; i.e. the AIDS
patient’s rights to life which include his right to privacy and confidentiality of his
medical condition ,and the right of the lady to whom he was engaged to lead a healthy
life .The Supreme Court concluded that since the life of the finance would be
endangered by her marriage and consequent conjugal relation with an AIDS victim
,she was entitled to information regarding the medical condition of the man she was
about to marry and that there was no infringement of the right to privacy. However, as
a corollary to the decision in Gautam Kundu 75 the recent decision of the Supreme
76
Court in the case of Sharda v. Dharampal dealt with the core question of whether
a party to a divorce proceeding can be compelled to a medical examination and blood
test where in the court held that :

• A matrimonial court has the power to order a person to undergo a medical test.

• Passing of such an order by the court would not be in violation of the right to
personal liberty or the right to privacy under Art.21 of the Constitution.

It is significant to note that though no person can be compelled to give a sample

of blood against him for this refusal, in case of divorce proceeding before a
matrimonial court, the court can order an individual to submit himself to medical
examination and in case of refusal, can draw an adverse inference from his refusal.

In Patangi Balarma Ventakata Ganesh v. State of A.P., the Andhra Pradesh

High Court held that the opinion of DNA expert is admissible in evidence as it is a
perfect science .In this case, the DNA expert had deposed as under: “if the DNA
fingerprint of a person matches with that of a sample, it means that the sample has
come from that person only .The probability of two person except identical twins
having the same DNA fingerprint is around 1in 30 billion world population”. It means
that DNA test gives the perfect identity. It is a very advanced science, the court
observed.

In Tbogorani Alias K.Damayanti v. State of Orissa 77 the Orissa H.C. noted

that the only restriction for issuing a direction to collect the blood sample of the

74 AIR1999 SC 495.
75 1993 CriLJ 3233.
76 AIR 2003 SC 3450.
77 2004CriLJ4003.

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accused for conducting DNA test would be that before passing such a direction ,the
court should balance the public interest vis-à-vis the rights under article 20(3) and 21
of the Constitution of India in obtaining evidence tending to confirm or disprove that
the accused committed the offence concerned. In balancing this interest ,consideration
of the following matters would be relevant :

• the extent to which the accused may have participated in the commission of the
crime ;
• the gravity of the offence and the circumstances in which it is committed ;
• age, physical and mental health of the accused to the extent they are known ;
• whether there is less intrusive and practical way of collecting evidence tending
to confirm or disprove the involvement of the accused in the crime ;
• the reason, if any, for the accused for the accused for refusing consent.
78
In Smt. Kanta Devi v. Poshiram , the Apex Court held that the result of a
genuine DNA test is said to be scientifically true .But even that is not enough to
escape from the conclusiveness of Section 112 of the Act, e.g. , a husband and wife
were living together during the time of conception but DNA test revealed that the
child was not of the husband, the conclusiveness in the law would remain
unrebuttable .This may look hard from the point of view of the husband who would be
compelled to bear the fatherhood of a child of which he may be innocent. It is sublime
public policy that children should not suffer social disability on account of the laches
or lapses of parents. For this law leans in favour of the innocent child from being
basterized if his mother and father were living together during the time of conception.

The application of Narco-Analysis test involves the fundamental question

pertaining to judicial matters and also to Human Rights. The legal position of
applying this technique as an investigative aid raises genuine issues like infringement
of an individual’s rights, liberties and freedom. With crimes going hi-tech and
criminals becoming highly trained professionals, the use of Narco-Analysis by the
investigating officials can be very useful, because whereas the conscious mind does
not speak out the truth, unconscious may reveal the information, which could provide
vital lead in.

78 AIR 2001 SC 2226.

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However, defense lawyers and human rights activists viewed that Narco-
Analysis test was a very primitive form of investigation and third degree treatment,
and there were legal lapses in interrogation with the aid of drugs. 79

It is true in Narco-Analysis test, nothing is extracted from the body of the

accused, nor is anything compared nor tallied since what is obtained is statement or
information given by the accused will be either exculpatory or inculpatory and it is
inculpatory statement which is hit by Article 20(3) of the Constitution. Whether the
accused make inculpatory or exculpatory statement will be known only after the test
is conducted and not before that. So it is premature to say the nature o\f the
statement or information, which the accused give under Narco-Analysis Test. 80

The right guaranteed under Article 20(3) of the Constitution is in the

protection of human rights and dignities, which may need consideration in the light
of other equally important provision of the Constitution. Narco-Analysis test
severely impact the right against self-incrimination and have the potential to impact
the fairness of a trial. There is consensus among the High Courts of the Country that
Narco-Analysis may be used as an investigative tool only and not as a source of
evidence.

Unfortunately, after the decision given by the Hon’ble Supreme Court in the
famous case Selvi v. State of Karnataka81 that Narco-Analysis test cannot be
conducted without taking the consent from the accused person otherwise it would be
violative to Article 20(3) of the Indian Constitution.

In Dinesh Dalmia v State 82, it was held by the Madras High Court that
subjecting an accused to Narco-Analysis is not tantamount to testimony by
compulsion. The court supposed about the accused: "he may be taken to the
laboratory for such tests against his will, but the revelation during such tests is quite
voluntary." In this case the Court observed that where the accused had not allegedly
come forward with the truth, the scientific tests are resorted to by the investigation
agency. Such a course does not amount to testimonial compulsion. It is amply clear

79 Narco-Analysis test and violation of human rights and Constitutional rights available on
http://www.lawyersclubindia.com/articles/ -(visited on 24-06-2013).
80 Malak Batt, “Loss of justice for sake of convenience? Narco-Analysis and Brain Mapping: An
examination in light of Article 20(3)”115CriLJ 203(2009).
81 AIR 2010 SC.
82 AIR 2006 SC.

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from the above discussion that conducting a Narco-Analysis test does not violate
Article 20 (3) of the Constitution per se. Only after conducting the test, if the
accused divulges information which is incriminatory, then it will be hit by Article
20(3). Other information divulged during the test can help the investigation.
Therefore, there is no reason to make illegal such a test on basis of
unconstitutionality.

In 2004, in the multi-crore-rupee fake stamp paper case named Ranjit Singh
Brahamjeet Singh Sharma v. State of Maharashtra and Another 83 it was ruled by
the Bombay High Court that conducting the Narco-Analysis test on the accused
person does not violate the fundamental right against self-incrimination. Article 20(3)
of the Constitution states that: "No person accused of any offence shall be compelled
to be a witness against himself." Such statements are not admissible in Narco-
Analysis test.

In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its
ruling after hearing arguments for three days from various parties, including Solicitor
General Goolam E. Vahanvati and senior advocate Dushyant Dave, appointed by the
bench as amicus curiae to assist the court in the case. Telgi and his accomplices are
facing probe by various states' police and other investigative agencies for their alleged
criminal acts. These accused people have challenged the legality of the use polygraph,
brain mapping and narco-analysis by the investigative agencies to probe the crime. 84

In the case of Ramchandra Reddy and Ors. v. State of Maharashtra 85, the
Bombay High Court upheld the legality of the use of P300 or Brain finger-printing,
lie-detector test and the use of Truth Serum or Narco-Analysis. The court upheld a
special court order given by the special court in Pune, allowing the SIT (Special
Investigation Team) to conduct scientific tests on the accused in the fake stamp paper
scam including the main accused, Abdul Karim Telgi. The finding also said that the
evidence procured under the effect of truth serum is also admissible. In the course of
the judgment, a distinction was drawn between “statement” (made before a police
officer) and “testimony” (made under oath in court). The Judges, Justice Palshikar and
Justice Kakade, said that the lie-detector and the brain mapping tests did not involve

83 Air 2005 SC 2277.

84 www.supremecourtcases.com (visited on date 02-12-2010).
85 2004 All MR (Cri) 1704.

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any “statement” being made and the statement made under Narco-Analysis was not
admissible in evidence during the trial. The judgment also held that these tests involve
“minimal bodily harm”.

In Kerala a court recently pronounced that no court order is required to do a

Narco-Analysis; the magistrate said after disposing of a petition filed by the CBI
seeking permission of the court, that filing this type of a plea would only delay the
investigation. The court said nobody could stand in the way of the investigating
agency conducting tests recognized as effective investigation tools. When the
technicalities of the test itself are not clear and uniform, it becomes difficult to accept
the stand taken by the court. 86

In any criminal investigation, interrogation of the suspects and accused plays a

vital role in extracting the truth from them. From time immemorial, several methods,
most of which were based on some form of torture have been used by the
investigating agencies to elicit informations from the accused and the suspects. With
the advancement of science and technology, sophisticated methods of lie detection
have been developed which do away with the use of “third degree torture” by the
police. The scientific tools of interrogation namely- the Lie detector or the Polygraph
test, the P300 or the Brain Mapping test and the Narco-Analysis or the Truth Serum
test are the main three tests that have recently been developed for extracting
confessions. These psychoanalytical tests are also used to interpret the behaviour of
the criminal (or the suspect) and corroborate the investigating officers’ observations. 87
However, such tests generally don’t have legal validity as confessions made by a
semi-conscious person are not admissible in court. The court may, however, grant
limited admissibility after considering the circumstances under which the test was
obtained. 88

The main provision regarding crime investigation and trial in the Indian
Constitution is Art. 20(3). Clause (3) of Article 20 declares that no person accused of
an offence shall be compelled to be a witness against himself. This provision may be
stated to consist the following three components:

It is a right pertaining to a person accused of an offence

86 www.legalserviceindia.com (visited on date 28-02-2012).

87 Ibid.
88 Supra 84.

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It is a protection against compulsion to be a witness; and

It is a protection against such compulsion resulting in his giving evidence

against himself.

The privilege under clause (3) is confined only to an accused i.e. a person
against whom a formal accusation relating to the commission of an offence has been
leveled which is in the normal course may result in the prosecution. A person against
whom a first information report has been recorded by the police and investigation has
been ordered by the Magistrate can claim the benefit of the protection. Further, the
guarantee in Article 20 (3) is against the compulsion to be ‘a witness’. In State of
Bombay v. Kathi Kalu Oghad 89, a Bench of the Supreme Court consisting of eleven
judges held that: “It is well established that clause (3) of Article 20 is directed against
self-incrimination by the accused person. Self-incrimination must mean conveying
information based upon personal knowledge of the person giving the information and
cannot include merely the mechanical process of producing documents in court which
may throw a light on any of the points in the controversy, but which do not contain
any statement of the accused based on his personal knowledge.” The third component
of Article 20 (3) is that it is a prohibition only against the compulsion of the accused
to give evidence against himself. In Kalawati v H.P. State, the Supreme Court has
held that Article 20 (3) does not apply at all to a case where the confession is made by
an accused without any inducement, threat or promise.

The privilege against self-incrimination thus enables the maintenance of

human privacy and observance of civilized standards in the enforcement of criminal
justice. It also goes against the maxim ‘Nemo Tenetur se Ipsum Accusare’ that is, ‘No
man, not even the accused himself can be compelled to answer any question, which
may tend to prove him guilty of a crime, he has been accused of.’ If the confession
from the accused is derived from any physical or moral compulsion (be it under
hypnotic state of mind) it should stand to be rejected by the court. The right against
forced self-incrimination, widely known as the Right to Silence is enshrined both in
the Code of Criminal Procedure (Cr.P.C) and the Indian Constitution. In the Cr.P.C,
the legislature has guarded a citizen’s right against self-incrimination. Thus Section
161 (2) of the Code of Criminal Procedure states that every person “is bound to

89 AIR 1961SC1808.

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answer truthfully all questions, put to him by [a police] officer, other than questions
the answers to which would have a tendency to expose that person to a criminal
charge, penalty or forfeiture”. Arguments have been made that Narco-Analysis
constitutes mental torture and thus violates the right to life under Article 21 as it deals
with right to privacy. Again, the law against intrusion in privacy of individual would
not allow brain fingerprinting evidence to be given in court.

It is well established that the Right to Silence has been granted to the accused
by virtue of the pronouncement in the case of Nandini Sathpathy v. P.L.Dani 90
where it was observed that no one can forcibly extract statements from the accused,
who has the right to keep silent during the course of interrogation (investigation). She
claimed that she had a right of silence by virtue of Article 20(3) of the Constitution
and Section 161 (2) of Cr. P.C. The Apex Court upheld her plea.

In the case of Rojo George v. Deputy Superintendent of Police, 91 the Court

observed while allowing a Narco-Analysis test that at present time the techniques
used by the criminals for commission of crime are very tricky and modern. The
Conventional method of questioning may not yield any result at all. So the scientific
tests like polygraph, brain mapping, Narco-Analysis, etc. are proving very helpful in
the investigation of a case. When such tests are conducted under stringent direction of
the expert, it cannot be said that there is any violation of the fundamental rights
guaranteed to a citizen of India. So it was held by the court that Narco-Analysis test
does not amount to the deprivation of personal liberty or instruction into privacy.

In the case of M.P. Sharma v. Satish Chandra 92, the Apex Court observed
that since the words used in Article 20(3) were “to be a witness” and not “to appear as
a witness” the protection is extended to compelled evidence obtained outside the
Courtroom. In Indian Constitution protection of life, liberty and freedom has
throughout interpreted and article 14, 19, 21 are best example for any Constitution
against right to privacy. In the Indian Penal Code “injury” is defined in Sections 44,
323, 324, 328 and the punishment for which may extend to 10 years, imprisonment.
Hence, administration of narcotic drug amounts to the causing of injury. In
Nuremberg Trial when Rudolph Hess, the most notorious war criminal, ever claimed

90 AIR 1978SC1025:1978CriLJ968.
91 2006(2) KLT197.
92 AIR 1954 SC 300.

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that he was suffering from amnesia, the prosecutor did not perform Narco-Analysis
test on him for there was the possibility of the test to be fatal. Furthermore, the
reliability of scientific tests is not free form doubt. It is necessary to recall background
of Article 20(3) of the Constitution. For this purpose, it is essential that the Union
Government should come out with certain specific guidelines which are to be strictly
followed while conducting such a test.
The permission of the Court and the written consent of the person undergoing
such a test should be made compulsorily. The person who is supposed to undergo
such a test must be given all the necessary details about the test before he is asked to
sign the consent form. Control and supervision of the forensic laboratories should be
made under the autonomous bodies like NHRC and the States Human Rights
Commissions.
NHRC (National Human Rights Commission) has suggested that at the time of
polygraph test a forensic psychologist, a psychiatrist and an anesthetist should remain
present. Similar team can be directed to remain present at the time of Narco-Analysis
with the additional safeguard of entire proceeding audio and videotaped. 93
7.8 Conclusion
At present it has been proved that forensic science play an pivotal role. It is
very difficult for investigating authorities to solve the crime problems without taking
the help from the forensic expert. Really the role of forensic expert is very crucial.
When the question is arise before the court that any forensic evidence which is
produce before the court is right or not. The court will decide the case with the
opinion of the forensic expert on the matter. Because a forensic expert has knowledge
in the field of forensic science and he can give his best opinion on the matter relating
with the forensic science. There is great role of forensic expert in protection of the
rights of the human beings. Forensic expert protect the human rights by given their
opinion on the matter. Human rights are those rights which are not alienable and with
which a person live with dignity. There are various examples of case laws relating
with the forensic evidence in which on the behalf of the opinion given by the forensic
expert, the court decide the case and protected the human rights.

93 Narco-Analysis test with special emphasis on Constitution Available at

http://www.lawteacher.net/human-rights/essays/narco-analysis-test-with-emphasis-on-
Constitution-law-essays.php#ixzz2uGqjykZ4 (visited on date 10-12-2013).

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