Records of the Collegium

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Well recently four more judges have been inducted into our Apex Court, the most powerful Apex Court world has ever seen !!! The collegium system which has been in existence for more than a decade, a creation of the judicial amendment of the Constitution, has drawn criticism from various corners. I do not wish to go into much complex issues; but i just want to high light one fact.

One of the most interesting fact about the collegium is that it maintains no record of its proceedings. This is something which has been left unquestioned; though there is no point in questioning !! The Apex Court is a Court of record. This is very well known to all of us. The irony is that the collegium maintains no record of its proceedings. Dont the people have a right to know how judges of the Apex Court are appointed or is it only at the pleasure of the collegium?? The answer would definitely be that the people have a right to know. I have mentioned in one of my earlier posts; that in South Africa; even during the selection process, public debates are held on the suggested appointments. In India the common man wonders rather even the legal fraternity wonders how the judges are appointed !!! 

Criterions of the Collegium,if any !!!

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Dear friends in my earlier post titled ,"Appointment of Supreme Court Judges ", i posted that there is need for an amendment to the Constitution and the collegium system should be done away with. One interesting thing about the collegium system is that no body knows what are the criterions followed by the collegium in selecting the judges.
Appointment of Judges to the Apex Court of our nation is not a silly matter but one of paramount importance. Why cant this process be made transparent? Let the people also know about whats is happening. Transparency will only bring in credibility. Usually the common man comes to know about the appointments only after the Presidential notification is issued.
The South African Experience
In South Africa, Sections 174 to 178 of the South African Constitution deal with the appointment of judicial officers.Judges may not be members of Parliament, of the government or of political parties. To select judges the Judicial Service Commission first draws up a list of candidates which list must have three or more names than the number of vacancies. The Commission does this after calling for nominations and holding public interviews.Then the President, after consultation with the Chief Justice and the leaders of political parties represented in the National Assembly, chooses the judges from this selection. 
Well in India also the task of appointing of Supreme Court Judges should be left to an independent body which is free from any sort of influence and follows a complete transparent process in all stages of selection of the Judges. Sitting judges of the Apex Court may not be the right persons for the selection of Judges, they are busy with the matters pending in the Court and a sharp scrutiny may not be possible always.
One more thing which needs attention is that there is no proper mechanism to look into corruption charges leveled against the judges.Prashant Bhushan, advocate, Supreme Court, and member, Committee on Judicial Accountability, moots the idea that since there was no credible institution to inquire into charges against judges, a national judicial complaints commission needed to be set up. This body should be independent of both the government and the judiciary. Now, no investigation could be carried out against a sitting judge of a High Court or the Supreme Court without written permission from the Chief Justice of India. 
For the time being, i am stopping here. Will be posting more soon !!!

UK Supreme Court

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Her Majesty The Queen of England on 1st October officially opened The Supreme Court of the United Kingdom at an event attended by senior judges from around the world, politicians and others from the UK.
Replacing the Appellate Committee of the House of Lords, the Court’s creation is a landmark moment in constitutional and legal development. The new home of the Supreme Court is the former Middlesex Guildhall, on Parliament Square. It has been painstakingly renovated over the past two years with new life breathed into the building. Many original features have been restored and brought back to full splendour.
Established through the Constitutional Reform Act 2005, the Supreme Court will hear civil appeal cases from England, Wales, Northern Ireland and Scotland, as well as criminal appeal cases from England, Wales and Northern Ireland. It takes over the devolution jurisdiction of the Judicial Committee of the Privy Council (JCPC). The JCPC continues to be the final court of appeal for certain Commonwealth countries and other jurisdictions, such as Crown Dependencies.
The Supreme Court is set to transform the public’s awareness of justice at the highest level. One of the Court’s fundamental aims is to be as transparent as possible in its judgments and proceedings. For the first time at any court in the United Kingdom, proceedings will be routinely filmed and made available to broadcasters. The building is open to the public during working hours and press summaries of judgments will be provided to the media.
Lord Phillips of Worth Matravers, President of the Supreme Court, said: “For the first time, we have a clear separation of powers between the legislature, the judiciary and the executive in the United Kingdom. This is important. It emphasises the independence of the judiciary, clearly separating those who make the law from those who administer it.  As Justices of the Supreme Court we will be more visible to the public than we ever were when sitting as members of the House of Lords. This is desirable as the Court will only decide points of law of public importance. Justice at the highest level should be transparent and the new Court will have a crucial role in letting the public see how justice is done.”
Jenny Rowe, Chief Executive of the Supreme Court, said: “The establishment of the Supreme Court is an important historic moment. The improvements and modernisation that this brings creates exciting new opportunities to show the wider public how justice is done at the highest level, to increase awareness of the UK’s legal systems and the impact the law has on people’s lives.”

Justice Dinakaran & The Secret Collegium

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The elevation of Hon'ble Justice P D Dinakaran has been kept on hold by the collegium.  The decision of the  collegium will be communicated to the Ministry of Law, where the file relating to the elevation of Justice Dinakaran along with four High Court judges is pending and the Ministry would proceed with the appointment of other four judges to the Supreme Court whose names have been cleared by the collegium. 


But will Justice Dinakaran continue as the CJ of the High Court?? Will he continue to hear matters and decide matters?? If he does so does the rules of judicial integrity allow it. The answer is an affirmative no. I do not question the involvement of Justice Dinakaran in the scandals but due to this issue the credibility of the Judiciary is going down each day. In order to reinstate that credibility in the minds of people, isn't it necessary that he should stay away from the Court and clear the way for a proper investigation and return back with clean hands, if his hand are clean !!!

The collegium has always been silent on the issue. It has never ever communicated its decisions to the open Court or made any statement so far. In the famous Justice Ramaswami's case Chief Justice of India Sabyasachi Mukharji asked Justice Ramaswami to abstain from the proceedings and hence He went on leave.
As Senior Advocate Anil Diwan says "Chief Justice of India Sabyasachi Mukharji’s advice to Justice Ramaswami to desist from discharging judicial functions so long as investigations continued is worthy of emulation." (http://www.hindu.com/2009/10/21/stories/2009102155680800.htm) 

I remember what Hon'ble  Justice Khanna wrote in the conclusion of his Making of India's constitution:
"If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power."

Appointment of Supreme Court Judges

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Article 124 (2) of our celebrated  Constitution says Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years and it also had a proviso attached to it that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

In July 1998, The then President K R Narayanan  referred nine questions to the court for consideration and sought its opinion in the context of the 1993 S.C. Advocates-on-Record Assn vs Union of India case which "has laid down the principles and prescribed procedural norms in regard to the appointment of Supreme Court judges, Chief Justices and judges of the high court and transfer of judges from one high court to another."

A nine Judges Bench in In re Presidential Reference, AIR 1999 SC 1, laid down various propositions and the most important among it is "As to appointment of the Supreme Court Judges, the Chief Justice of India should consult a collegium of four seniormost judges of the Apex Court. Even if two Judge give an adverse opinion, the CJI should not send the recommendation to the Government."

This is the history behind the creation of the collegium system. This present legal position is that once the CJI and the collegium make a recommendation practically nothing can be done to change it. Once a judge is  appointed, it is practically impossible to remove him or her from office because the process of impeachment of a judge by Parliament is long and a kind of herculean task. 


The drafters of our Constitution might have never even thought of this kind of a system. The appointment of the Judges was the duty of the President which has to be done in consultation with the CJI. The Indian Judiciary has grabbed this from the hands of the President and the President now merely gives assent to their decisions. This is nothing but judicial amendment of the Constitution. The recent issues with regard to appointment of certain Judges to the Apex Court clearly indicates that the collegium system has failed. It is high time the Parliament bring in a Constitutional amendment to change this system. As rightly observed by Hon'ble Mr. Justice H. R. Khanna "if no provision were made for amendment of the Constitution, the people would have recourse to extraconstitutional methods like revolution".

Right to cast "Negative Vote"

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Today morning after reading my post on compulsory voting, my friend Ajai was asking me about right to caste a negative vote. He was saying, he has never felt anyone except Dr.Shashi Tharoor deserved his vote. I am pretty sure many others would be feeling the same as Ajai. Often we may not find any candidate who are eligible to get our vote but still we will have to vote for someone or we will have to abstain from voting. In the latter case we are not exercising a valuable right; rather we are forced not to exercise it.
Do we have a right o caste to a negative vote?? As of now the answer is no.
In the voting using the conventional ballot paper and ballot boxes, an elector can drop the ballot paper without marking his vote against any of the candidates, if he chooses so. However, in the voting using the Electronic Voting Machines, such a facility is not available to the voter. Although, Rule 49 O of the Conduct of Election Rules, 1961 provides that an elector may refuse to vote after he has been identified and necessary entries made in the Register of Electors and the marked copy of the electoral roll, the secrecy of voting is not protected herein as much as the polling officials and the polling agents in the polling station get to know about the decision of such a voter.
The Election Commission has recommended in its report on "Electoral Reforms" that the law should be amended to specifically provide for negative / neutral voting. For this purpose, Rules 22 and 49B of the Conduct of Election Rules, 1961 may be suitably amended adding a proviso that in the ballot paper and the particulars on the ballot unit, in the column relating to names of candidates, after the entry relating to the last candidate, there shall be a column “None of the above”, to enable a voter to reject all the candidates, if he chooses so. Such a proposal was earlier also made by the Commission in 2001.
A petition filed by the NGO People’s Union for Civil Liberties seeking such a provision filed at the time of the recent general elections is pending before the Hon’b'le Supreme Court now. The government in this case has informed the Supreme Court that Indian citizens have no "statutory right to refrain from voting". The case which initially came up before a two judge bench has been referred to a larger bench. A two-judge bench of Justice B N Aggrawal (As His Lordship then was) and Justice G S Singhvi felt that the issue needed to be adjudicated by a larger bench as there were certain "doubts" over the interpretation of the ruling passed by a Constitution Bench in the Kuldip Nayar vs Union of India case relating to a voter's right. They opined: "The opening line of para 362 tends to create a doubt whether the right of a voter to exercise his choice for the candidate is a necessary concomitant of the voter's freedom of expression guaranteed under Article 19 (1)(a) (freedom of expression and speech). Therefore, this issue needs a clear exposition of law by a larger bench. "


The ball is now in the Apex Court's court. Lets hope the Apex Court will recognize the right of a voter to cast negative vote.

THE COMPULSORY VOTING BILL, 2009

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Well friends THE COMPULSORY VOTING BILL, 2009 was introduced by SHRI J.P. AGARWAL, M.P. in the Lok Sabha to provide for compulsory voting by the electorate in the country and for matters connected therewith.
Section 2 says:
"It shall be compulsory for every voter who is eligible to vote at an election to
exercise his right to vote when called for by the Election Commission:
Provided that a voter may be exempted from exercising his right to vote—
(a) if he is physically incapacitated from an illness of a serious nature and
produces a medical certificate from a registered medical practitioner certifying such
incapacity; or
(b) if the Election Commission or such other authority as may be empowered by
the Election Commission, on receipt of a request either before or after the poll, from the
voter, is satisfied that there are genuine and bona fide grounds for such exemption."

Well this provision makes voting compulsory and further section 8 lays down the punishment in case of failure to vote. It says:

"Any person, who fails to cast his vote shall be liable to—
(i) A fine of rupees five hundred, or
(ii) two day’s imprisonment, or
(iii) forfeiture of his ration card;
(iv) be rendered ineligible for contesting any election for a period of ten years
from the date of his conviction;
(v) be ineligible for allotment of a plot or a house in a Government owned
organisation;
(vi) be ineligible to get loan of any kind from any financial institution owned by
the Government;
(vii) be ineligible for entitlement to any welfare scheme announced by the
Government from time to time:

Provided that if such person is an employee of the Union Government or the State
Government or the Union territory administration or any public sector undertaking owned or controlled by Union Government or the State Government or the Union territory administration,
such person shall also be punished with—
(a) forfeiture of ten days' salary; and
(b) delay in promotion for a period of two years."

Further section 9 provides certain incentives to persons who has caste their vote despite of their illness or physical incapicity. It says:

"Any person who, despite his illness or physical incapacity has exercised his right to
vote at an election or any person who has exercised his right to vote at all elections held
during a period of fifteen years preceding the commencement of this Act without any break
shall be—
(i) given preference in jobs in the services under the Central Government; and
(ii) given preference in admission to the institutions of higher education."

I would also like to draw your attention to THE CONSTITUTION (AMENDMENT) BILL, 2009 introduced by SHRI K.C. SINGH BABA, M.P. The bill seeks to insert clause (k) in Article 51A. Section 2 of the amendment Act is as follows:

"In article 51A of the Constitution, after clause (k), the following clause shall be
added, namely:—
“(l) to cast vote at elections to the House of the People, Legislative
Assemblies of States and local bodies.”.

Well both these bills are on the same path, one bill makes voting compulsory whereas the other makes it a fundamental duty to cast vote. There is no argument as to the fact that the number of voters have gone down much over the years; everyone agrees on this. Well isn't this because people have lost faith in the system? Is our democracy a failure?? Section 3 of the COMPULSORY VOTING BILL mandates that election commission should give adequate protection and safety to all citizens who come to polling booths to cast their votes. Are our citizens afraid to come to the booths?? In the recent elections to parliament, a present cabinet minister, was first declared to have lost the elections but later it was changed and he was declared as the winner in the elections. Are the hands of the election commission clean?? These are all questions which are difficult to answer.

Will be back with more inputs soon !!!

NB: Full text of both the bills are available at www.answeringlaw.com

Online declaration of judge's assets “still under consideration”

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J. Venkatesan - The Hindu dated 16th October 2009

Rights activist seeks point-wise reply to his application

He also wants copy of the August 26 resolution


New Delhi: The matter regarding finalisation of proforma etc. for putting the details of declaration of assets by judges on the Supreme Court website, is still under consideration, according to the Central Principal Information Officer, Supreme Court, Raj Pal Arora.

Mr. Arora stated this in his reply dated October 10 to an application filed by rights activist Subash Chandra Agrawal, seeking details on declaration of assets by judges.

In his application dated September 17, Mr. Agrawal sought the following information: “Is it true that judges of the Supreme Court have decided to make public details of their assets and wealth, together with those of their spouses and children, by putting all these details on the website of the Supreme Court? If yes, please inform about the time these details will be put on the Supreme Court website; periodicity/mode of updating these details about assets and wealth of judges of Supreme Court.”

Mr. Agrawal also sought a copy of the details of the assets and wealth of all the judges (including those of the Chief Justice of India) of the Supreme Court together with those of their spouses and children as presently available with the CJI or at the Supreme Court. He also wanted any other related information and file-notings on movement of this RTI petition.

Reply vague

Not satisfied with Mr. Arora’s reply, Mr. Agrawal filed an appeal on Thursday before M. K. Gupta, Registrar and Appellate Authority, contending that the CPIO, instead of replying to the information as sought in the RTI petition, in accordance with Section 7(9) of the RTI Act, had replied in vague that the matter regarding finalisation of proforma etc. for putting the details of declaration of assets by judges on website of the Supreme Court “is still under consideration.” He sought a direction to the CPIO to provide a point-wise reply in accordance with section 7(9) of the RTI Act.

He also wanted a copy of the resolution dated August 26 passed by the Full Court of the Supreme Court in this regard.

Judges and Assets !!!

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Well the Kerala High Court judges have set a good example by declaring their assets voluntarily (details of the declared assets available at www .answeringlaw.com ). All 33 sitting judges of the Kerala High Court, including the Chief Justice, have posted details of their assets, along with those of their spouses and dependent children. Well the Apex Court judges are still "afraid " to declare their assets mainly for the reason that "people may misuse it". Well it is the same Apex Court which ordered the aspiring MP's and MLA's to declare their assets publicly who do not even have the protection of Contempt of Courts Act. Moreover civil and criminal defamation cases can be filed against persons who make baseless allegations.


Judges are the guardian of the Constitution. Issue of their credibility is of paramount importance. Without waiting for the legislature to pass an Act or being forced to publish it compulsorily under the RTI Act; the judges should declare their assets. US judges including judges of US Supreme Court make public and annual disclosure of their assets. If judiciary does not have anything to hide; then whats wrong in being transparent??? Should a negative presumption be drawn as judges are not willing to declare their assets???? Well if the system wants to regain its credibility which it has lost; it should be definitely more transparent. Transparency will bring only more credibility to the judicial system as well as the judges.

As i am having my semester exams from 16th of October; i am forced to confine my writing to this limit. Once it gets over i will be back with more inputs on the topic.

The National Commission for Heritage Sites Bill, 2009

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As a step towards protecting the large number of heritage sites lying in a state of neglect, this Bill seeks to constitute a National Commission of Heritage Sites. It seeks to meet the frameworks set out by the UNESCO Convention, 1972. Among other functions, the Commission shall maintain the heritage sites roster and create guidelines for the conservation of these sites.

Highlights of the Bill
  • The National Commission for Heritage Sites Bill, 2009 seeks to constitute a National Commission for Heritage Sites to give effect to UNESCO Convention, 1972. India ratified the Convention in 1977.
  • The central government may notify heritage sites and enter the description of these sites in a heritage sites roster. The Commission shall maintain the roster.
  • The functions of the Commission include (i) recommending policies with respect to conservation, protection, and management of heritage sites; (ii) laying down standards for the development of scientific and technical institutions and courses; and (iii) creating guidelines for conservation and management of heritage sites.
  • The Commission may issue directions to any person who is the owner or controls a heritage site to provide access to such site for its maintenance. The person may be directed to not endanger or damage the site. Any person who fails to comply will be subject to a fine of up to Rs 10 lakh.
Key Issues and Analysis
  • While the Bill has new definitions in line with the UNESCO Convention, the definitions in the existing laws which protect monuments have not been amended. The Bill combined with existing Acts do not fully conform to the provisions related to conservation under the UNESCO Convention.
  • With one exception - of the power to direct owners of sites to permit access and related penalties - the functions of the Commission do not need legislative backing. An alternate formulation to the Bill is to set up the Commission through notification, and to amend existing laws to provide for penalties and directions.
  • The Bill creates a national roster for heritage sites of national importance, to be maintained by the Commission. The National Mission on Monuments and Antiquities was set up in 2007 with a five-year term to prepare a national register of built heritage, sites and antiquities. The Commission's work partly duplicates this initiative.

The Pesticide Management Bill, 2008

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Proposed as a step towards promoting food safety, this Bill seeks to regulate the manufacture, inspection, testing and distribution of pesticides. It also provides for a system of licensing as well as the setting up of a registration committee to register pesticides.

Highlights of the Bill

  • The Bill replaces the Insecticides Act, 1968. It defines a pesticide as a substance used to destroy or control the spread of pests in agricultural commodities or animal feed. The Bill sets criteria by which a pesticide is to be classified as misbranded, sub-standard, or spurious.
  • The Bill establishes a Central Pesticides Board to advise the government on matters related to pesticide regulation, manufacture, use and disposal. It establishes a registration committee to register pesticides.
  • No pesticide can be registered unless tolerance limits for its residues on crops and commodities are specified under the Food Safety and Standards Act, 2006.
  • The Bill establishes a procedure to licence manufacturers, distributors and retailers of pesticides, to be administered by state governments. Pesticide inspectors shall inspect facilities and collect pesticide samples while pesticide analysts shall test the samples collected.
Key Issues and Analysis
  • The Bill defines a pesticide as any substance used to destroy or control pests in agricultural commodities or animal feeds. Pesticides used for non-agricultural purposes, such as health care, are thus excluded from this definition. The Parliamentary Standing Committee has recommended that a broader definition be used.
  • The tolerance limits for pesticides are to be specified according to the provisions of the Food Safety and Standards Act, 2006. However, the relevant provisions of the Food Safety and Standards Act have yet to be brought into force.
  • Pesticides registered under the Insecticides Act, 1968, are automatically deemed to be registered under the Bill. Tolerance limits have not been specified for some of these pesticides.
  • The Bill does not specify penalties for pesticide inspectors or analysts who misuse their powers. The Standing Committee has recommended that penalties be imposed on such government officers along the lines of similar provisions in the Drugs and Cosmetics Act, 1940 or the Food Safety and Standards Act, 2006




NARCO ANALYSIS TEST- Can it strike a balance?

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NARCO ANALYSIS TEST- Can it strike a balance?

By Raghul Sudheesh & Renu C. Paul, NUALS, Cochin


Narco-analysis, as practice of criminal investigation, is the administering of chemical drugs by the police to a suspect or witness in order to extract information from him/her by asking questions while in a drugged state. Generally three grams of sodium pentothal dissolved in 3 litres of distilled water are injected in one’s veins along with 10 per cent dextrose, slowly over 3 hours. This injected cocktail is believed to depress the body’s central nervous system, putting the subject in a state of trance, hence suppressing the rational faculties that would be present if questioned when fully awake. Though this practice of injecting drugs to adduce information has been in use in India for only half a decade, it is gaining popularity in police investigations and has been used in a number of high-profile cases, including that of Abu Salem, Abdul Karim Telgi and the Hyderabad bomb blasts. However view is divided on the admissibility of the results of Narco analysis as evidence in courts, its constitutional validity. 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 encroachment of an individual’s rights, liberties and freedom.

Like any other method of interrogation, the criminal assessment test of Narco analysis also has its pros and cons. The police believe in Narco analysis as a scientific tool of interrogation, which would help a lot in crime prevention, detection and in getting clinching evidence through a supposedly effective and non-hazardous method of inducing hypnosis. Narco analysis is also considered by many to be a very scientific approach in dealing with an accused’s psychological expressions, definitely better than third degree treatment to extract truth from an accused. But on the other hand, doubts have been cast on its reliability and legal validity i.e. admissibility in courts of law.

Truth drug administration suffers from certain drawbacks-

The person to administer them has to be a highly qualified physician. It is always difficult to determine the correct dose of the drug, which varies according to the physical constitution of the subject, but also his mental attitude and will power. A wrong dose can send a subject into coma or even cause death thus resulting in legal complications. If the subject is an abuser of other intoxicants/narcotics, Narco analysis could fail to inhibit them on account of the property of “cross tolerance” between Pentothal sodium and other intoxicants. Moreover, the tests like Narco analysis are not considered very reliable. Studies done by various medical associations in the US adhere to the view that truth serums do not induce truthful statements and subjects in such a condition of trance under the truth serum may give false or misleading answers. In USA, in the case of Townsend v. Sain [372 US 293 (1963)], it was held that the petitioner’s confession was constitutionally inadmissible if it was adduced by the police questioning, during a period when the petitioner’s will was overborne by a drug having the property of a truth serum.

But the other view regarding the legal validity of Narco analysis test is that it is used as an aid for collecting evidence and helps in investigation and thus does not amount to testimonial compulsion. Thus it does not violate the constitutional provision regarding protection against self-incrimination.

Confession made by a semi-conscious person is not admissible in court. The roaming gospel of criminal jurisprudence is that a person making a statement should be in a fit state of mind. Thus a Narco analysis Test report has some validity but is not totally admissible in court, which considers the circumstances under which it was obtained and asses its admissibility. They can only assist the police investigation.

Section 24 of the Evidence Act lays down that a confession made by an accused person is irrelevant in a criminal proceeding if the making of such confession appears to the Courts to have been caused by inducement, threat or promise. The section is very clear on the point that a confession obtained by inducement, threat or promise would not be workable. In a Narco analysis test there is definite element of inducement, so not only fundamental rights of a person is violated, conducting this test would be against the spirit of section 24 of the Evidence Act and the result obtained would be irrelevant in a criminal proceeding. A combined reading of Ss.25 to 27 of the Evidence act is that no confession either made to the police or in the custody of police would be proved against a person accused of any offence. It has been held by the Indian Court many a times that the statements made to the police or in the custody are not admissible. These sections read along with S. 32 of the Act bar statements being admissible even if there is the slightest coercion or intimidation. But the same Courts have given a green signal to conduct the Narco analysis tests at the cost of personal liberty of the person on whom the test is conducted which is a clear cut violation of the legal principles and the constitutional values.

Subjecting the accused to undergo the test, as has been done by the investigative agencies in India, is considered by many as a blatant violation of Art. 20(3) of Constitution. 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 a 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 in the Code of Criminal Procedure (CrPC) and the Indian Constitution. In the CrPC, the legislature has guarded a citizen’s right against selfincrimination, S.161 (2) of the Code of Criminal Procedure states that every person “is bound to 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”. 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, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence. The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3); the privilege against self incrimination available to a person accused of an offence. It has its equivalents in the Magna Carta, the Talmud, and the law of almost every civilized country. The characteristic feature of this principle is that the accused is presumed to be innocent, it is for the prosecution to establish his guilt, and the accused need not make any statement against his will. These propositions emanate from an apprehension that if compulsory examination of an accused were to be permitted then force and torture may be used against him to entrap him into fatal contradictions. The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.

‘Fundamental Rights themselves has no fixed content most of them are empty vessels into which each generation must pour its contents in the light of its experience’.[ Keshavananda Bharati v. State of Kerala. 1973.] The Constitutional principles are the hollow bricks which are to be filled in accordance with the changing needs of the society. Law being a living process changes in accordance with the needs of the society, science, ethics. But this change should be based on the principles of justice and equity. The legal system should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. In a situation where a doubtful and unreliable test like Narco analysis is gaining judicial acceptance and support, we have to think seriously about its legal and constitutional validity in the human rights perspective The difficulties of criminal process are twofold; to trace a crime and to apprehend the person who committed it, which would be mitigated if the criminal process is crafted to enhance the probability of tracing crimes. Narco analysis and the like tests are merely the means to effectuate a society which boasts of a falling crime rate. Narco analysis may be used as an investigative tool but the results are not to be given an evidentiary value which if allowed would be a miscarriage of justice. What is to be brought in is a proper balance between individual liberty and public welfare.

E-mail: raghulsudheesh@gmail.com

Mobile: +91 9447323332

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