Hi Swami,
I am a lawyer but my opinion is not a judgement it is more the perspective how I see the issue you presented.
As I understand the Constitution of India says in article 20 (3)
(...Omissis)
(3) No person accused of any offence shall be compelled to be a
witness against himself.
If the people in charge of an interrogation (police or medical professionals) use the truth serum on a person, with the purpose to know “the truth” regarding some incidents, is evident they want the possible suspect simply become witness against himself (herself).
From my point of view this is an act in violation of his/her human rights. Nobody can be judged having themselves like the only dubious (under drug influence) witness.
Similar regulation about the people that witness against themselves are regulated in the
Indian Code of Criminal Procedure
“161. Examination of witnesses by police.
(...omissis)
(2) Such person shall be bound to answer truly all questions relating to such case Put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture”.
It seems to me that the use of the truth serum might be a quick solution for a failure in the criminal procedure of an investigation.
If this is the case, the people must have the right to appeal in second instance (high court*). If the violations continue then go to the last instance to the supreme court of India (maximum tribunal) it will be the one that have the last word in this issue (see article 136 of the Constitution).
“Right to Constitutional Remedies
32. Remedies for enforcement of rights conferred by this Part.-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. “
In my opinion there are many gaps; why would the forensic team—that carry on an investigation—want to use the truth serum instead to doing a proper scientifically investigation, focusing on the physical evidence of the case?
Is this because they don’t have enough evidence to convict, or is it an easy way (a cheap short cut) to convict somebody even though the method is unreliable according to experts? Is the truth serum the last option or the quick option to close an investigation?
We can find the basic protection of the fundamental human rights in the respective Constitution of every country. The respect of the Supreme law must be demanded for the citizens. (see text of the constitution supra)
To stop this kind of procedure the people need first to activate the constitutional system; second to abolish its implementation declaring it unconstitutional; and third the people should check other legal instruments that can have the same collateral effect. The article 28 of the Indian Evidence Act must be revised and the contradiction with the article 24 about what they understand for “Removal of impression”.
24. Confession by inducement, threat or promise when irrelevant in criminal proceeding - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.
28. Confession made after removal of impression caused by inducement, threat or promise, relevant - If such a confession as is referred to in Section 24 is made after the impression caused by any inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant.
Which kind of Fundamental rights can be affected with the use of truth serum? Well the physical and moral integrity of the person, dignity of the person… and of course the freedom and the breaking of the principle of presumption of innocence is definitive violated. The judiciary and legal enforcement cannot validate the
onus probandi with this method.
We can describe “those methods” as torture according with the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:
Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. [b] This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Sadly the India Government signed the Convention the 14 of October of 1997, but it has yet to ratify it[/b], this can made it difficult to go beyond the frontiers to fight against it. This fact does not mean that internally your country cannot change the law—there is always a legal way out to do justice.
The Supreme Court can recognize some method used by the police, the investigating agency, etc., like torture and that will create an important precedent (see again article 136 of the Constitution).
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgement, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
If the Supreme Court make the use of the truth serum unconstitutional, the confessions obtained under these circumstances can be considered false evidence. The false evidence is regulated in the Chapter XI of the Indian Penal Code, and I would like to refer the article of fabricating false evidence (192) and the punishment for it (193).
Yours sincerely,
Luisa Teresa
