Guidelines on Administration of Lie Detector Test

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

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

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

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

It also observed:

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

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

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

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

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

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

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

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

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

No Lie Detector Test should be administered without the consent of the accused. Option should be given to the accused as to whether he wishes to avail the test.
If the accused volunteers for the tests, he should be given access to a lawyer. The police and the lawyer should explain the physical, emotional and legal implication of such a test to him.
The consent should be recorded before a Judicial Magistrate.
During the hearing before the Magistrate, the accused should be duly represented by a lawyer.
At the hearing, the person should also be told in clear terms that the statement that is made shall not be a 'confessional' statement to the Magistrate but will have the status of a statement made to the police.
The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of interrogation.
The actual recording of the Lie Detector Test shall be done in an independent agency (such as a hospital) and conducted in the presence of a lawyer.
A full medical and factual narration of the manner of information received must be taken on record.
These guidelines of the Commission were circulated to the Chief Secretaries and DGPs of States as well as Administrators and IGPs of UTs by a letter dated 11 January 2000.